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CHAPTER 5

PROFESSIONAL CRIMES
Professional crimes are crimes committed by those who are trained in a specialized field
of occupation to pursue a career as profession in that field. Profession involves an
individual creatively more in mental rather than manual labor. Examples include
physicians and surgeons, lawyers, accountants and specialists like pilots, engineers etc.
Professional crimes differ from occupational crimes in a sense that for occupational
groups relatively no formal and regular training is required to pursue a particular career.
Traders, businessmen, salesmen etc are some examples.

While presenting and analyzing the data, due to the reasons of brevity and limitation of
space, this humble work is restricted only to cover healthcare profession because of its
closeness to human life. It is obvious that medical profession has its own significance
from societal point of view because of its implications on human life and death affecting
every family and it involves something more than money. Although in functional
scenario, it pertains to a relationship of service provider and a customer but it differs in a
sense that service providing is not limited only to money like other professions but it
involves human life. The service provider (doctor) has significant control over life and
body of the customer (patient). Negligence and malpractice are the dominant causes of
complaint between a physician and the patient. Crimes of medical professionals often
reported in media include, actionable wrongs done in diagnosis of a particular illness, in
performance of a surgical procedure, in prescription of a drug and over doctoring for
financial considerations. A new type of crime of organ trade has also emerged on the
social scene where surgeons are found involved in kidney trade for financial gains
exploiting the poor. Crimes of these professionals are especially serious because they
have considerable influence and power over their patients with absolute trust and
confidence reposed by the patient (victim) in particular and society in general. There are
stronger reasons to attribute criminal liability to physicians or surgeons than before;
because with advancement of society, hospitals and doctors are working with corporate
objectives than service to humanity. These overriding objectives saddle the professionals
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with more obligations towards their patients as cost of their services is not free to the
patients. The liability features emanating from the cases included in this humble work
include misfeasance, malfeasance, non feasance and crimes of professional privilege.
There is no law to judge the standards of conduct of a doctor except 1Code of Ethics. This
Code of Ethics is promulgated by the Pakistan Medical and Dental Council [PMDC], a
statutory body to regulate medical and dental profession in the country. This Code of
Ethics is more or less in consonance with code of ethics promulgated by world medical
and dental association. Ethical rules are similar for physicians in most countries that
follow the Hippocratic Oath. They have no formal legal force, but can be used as a
reference to provide answers to individual problems. The Hippocratic Oath emphasized
on human values of dignity and respect for human life, compassion, justice, honesty,
gratitude and sanctity. Prominent features of medical practice even today are based on
scientific and medical ethics formulated by Greek Physician Hippocrates (377-460 B.C).
He is traditionally regarded as the founder of medical ethics (Catherine, 2001 p.28 and
Davey, 2001, also see Qidwai, 2004). It is its drive to the heart of medicine that makes
the Hippocratic Oath inspiring even today (Emanual, 1990).

With development of

societies and social changes now there is more emphasis on human rights, these ethics
were formalized into laws regulating the medical profession. This is more in practice in
societies where personal patient-doctor relationship has changed into consumer-service
provider relations. The Hippocratic oath is sworn by graduating medical students at more
than 60% of US medical schools, and is perhaps the most enduring medical oath of
Western civilization (Qidwai, 2004). If a physician can study the oath more explicitly,
this strengthens his dedication to the welfare of patients, and the effort will be worthwhile
(Pellegrino, 1990).
Reflections on Legal Provisions
Medical ethics are the conventional rules binding on a doctor to perform his professional
obligation. There are two provisions of law that can be operative against white-collar
1

The current code of ethics was promulgated in 2001 and is a revision of the code of ethics approved by
the Council in 1968 and was further revised by council in 1974 This code was further revised and
promulgated in 2001 to comply international standards of ethics.

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professional criminals. These are civil remedies under general law of tort and criminal
liability under public law. There is a liability towards the individual that may be called as
private order of the society and is generally covered under general or special law of tort.
Apart from a civil remedy of suing a professional physician or surgeon for economic and
non economic damages under the law of tort, there is no specific law regulating the
medical malpractice to provide civil remedy to a victim in Pakistan. The general law of
torts regulates rights and obligations of citizens in a free society. A tort is defined as an
act or omission which is unauthorized by law, and independent of contract that infringes
some absolute right of another; or some qualified right of another causing damage or
some public right resulting into some substantial and particular damage to some person
beyond that which is suffered by the public generally; and gives rise to an action for
damages at the suite of the injured party (Salmond, 1987). Tort law is essentially
attributable to private individuals who commit wrong doings to other private individuals
in meeting their obligations who interact and deal with them in their mutual social role in
society.

