In Sri Lanka Covid related negligence has as far as this writer knows, not been the subject of any litigation, but due to the sensitive nature of issues involving the pandemic, such legal suits are possible in the future. Will anybody sue Trump?
It is not likely, as the White House invitees were by and large members of his one support base — in fact, his own inner circle. But litigation involving medical negligence or negligence with regard to the wanton disregard for maintaining elementary health precautions in the midst of a contagion, is not necessarily are specter of persons. In the most celebrated such case, a former Deputy Solicitor General sued his daughter’s pediatrician, who was a physician with almost venerated credentials. This was the landmark case of Rienzie Arseculeratne vs. Priyani Soysa.
In a case of a baby girl warded at the Kethumathi hospital in Panadura, who had her hand amputated, the hospital staffer that applied a cannula to the baby girl’s arm took the matter right up to the Supreme Court when it was held in the High Court (Western Province) that she had breached a duty of care in the matter of ensuring that the procedure was properly carried out — and was guilty of willful negligence.
The District Judge had held that the assistance of the doctor or a nurse had not been sought, even though they were available at the ward. The Respondent who appealed all the way up to the apex Court held that the amputation of the infant’s arm was as a result of medical misadventure.
TRAINING
Sometimes, the medical staff of hospitals evade civil suits on the grounds that the patient did not follow orders, and as a result contributed to a medical misadventure. Obviously this would not have worked in the case of the fifteen day infant who was warded at the Kethumathi Hospital, and tragically had her arm amputated.
Research in Sri Lanka suggests that system errors dominate the medical negligence landscape. Shorn of all the frills, what that means is that if the hospital has botched the processes or the training of personnel, no one nurse or other staffer can be held responsible.
But here too, systemic issues could be ascribed to the matters dealing with the granting of consent in the practice of surgery for instance, where patients are required to grant consent expressly in the form of a signed document when they are to undergo invasive surgery.
Despite this, as Dr. Avanthi Perera points out in a paper written on the subject, the issues of language and semi literacy could impede a person’s ability to grant informed consent.
But this report from a Sri Lankan newspaper is pertinent while on the subject: Former Sri Lanka Medical Council (SLMC) Chairman Prof. Colvin Gooneratne called for sweeping legal reforms to protect patients against doctors committing malpractice, insisting existing regulations fail to hold physicians accountable as inquires are dominated by the medicalpractitioners themselves. (Daily Mirror)
Prof. Goonaratne, speaking to reporters after stepping down as SLMC Chairman following a controversial nine-month stint, highlighted major administrative problems in the SLMC Constitution. He noted that the present legal structure under the Medical Ordinance Section 105, prevents the Council from making independent decisions regarding complaints of doctors who have made professional blunders in treating patients. Unquote.
CONSCIENCE
So it’s not as if the medical profession is beyond reproach in a Sri Lankan context.
Besides, to the best of the knowledge of the writer, there is still no developed corpus of law to follow with regard to medical negligence cases in Court.
In the landmark decision in Arsecularatne vs Priyani Soysa, the Supreme Court Bench noted in Judgement:
“Doctors have been thriving in the medical market where demand is greater than supply ... Knowing that they are in a privileged position they have been riding roughshod over the under privileged. Even if this judgement fails to rouse the conscience of doctors it should at least make them aware that society is now ready to condemn their arrogance, unethical behaviour and inhuman attitude towards the poor patients”.
However, noted forensic expert Dr. Ravindra Fernando in a review of the circumstances of the case, stated that a dedicated professional had to pay for not doing the impossible which was to save the life of the mortally ill child.
The fact remains that the Supreme Court reversed the judgements of the lower Courts in this case.
CONJECTURE
Though the Supreme Court had harsh words over the fact that Dr. Soysa failed to maintain a proper bed-head ticket it was held that on a balance of probability, such remissness did not have a nexus with the non-diagnosis of the malady.
Court held:
This quality of life the child would have led, if surgery was done under those imaginary circumstances (had the right diagnosis been made) and conditions was considered. Dr. Dias, a medical expert, was rightly not cross-examined on those matters, and the evidence if any on causation, rested purely in the realm of conjecture. This is in all probability, why the Court of Appeal observed ‘If treated in time, the medical evidence confirmed that there was a possibility of the child living for some more time'.
In view of this unsatisfactory evidence on causation, learned President's Counsel for the appellant submitted, that the defendant's liability for negligence should not be based on a mere possibility as distinct from probability and that allegation has to be established upon a preponderance of probability and not on a mere speculative theory. He is correct in that submission. ‘I hold that the plaintiff has failed to prove on a balance of probabilities, that the negligence of the defendant just prior to 20th May 1992, caused or materially contributed to the death of Suhani on 19th June 1992 and thereby caused patrimonial loss to him,’ held Justice Dheeraratne in judgement.
Was there negligence? Yes and no, seems to be what the Court opined, even though the death of the child could not be directly ascribed to such negligence. Seems to have been the right call. But is the law forceful enough to consider genuine instances of medical negligence? Patients will say no, and they will probably have a good ally in Colvin Gooneratne in this regard.
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