Medical negligence

In Sri Lanka, litigation for medical negligence has been considered as something alien to our culture and
social milieu. Those who had sought healthcare nearly always held their doctors in high regard and
esteem. The doctor patient relationship was of such a high quality, that it made suing a medical
professional, anathema and a distasteful course of action. The prohibitive costs of litigation and the
trauma of being involved in a lawsuit, were additional deterrents. In recent times however, there were
several episodes that indicate that there has been an unfortunate change in the cordial doctor patient
relationships that virtually indemnified the doctor. The costs and bother of legal action are no longer
perceived as deterrent;. A few cases of medical negligence have been filed and there are threats of more
medical professionals being targeted.
Nevertheless the situation in Sri Lanka does not at present, compare with the conditions that obtain in
other countries such as the USA and Australia. Though it is disquieting, we have yet to reach the stage
where doctors are ceasing to practice because they find it impossible to meet the high cost of medical
insurance. It is true that sensitizing of patients to their legal and moral rights and encouraging their
willingness to assert their rights should serve to improve the quality of medical practice in this country.
But unfortunately the distasteful scenario of the developed countries has been replicated locally, where a
few disgruntled doctors have, for personal or financial reasons, encouraged prospective litigants to action,
even when there were no charges that could be substantiated. Some lawyers have been known to
encourage disenchanted patients and their relatives to go to courts by holding out the carrot of massive
financial gain in the compensation award. This has caused unnecessary expense and misery to many an
innocent doctor. If this trend continues in Sri Lanka, litigation for medical negligence will surely become
a major industry. Paradoxically instead of providing better healthcare this will result in extra cost and
even harm to some patients.
The doctors in Sri Lanka have had to respond to the changing scenario. Consequently the patients will
have to meet the added costs by paying increased medical professional fees. Some doctors have already
raised their fees, so that they could meet some of the costs of potential lawsuits. Yet others, have done so,
to bridge the loss of income consequent to the adverse publicity that ensues when negligence cases
against them are being heard in the courts.
Lawsuits against medical professionals somehow seem to attract wide publicity and exposure in the
media. Regarding this publicity, it is unfortunate that the media often give sensational coverage during the
early proceedings of the case. This occurs especially when the prosecuting lawyers are presenting their
side of the story, which is adverse to the defended doctor. The defence invariably gets shoddy and concise
coverage during the trial. My media friends inform me that this occurs, because members of the public
prefer to read adverse stories about others. It is interesting to note that today; there is an unwritten
embargo in Sri Lanka on reporting of divorce cases. The spicy details of these lawsuits will provide a
stimulus to the public to buy newspapers, yet the media avoid publishing these juicy stories. Could not
there be a similar voluntary prohibition on media coverage during the course of medical negligence trials?
For long before the final conclusion of the series of trials and appeals, the members of the public appear
to have found the defendant guilty, merely by reading the sensational reporting on the case. The damage
is further compounded by the fact that a lot of adverse information is published before the final
determination of the case in the higher courts of law. The defendant may well be finally acquitted on all
charges, but the professional practice of the medical professional could have been unfairly, irreparably
and permanently damaged.

After the case is finally decided on the media could go to town, for a firm decision has been ultimately
reached in the court hearings. This will be just and fair and quite unlike the current situation, where the
defendant has to face a fair quantum of derogatory publicity even when he is ultimately fully exonerated.
In order not to be deprived of their lifes savings as a result of the award of substantial damages, some
professionals have even considered transferring their assets to their spouses or children. Another
disturbing development is that to safeguard their own interests and purely to establish in a court of law
that every conceivable differential diagnosis was seriously considered, some doctors now order several,
sometimes expensive and unnecessary tests. This has been termed as the practice of "Defensive
Medicine". It is a costly exercise and the patients best interests are not being served. It is not uncommon
to find that a CT scan is being insisted upon for the early management of a headache, merely because the
over anxious doctor wants to protect himself. The public should be warned that certain investigations per
se have their adverse effects and haphazardly requesting them could be dangerous for the patient.
The practice of medicine is not a certain science and sometimes, clinical judgement exercised in good
faith in the best interests of the patient may result in harm to the patient. Rarely there may be a fatal
outcome from a clearly rational decision. An appropriate example of this is anaphylaxis and death
following an antibiotic or immunization injection. In the clinical situation the possibility of error
invariably exists. The incidence of error is certainly not proof of negligence.
Medicine is a science and an art. However the medical profession has paternalistically projected into the
minds of the public an image of being all knowing. Most patients have complacently helped to foster this
perception and seek solace and comfort in it. Doctors sometimes wrongly perceive that no patient will
seek advice or care from a person who admits, even honestly to be unaware of the accurate answers to a
large number of relevant questions. However this omnipotent position is impossible to defend in a court
of law and doctors giving evidence or defending themselves fare poorly when they are cross examined. In
this new litigious climate it may be prudent to tell our patients and the public that our knowledge and
skills are limited and that we will strive to do our best within these limitations. No person will sue his
doctor if there is evidence that he acted in good faith in the exercise of his judgement. Most importantly it
must be emphasized that a good doctor patient relationship is the bedrock of prevention of litigation for
medical negligence.