The essence of tort law is to reallocate risks when one person has wrongfully and without
consent caused harm to another (Earnest, 1990) emphasis added. In case of professional
negligence of doctors, obligation under law of tort is created because they hold
themselves to be possessing special skills and knowledge and they are consulted by their
patients who submit to their advice while undergoing treatment. Hence, they owe a duty
to their patients to use care and due diligence and in case of failure; they are liable under
law of tort (Anoop, 2005). The criminal liability may be in addition to liability under tort
law. The law of criminal liability is laid down in Penal code. It is that sub set of public
legal system that regulates relationships between the state and citizens. There is a general
provision under Pakistan Penal Code2 to deal with professional malpractice or
negligence. Gross negligence or act of malpractice leading to injury or death of a victim
is culpable under section 318 and 319 of this code. These sections deal with offences of
qatl-i-khata (non intentional death) and maximum penalty prescribed by law is under
2

Pakistan Penal Code 1860 is a comprehensive law dealing with conduct of citizens. It was adopted from
Colonial British legacy after the country got its independence in 1947. Several amendments have been
made in original law to bring it in conformance with present day need of society.

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Islamic provision that is diyat or compensation and imprisonment for a term which may
extend to five years as tazir (punishment under state law other than Islamic punishment).
Section 318 deals with offences of qatl-i-khata. It provides that whoever without any
intention to cause the death or harm to a person, causes death of that person, either by
mistake of act or mistake of fact, is said to commit qat-i-khata. In such type of murder
charge there is lack of intention as in case of death caused by a surgeon or physician due
to negligent or incompetent handling of the patient. Here penalty is obviously lesser than
that for intentional murder where penalty is death. This provision of law is perfectly
applicable to medical malpractice where in case of deliberate act on the part of accused
person (surgeon or physician) to do one thing but because of mistake of act or of fact the
end result of such an act was different from that intended by accused person (surgeon or
physician). Elaborating provision of this section superior court has ruled that act depicts
intention of doer, who is supposed to know possible consequences of his act but doer of a
rash and negligent act shows his recklessness and indifference about its consequences
(Monthly Law Digest, 1999 p.2271).

It is worth pointing out that despite abundance of cases of deaths caused due to acts of
negligence and professional malpractice, not even a single doctor has been penalized
under the provision of any law. There are occasional cases where doctors were implicated
under the provision of law but they tend to take shelters behind peer pressures and
technicalities of law. The lax criminal justice system particularly the police adopts lenient
attitude and remains reluctant to register cases or prosecute them even if some influential
victim has succeeded to get a case registered against a doctor. For example, in a case
registered against a doctor, for causing death of a baby boy, PMA gave call to all doctors
to go on strike to pressurize the government to withdraw the case (Doctors Protest, 2005).
The Supreme Court rather had to admonish district Police Officer for delay in submission
of case to trial court in medical negligence case against a doctor. The doctor had operated
upon his lady patient in a private clinic without proper infrastructure and blood
arrangements. Both the lady and new born baby died soon after the operation due to
blood loss (Delay in Challan, 2006). When the trial somehow proceeded in the court, the

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doctors in connivance with lawyers took shelter behind technicalities of law that there
was no post mortem carried out to ascertain cause of death of the victim.

Work Scenario

To provide for a better societal outlook to examine the social scenario in which
glamorization and de-stigmatization move together, it is worthwhile to present an account
of working environment and functional infrastructure that facilitate this criminal
behavior. Provision of health care services is primary responsibility of state. The state
attempts to provide healthcare facilities through a three tier system. It includes basic
health units and rural health centers. These provide acute and ambulatory healthcare
services. Inpatient care is provided at Tehsil and District Headquarters hospitals. Tertiary
care is provided by teaching hospitals attached to District Headquarters hospitals. These
facilities often remain fund starved and except for some basic tests and medicines, the
patients are asked to arrange for the medicines and surgical accessories. During the year
2006, an amount of Rs.50.0 billion was spent by the government that comes to only
0.57% GDP and estimated $ 0.5 per capita for a population of over 170 million.
Population per doctor is 1254. Population per dentist is 20839 and population per nurse is
2671(Government of Pakistan, 2007b). There is just one specialist available to 14500
people and 320 beds available for 100,000 people (Pakistan Medical Association, 2005).
With a few exceptions, most of the healthcare facilities give deserted look where even no
qualified doctor is appointed. The health care facilities do not meet even the minimum
standards. There are no defined standards to spell out details, qualification and strength of
staff for establishing a basic health unit or rural health center. The salaries paid to the
doctors and staffs are meager and unrealistic.

The doctors working at government hospitals prefer to set up parallel facilities for their
private practice and they use their public positions to lure patients for their private
consultation. Although this private practice by government employed doctors is banned
in some cases. The career structure of doctors for promotion and progression is non
existent.

