Medical Malpractice: An Alarming Situation in Pakistan
The term ‘medical negligence’ is often used synonymously with ‘medical malpractice’ and for most purposes that is adequate. Medical negligence is an act or omission by a healthcare provider in which the care provider has deviated from accepted standards of practice in the medical community and caused injury or death to the patient.
It is usually the use of faulty operation techniques, administration of wrong injections, use of expired drugs, wrong diagnosis and wrong treatment/medicine which leads to serious injuries and even death. More often than not, something as alarming as leaving gauze pieces and instruments in the abdomen of a patient during surgery has also been observed.
We witness reported incidents of medical malpractice everyday in news headlines as the media plays a key role in highlighting and exposing these cases. The menace of medical malpractice and negligence is otherwise usually covered up by administrators of private and public hospitals. One such case was that of a little girl N back in April 2019 who died after a wrong injection had been administered to her. It seems through such cases that doctors may just have got the licence to kill, contrary to how they have sworn to save the lives of people. The case raised serious questions about the right to life, medication safety, responsibilities of the state, accountability of doctors and more.
The main responsibility to penalize doctors who have been negligent in their practice rests with the Pakistan Medical and Dental Council (PMDC), which has been authorized by its Constitution to initiate an inquiry under the umbrella of the Medical Tribunal, punish health practitioners found guilty of violating the medical code of conduct and suspend or even revoke their licence to practice. Despite the presence of proper law and rules, the main institution responsible for keeping a check on hospitals and their doctors has failed to curb medical malpractice. Numerous cases are reported each year where the aggrieved parties have filed complaints related to malpractice by medical practitioners. However, justice or any compensation hardly seems to have ever been served to the aggrieved.
In Punjab, the Punjab Healthcare Commission Act 2010 and in Sindh, the Sindh Healthcare Commission Act 2013 are available to deal with medical negligence in their respective provinces. Section 26(2) of the Sindh Healthcare Commission Act 2013 states the following:
(2) Where it appears to the Commission that the circumstances of a case warrant action under any other law, the Commission may refer such cases to the concerned governmental authorities or law enforcement agencies for appropriate action under relevant laws.
Punishments such as imposing a fine or dismissing a medical staff member or prohibiting their practice in a certain hospital are not always adequate for such crimes. In N’s case, the hospital responsible was fined PKR 500,000 only and ordered to dismiss untrained staff. The increasing negligence of doctors calls for criminal penalty to be imposed as per the criminal laws of Pakistan, with the punishment imposed in line with the provision of Section 318 of the Pakistan Penal Code 1860 which states the following:
“Whoever, without any intention to cause the death of or cause harm to a person causes the death of such person, either by mistake of act or by mistake of fact, is said to have committed qatl-i-khata.”
Section 321 states the following:
“Whoever, without any intention to cause the death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to have committed qatl-bis-sabab.”
Section 300 states the following:
“Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-e-amd.”
Moreover, Section 304(A) of the PPC 1860 specifically provides the following:
“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Doctors guilty of medical malpractice should be given punishment as per the above law in order to set a precedent to avoid medical negligence cases in future. These stringent punishments will create deterrence among hospitals and medical practitioners and lead to the exercising of more care and due diligence while treating patients.
There is a general principle of criminal law that “every sane is presumed to intend the natural consequences of his act”. Doctors who have attained their MBBS degrees and have had practical experience in their field are also presumed to have the knowledge of what the consequences/side-effects of their prescribed medicine may be. Therefore, doctors cannot pin liability solely on the hospital, as the primary responsibility is with the doctors themselves while hospitals may be held liable under the principle of vicarious liability in this regard.
Another grey area is the lack of awareness among the general public, especially with regard to health rights. Lawsuits can be brought against medical negligence under criminal, tort and consumer law of the country. It is also well established under the Constitution of Pakistan 1973 that no one, including doctors, enjoys complete immunity. Every individual citizen of Pakistan should take responsibility and see to it that no case of medical negligence goes unreported. Statistics of cases that go unreported every day are alarming. Therefore, regulatory bodies should be required to conduct awareness sessions for the public at large and inform people of their rights and duties. Social media can also be utilized by playing advertisements on TV for the general public.
There is a dire need to look into the healthcare system of Pakistan. It is also necessary to conduct close monitoring of medical training, regulation of duty hours and work commitment by medical professionals, legal protection for patients and doctors, adequate salaries for doctors, and assessment of professional competence at regular intervals. These measures will hopefully help control medical malpractice at a larger scale. PMDC and other regulatory bodies should also vow to prevent cases of medical negligence and hold doctors accountable through criminal penalties.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