There are no laws to regulate and check private practice of doctors neither

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there are any minimum standards to set up private clinics. This social milieu creates
ample opportunities for fake doctors to practice medicines and perform surgeries. These
quacks outnumber total number of qualified doctors. Rich people have possibility of
availing state of the art healthcare services and the poor pays the price of being poor.
These circumstances have transformed healthcare sector into a corporate heaven for
white collar crimes of professionals and quacks where they have fertile ground to
hoodwink their victims for financial gains. Health care insurance is an alien concept to
the society. The doctors are not required to pay any premium to cover their mistakes and
misdeed because the society is non resistant to their negligence and criminal behavior.

CRIMES OF PROFESSIONAL MALPRACTICE

Everyday news of medical malpractice hit our ears and eyes as these are highlighted by
the media. The professional physician or surgeon remains unpunished for multitude
reasons; both sociological and political. Here are some case examples hinting at
prevalence of deep rooted disease of criminal tendencies among the medical
professionals.

Omaya Shunt in the Head

Mr Umeed, a victim of professional negligence of doctors explains how he lost his wife
due to gross and culpable negligence of doctors of Khan Hospital. A lady of 38 years of
age was treated in citys most expensive and well equipped hospital having matchlessly
advanced facilities. The lady was admitted to the hospital and was diagnosed as Acute
Lymphoid Leukamia (cancer) and was advised four doses of chemotherapy. An Omaya
shunt was fixed in her head to inject medicines for this treatment. After administering
four doses of chemotherapy, bone-marrow test revealed complete cure and the patient
was discharged with clean chit. The doctors did not remove her Omaya shunt while
discharging the patient neither the patient could point about it. This happiness and
recovery of the patient proved short lived when just after 2 months of discharge from
hospital, she experienced weakness and continuous fever. The doctors re-admitted the

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patient and diagnosed relapse of Acute Lymphoid Leukamia and advised further two
doses of chemotherapy. Trusting the doctors, the husband agreed for this treatment and
these two additional doses of chemotherapy were successfully administered. The initial
symptoms of weakness and fever did not vanish despite repeat doses. The doctors then
decided that the patient should undergo bone marrow test and it was done the next day.
At the same time doctors suddenly decided to remove Omaya shunt through a surgical
procedure without carrying out a thoughtful evaluation of her state of health. The doctors
did not bother to inform the husband and sought hurried consent from the attendant,
illiterate sister of the victim, without any information and explanation about the
procedure. When the patient was brought out of operation room she went into coma and
was continuously suffering from episodes of acute drowsiness due to excessive bleeding
in the brain caused by mishandling during the process of removing Omaya shunt. When
the husband enquired from the doctors about deteriorating state of his wife, one of the
two doctors informed him that surgical procedure was done at low level of platelet counts
of 23000 that was dangerous. He denied responsibility for this negligence and insisted
that his senior surgeon made a decision to carry out surgical procedure of removing
Omaya shunt although it was not so urgent. The senior surgeon could not satisfy except
expressing his sorrows. He proceeded to explain that if the bleeding did not stop there
was only 1% chance of her survival as there has been excessive bleeding owing to
removal of Omaya shunt. The two doctors advised the respondent to give consent for a
last ditch effort to save life as they decided to do some more surgical procedures in order
to undo the effects of bleeding. The husband had no option and agreed to this surgery. In
early morning next day, the two doctors informed the husband that her wife has already
expired before further surgery and they felt sorry for this, frankly admitting their mistake
in negligent handling of the case. Later, the husband approached the doctors to know
about cause of the death and requested them to issue formal death certificate. They
ignored his request and every time he approached them, they adopted delaying tactics.
When they were aggressively pursued, the junior doctor issued him a certificate on
ordinary chit recording brain death as cause of death of his wife.

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In this case the death resulted due to two main causes such as incompetent handling of
the case where the doctors undertook surgical operation to remove the Omaya shunt
when the surgery was performed at a time the patient had very low level of platelet count
at 23000. Secondly the surgery itself was performed in an incompetent way, without any
life threatening emergency and without observing standard medical protocol required
even for a normal procedure. Resultantly bleeding in brain could not be stopped after
surgery. Perhaps doctors did this mistake of carrying out a surgery without an objective
assessment of the patient, to correct their earlier mistake of not removing the Omaya
shunt when the patient was discharged after administering initial doses of chemotherapy.
The doctors did not bother to give an appraisal of the patients health and their course of
action and associated complications to the relatives to seek their consent. To complete
the ritual, they got a hurried consent from the illiterate sister without giving sufficient
information, so it was not an informed consent by any standards. Later, when the victim
requested the hospital to provide him details of medical treatment, surgery notes and
nursing chart etc the hospital refused to provide these details stating that their protocol
does not allow them to provide medication records to the patients or their relatives.
Unfortunately, there is no law forcing the hospitals to provide the medical records
relating to the treatment of a patient. The case is more complex in case of private
hospitals.

A frustrated husband explained this outrageous treatment of the hospital in following


words:

They are running this hospital like a corporation where patients and their
relatives are required to pay their bills in advance like charges of a corporation.
They claim to serve the humanity but they are in fact minting money from the
public lured through their marketing propaganda that they have best of the
facilities at reasonable costs. The unsuspecting public frustrated with poor health
care facilities in public sector, rush to these private hospitals but these hospitals
have converted themselves into expansive enterprises working only for
maximizing their profits. The doctors at these hospitals forget all norms and ethics
of their profession and tend to protect their own class even if they work in an
unprofessional manner and play with the lives of innocent people. They fully
exploit absolute faith of the patient and make use of ignorance of the public to
misguide them to fleece money. These doctors have unquestionable authority and

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there is no mechanism to check their malpractices and acts of reckless negligence


and want of care towards their professional obligations. (Umeed Ali).
This venting of anger by the aggrieved family may seem exaggerated but everyday
happenings show it otherwise to be very close to unfortunate reality of our life. The
electronic and print media daily project horrible stories of professional negligence of
doctors involving diagnosis of particular illness, in performance of surgical operation or
in prescription of a drug, where victim is the ignorant, unsuspecting and unaware public.
The doctors are bound to follow the code of professional ethics promulgated by Pakistan
Medical and Dental Council [PMDC]. At the time of being admitted as a member of
medical profession, a doctor takes an oath to devote his life to the service of humanity,
honor the noble traditions of medical profession (PMDC, 2001).

The professional

obligation of doctor is doing of good and active promotion of good, kindness and charity.
This principle of beneficence obliges a doctor to abstain from injuring others, and help
others to further their legitimate interests by preventing or removing possible harm
(Catherine, 2000). The only exception is that such duty should not conflict with other
stronger duty such as a duty of doing justice ( Tom & James, 2001).

But in our scenario the deviant behavior of privileged class of professionals within the
scope of Code of Ethics indicates that they acted utterly in violation of their professional
liability. They failed to timely respond to the health care needs of their patient, acted
against the interests of the patient whereby they did not bother to evaluate weakening of
physical and mental condition of the patient, carried out surgical procedure without any
informed consent and finally refused to provide medial records to the patients relatives.
This all being against the Code of Ethics that clearly stipulates:

The patient has right to receive information from physicians and to discuss the

benefits, risks, costs of appropriate treatment alternatives, and optimal course of


action. Patients are also entitled to obtain copies of summaries of their medical
records, to have their questions answered, and to receive independent additional
professional opinions. (para 10.1 of code of ethics).
These criminal acts of omission and commission are culpable wrongdoings contributing
towards the deterioration of health of poor lady. The deviant doctors went unpunished

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because there is no culture of suing the culprits unlike USA and Europe neither there is
trustworthy legal structure. The work of doctors is highly technical and only a technical
mind can understand what wrongs they do while treating their patients. There activities
remained concealed from the patients or their surrogates. The relatives of the patient are
ignorant of what ill treatment has been inflicted upon them and there is no mechanism of
professional accountability in place. A leading lawyer practicing in medical and other
torts explains this scenario in following words:

I have come across many victims who come and discuss their sufferings at the
hands of doctors. Initially they are very vocal and active against the doctors and
pledge to sue them for damages. With passage of time their activism dies down.
They are fearsome of lengthy court procedures and show little patience and
resilience to absorb the shocks of judicial process. They feel that after suffering at
the hands of doctors, they are entering into another trouble with the lawyers. It is
very difficult to convince them to have faith in the courts and ultimately they are
going to get justice in the form of compensation for wrongs done to them.
However, very few get convinced and as a result, culture of suing for malpractice
could not develop and the culprit doctors have no fear of accountability and they
walk out freely as if they have done no wrongs. This situation is promoting a
culture of high handedness and criminality among the professional doctors and
society at large remains the ultimate victim. (Maqsood, personal communication,
March 7, 2007).
The judicial system of the country has its own weaknesses and its credibility remains
questionable in the eyes of general public. The recent developments of ousting judges of
the superior court by the military regime to suite their own interests to stay in power have
further shaken confidence of public, fostering a culture of fear, insecurity and
shelterlessness. The government, faced with crises of illegitimacy continues to attend to
their own difficulties and have no time to work for effective legislation to regulate illegal
conduct of white-collar Professionals. In this social milieu, it is evident that when there is
no concern for accountability or fear of being caught, there are more incentives,
probabilities and motivation available to the criminals. Absence of a vibrant, secure and
responsive judicial system discourages the public to raise their voice against injustice,
misdeeds and crimes against them and the society. This de-stigmatization of society
promotes glamour for criminal acts and society is forced to pay for such de-sensitized
approach towards individual sufferings. Another lawyer defended the judicial system and
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blamed incompetence of lawyers and the public for questionable credibility of judicial
system:

Our judicial system is not slow unless the lawyers manipulate to slow down
keeping the client on spending spree. It is the lawyer who is to push his case and
not the judge. The procedural law provide for all remedies where delay
is being caused but it is skill of the lawyer who must use it to secure quicker
relief to his client. A judge is left with no option to speed up the trial when
his attention is drawn to such delaying tactics by opposite party. Even if things are
delayed, the lawyer still has option to approach a superior court to seek direction
for disposal of his case within a fixed time frame.(Ishaq, personal
communication, March 11, 2007).
These comments from the lawyer, rather reflect ideal situation that is surely different
from ground realities. A litigant once entrapped in a civil or criminal case, must continue
paying money to lawyers and court staff on each hearing. Long waiting time and
frequent adjournments are not the only irritants of the judicial process. There are many
more irritants that keep laymen away from involving in litigation as long as he can.
Unless the society actively assert to exercise their rights and individuals are proactive, the
social environment will continue to encourage the criminal to move without any fear of
accountability.

Incompetent Endo-Scopy

A lady of 65 years of age explains her ordeal caused by negligent handling of her case by
doctors at a prominent hospital. She was admitted with complaints of bleeding peptic
ulcer with hemoglobin level of 7.3 gm/dl. She was moved to special care unit of the
hospital and was required to be administered at least 4 pints of blood to raise the
haemoglobin level. Despite her shifting to special care unit, she was administered only
one pint of blood and subsequent infusion of blood was delayed by about 4 hours. She
was shifted for urgent endoscopy without additional transfusion of blood despite the fact
that there was a sufficient stock of blood in blood bank and patients relatives had
arranged 10 volunteers in addition. The physicians concerned still did not act with due
diligence and during endoscopy discovered that the patient had large ulcer covered with

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slough which was seen occupying almost entire bulb of duodenum coupled with
prominent fold of mucosa. The doctors carelessly proceeded to take a sample of biopsy
from that edematous area without any informed consent or careful evaluation. In this
process profuse bleeding started from the ulcer site so much so that the patient vomited
blood clots. The specialist at this stage came to know of low haemoglobin level and
started shouting at nursing staff in panic. Due to profuse bleeding and delayed transfusion
to make up the deficiency, the patient developed ischemic renal injury and doctors were
constrained to abandon the endoscopy and went on to refer the patient for arterial coil
embolisation requiring surgery. The patient was rushed to radiology unit and radiologists
report revealed that the patient was in hypovolemic shock with a blood pressure of 80/60
mmHg when she was brought to the procedure room. The embolisation procedure was
done with a microcath passed through the leg. This further resulted into wound infection
at site of micro cath and Deep Venous Thrombosis (DVT clotting of blood) in the leg
below the level of arterial puncture and pressure point. The lady maintained that this was
also caused due to negligence and carelessness of doctors. She further added that she
vomited blood in massive quantum which soaked her gown, hair and face. Despite her
repeated requests, no one cleaned her body and she remained in this state of dirty smell
and helplessness for over twelve hours unless her attendant protested and called the
supervisor to intervene. This also reflects poor and reckless compliance with aseptic
requirement necessary in such cases. The lady further added, that it was interesting rather
sad to note that the doctor responsible to mess up endoscopy due to his negligence and
incompetence never showed up despite repeated calls and messages by the hospital staff.
The patient was later attended by another consultant. After about few days she developed
swelling on her right leg. The consultant doctors then decided to put in IVC filter and
this invasive treatment was about to start but the relatives of the patient were alerted by
then and they discussed the matter with their family physician in USA who advised low
molecular weight heparin. On their insistence the doctors were constrained to reconsider
their decision and next day, a senior consultant was called and he agreed to this type of
treatment. The patient was discharged from hospital with swollen leg with advice for
follow up treatment. The patient was burdened with heavy amount as hospital bills for
this dreadful experience and she went with more wounds than healing the one brought by

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her. She was taken to Mayo Clinic, Rochester, Minnesota USA by her daughter where
she was symptomatically treated and cured with advice for annual follow up. On her
return from USA the lady requested the hospital for medical records, surgical notes and
log book and names of doctors and paramedical staff treating her during her admission.
The hospital did not respond despite repeated requests.

The case of this lady is an example of violent white-collar crime in the sense that she
suffered because of incompetence, carelessness and deliberate violation by her doctors.
Once in trouble, the lady was deserted by the doctor instead of consulting his colleagues
to arrest the situation, the attending doctor vanished from the scene showing weak moral
courage and professional strength. The established custom of the profession is that
essence of decision making lies with the patient after he has been given full details of
illness by the examining doctor. In developing traditional conservative societies like ours,
this decision making is mostly done by family members who stay in touch with the
doctor and the patient is generally kept out of anxiety of knowing his disease or health
status. However, in this case example the doctor neither explained details of treatment to
the family nor he sought consent from any one. He even did not ensure that proper blood
transfusion has been conducted to bring the patient to a befitting position to afford
clinical procedure. This criminal conduct of the doctor is not reason based but is
discretion based where rights of the patient are completely violated without any
thoughtful deliberations. This is rather a practice followed across the profession in our
society. The Code of ethics emphasizes that:

The patient has the right to courtesy, respect, dignity and timely responsiveness

to his
or her health needs. (para 10.3).The patient has the right to continuity of health care.
The physician has an obligation to cooperate in the coordination of medically indicated
care with other health care providers treating the patient.(para 10.5).

The daughter of the lady, who was in USA at the time of her treatment, explained the
difference between professionalism and answerability in Pakistan and USA in following
words:

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As the doctors enjoy unquestionable authority in Pakistan and there is no check


on their day to day working, such violations of ethics and professional obligation
continue to prevail. They can desert the patient half way of her treatment to
pursue another profitable activity or run away when their competency fails to
address the situation. They do not prefer to consult their senior
colleagues if
they end up in difficulty. They ruthlessly ignore their primary obligations towards
the patient and hospitals employing these doctors also remain indifferent towards
their malpractices and rather they protect and patronage them by failing to provide
details of treatment, documents and names of doctors treating the patient. It is
horrible situation that there is no law that can regulate conduct of these
professionals and the hospitals those are running like a profit generating
enterprises. If such situation arises in USA the doctor must have to pay millions
as compensation for negligence and may be his license to practice would have
been cancelled. Every doctor is USA is compelled to have his professional
negligence covered through an insurance for any liability arising out of his
professional malpractice or negligence but in Pakistan neither they have any fear
of such prosecution not there are aggressive victims to pursue such negligence.
There are no competent lawyers to make a case and there are no courts to
understand the gravity of harm doctors are doing to the society. I wished I could
file a suit for damages against the doctor and the hospital merely to set a
precedence and send a message that human life is not so cheap but I do not know
how long will it take and what will be the result of such exercise.(Afsheen,
personal communication, October 7, 2007).
In a developing society like ours, concept of suing a physician for his negligence is alien
both to victims and the physician and perhaps to the courts as well. This gives the
physicians and surgeons unbridled opportunities to deal with a patient the way they
choose, whether they are competent or not and whether their diagnosis is correct or not?
Neither regulatory mechanisms is in place, nor are the procedures for inquiring against a
doctor so enduring that a common man can withstand. Doctors betray the confidence of
their unsuspecting patient and the victim patient continues to pay financially and
physically.

This trend is more in practice in rural society where majority of the

population is vulnerable. This sort of negligence and malpractice is a broad based


category of tort law and essentially is a white-collar crime because it involves breach of
trust. The medical professional causes unrecoverable harm and injury to his patient due to
his failure to meet established standards of care warranted by his professional obligations.
The purpose of suing a professional physician or surgeon has two dimensions, firstly to
compensate the victim and secondly such penalty must serve as deterrence for other
professionals and in the end society gets benefited from such steps of corrective social
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engineering. The culture of medical malpractice litigation is virtually absent from our
developing society. There is a social dimension of this desentization of deviant practice
of professionals by the victims. The unsuspecting traditional society places unlimited
confidence in physician that carries inherent dangers of providing unlimited opportunities
to the physician for malpractice and fleecing money from the victims. The privileged
position of physician grants him absolute immunity and when something goes wrong it is
believed to be divine will. The privileged position of physician is derived through a
historical understanding of the healer as an instrument of mercy (Moazam, 2000). This
confidence often integrates the physician into family and it is usually not possible to seek
treatment from a medical professional unless he is known to the family or at least some
such reference exists. This privilege inspires glamour for professional deviance among
the physicians and thus their deviance goes unnoticed and concealed from the victims.
Although this trend is slowly changing in some smaller educated and inquisitive
segments of society but due to absence of an institutional mechanism this white-collar
crime continues unabated. There are no civil society groups that could resist and halt this
alarming situation. There is no data recording cases of professional malpractice as there
are no appraisal surveys or performance evaluation by any regulatory organ to assess the
damage being caused to the society. This also places the victim in disadvantageous
position and this area of white-collar criminality remains concealed within the four walls
of operation theatres, patients wards, clinics and the doctors. There are no lawyers to
work on contingency fee basis and there are no consumer friendly NGOs to promote
awareness. On the contrary professional physicians in USA and Europe are under so
much pressure from legal profession and consumer groups that physicians have to resort
to defensive medicines (NetWork, 2006). Such pressures are, however, regulated through
comprehensive and balanced legislation in each state and civil society organizations are
proactive to pursue actionable wrongs to assist the victims. Our society is voiceless and
hence element of de-stigmatization is prominently observable among both the victims
and the perpetrators.

Defensive medicine is a practice of advising medical tests and procedures or


consultations of doubtful or irrelevant clinical values so as to exclude every possibility to

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protect the prescribing physician from medico legal litigation (Bajpai, 2006) where the
patient raises any claims. Some jurists call this practice as crooked and preemptive acts of
physician so that in case something goes wrong, physician has in record, something to
show in his defense. This adds to the costs of patient care that is to be borne by the
victims. In our society physicians do not have to adopt these techniques because neither
the patient can afford it, nor the physician needs it. In a survey recently conducted in
USA there are startling findings when compared to our social scenario: Surgeons
annually pay an average of USD.75,000 on insurance premiums. On top of these
premiums, doctors who practice very defensively add as much as USD.21 billion to the
health care bill every year. Twenty percent of the tests prescribed by doctors were not
necessary, but they are the result of defensive practicing by doctors who do not want to
be held liable (quoted in Bajpai, 2006) A UK based surgeon of Pakistani origin explains
his experience regarding professional liability:
There is a general perception among many Pakistani immigrants settled in UK,

USA and Canada that Pakistani surgeons are more skilled than their counterparts
in these countries. This belief is more prevalent among those Pakistani
immigrants who are yet not entitled to medical insurance cover or yet have no
such cover affordable to them. Some of these people have their personal
experience to tell that they were successfully treated in Pakistan by Pakistani
surgeons at fraction of costs charged by a UK, USA or Canada based surgeons.
They also experienced that Pakistani surgeons readily carried out such surgeries
that surgeons from UK were reluctant to perform. Seemingly, this perception of
Pakistani immigrants appears to be correct but it is not the case as we are
comparing apples with oranges. This impression gathered by Pakistani
immigrants is in fact reflection of absence of that culture of medico legal
litigation that prevails in USA, UK and Canada. A surgeon practicing in Pakistan
works under no fear of a law suit for negligence even if he makes a mistake. He is
out to conduct a surgery as he thinks proper and there is no check and hence no
fear. Where any mishaps occur the surgeon walks out without any feeling of guilt
shame or fears and the victims have no remedy. In UK even the most experienced
surgeons refuse to treat a complicated surgery despite having better resources
only to escape the blame of negligence and face a law suit. It is not the skill or
articulation of surgeon, it is his bravery rather recklessness that works under this
scenario of freedom at the cost of victims. I know many cases of spoiled surgery
that were repaired by UK surgeons. (Amer, personal communication, October
11, 2007).

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This intelligent comparison of contrasting difference of professional and social


environment prevalent in western societies and in our society indicates the
unquestionable opportunity available to physicians and surgeons in our society to
multiply their fortune towards their cultural ideal of acquiring their goals by whatever
way they have at their hands. This societal contrast also strengthens the argument that
glamour for white-collar crime prevails as a norm where no fear of accountability or in
other words de-stigmatization is prevalent as a norm. White-collar crime flourishes if the
society is de-stigmatized and with this process glamour for criminality also develops.
Sutherland explained this phenomenon of white-collar criminality in following words:

The crimes of the upper class either result in no official action at all, or result in
suits for damages in civil court, or are handled by inspectors and by
administrative boards or commissions with penal sanctions in the form of
warnings, orders to cease and desist, occasionally the loss of license and only in
extreme cases by fines or prison sentences. Thus the white-collar crimes are
segregated administratively from other criminals and, largely as a consequence of
this, are not regarded as real criminals by themselves, the general public or the
criminologist. (Sutherland, 1940).
In a recent research by Harvard school of public health published in current edition of
New England Journal of Medicines (May, 2006) it is established that every malpractice
suit filed in United States has a meritorious basis and rejects claims that civil justice
system is inundated with frivolous lawsuits. This research supported the rejection by US
senate of a recent piece of legislation proposing compensation limitation of USD.250,
000 for non economic damages for medical negligence. ("Malpractice Lawsuits," 2006, p.
A18).

Unscreened Blood and Hepatitis C

A very complex and interesting practice of shedding away with responsibility shows how
indifferent towards their obligations and de-stigmatized sub culture of medical profession
is in our society. Another victim of professional negligence, reports that he was admitted
to Khan Hospital with complaint of chest pain. He was advised Coronary angiography

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for correct diagnosis. Later, the patient was advised Coronary Artery Bypass Grafting
(CABG) by a renowned cardiac surgeon of the hospital. The patient gave his consent to
the recommendation and was admitted to the hospital for CABG. Two days before
surgery all necessary tests of his blood were conducted at the state of the art laboratory of
the hospital and the patient was cleared for surgery accordingly. The hospital
management informed the relatives of the patient hours before surgery to arrange for six
donors for fresh blood and patients relatives managed to arrange six volunteers for blood
donation but they were not asked to donate blood and were kept in waiting. Six days
after the surgery, the patient was discharge from the hospital with follow up medication
and dietary advice, walk and exercise etc. Two months after discharge from the hospital
the patient started experiencing unprecedented Nausea and vomiting. The patient
approached his surgeon who informed him that this condition is nothing to do with
CABG and advised him to consult his physician. The physician advised him liver
function test. The patient reported the same hospital with LFT reports and was further
advised test for Hepatitis profile, and ultra sound abdomen. When the patient revisited
his physician with these reports, he confirmed that the patient had an attack of Hepatitis
C and E viruses. This was shocking and startling news for the victim. The patient
then recalled that Hepatitis is caused by contact with blood and blood products, blood
transfusion and use of shared, poorly sterilized syringes and instruments. He realized that
the only occasion in his life when he was given a blood transfusion was at the time of his
CABAG. Thus the patient who went for the purpose of surgery to get rid of heart
problem was further a prey to another fatal disease caused due to negligence and lack of
care by his doctors. He was advised further course of treatment by way of interferon
therapy injection for 24 weeks. He was advised to arrange for another Rupees 400,000/00
and was informed of side effects of this treatment, those included continuous fever, bone
ache, flu, cough, general weakness depression and hair loss.

Horrified with new dilemma, the victim requested the hospital authorities and virtually
begged for fair treatment requesting to arrange for his treatment at their cost. But hospital
authorities refused to pay any attention to his requests and completely disowned him. He
launched a written complaint to the management for an impartial inquiry to ascertain

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cause of his agonies, reimbursement of his payments and treatment of his newly acquired
disease of hepatitis C. But his follow up remained unsuccessful as no one was prepared
to accept the liability.

No one could satisfy him as to why the doctors preferred to

transfuse blood from their blood bank instead of using the blood arranged through
volunteers of his family. The hospital management informed the victim that they have
conducted thorough inquiry into the matter and concluded that fault does not lie with any
of the doctors or hospital management. Interesting part of this reply was that hospital
management declined to disclose names of doctors conducting this inquiry and what was
terms of reference of this inquiry and why the victim was not associated with this inquiry
being the ultimate sufferer. Dis-satisfied with handling of his complaint by the hospital
management he made written complaints to Federal and Provincial Health Ministers.
Provincial Health department nominated one member committee consisting of a specialist
doctor to investigate the complaint. Federal Health ministry instead of taking any action
advised the victim to approach Pakistan Medical and Dental Council to redress his
grievances. The PMDC did not do much and conveyed their conclusion that probability
of acquiring hepatitis with best screened blood is 3%. The one member committee
constituted by provincial government gave clear findings to the effect the probability of
patients acquiring the Hepatitis C through blood transfusion given at Khan Hospital
during his surgery is very high. Similar findings were extended by the hospital chief
pathologist confirming that sensitivity of best screened blood to detect contamination of
hepatitis C is 97%. The victim approached PMDC and stressed upon his complaint. In
response to his complaint he was informed that a meeting of the disciplinary committee
of PMDC was scheduled on a fixed date and he was required to appear before this
committee to present his case. He effectively represented his case in presence of the
defaulting hospital representatives. However, on conclusion of this hearing, he was
informed by the chairman of this committee that they have no legal authority to take any
disciplinary action against a hospital implying that their organization is only to regulate
individual doctors conduct. If he had any complaint against a particular doctor, only then
the committee was in a position to take an action. His dilemma was that he was not
having evidence to level allegations against a doctor and hospital refused to provide
records of his treatment. He was advised to approach a court of law to redress his

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complaints. All his efforts and hopes were frustrated at this point. He called this situation
connivance of peers for the benefits of peers. Sense of mutual solidarity and selfprotection make criminal opportunities more attractive by reducing the chances of
receiving severe punishment (Coleman, 1994).

This case is unique in the sense that the victim was well educated and aware of his
rights. He used all available regulatory mechanism of the country to redress his
grievances but nothing could cure his sufferings. This is sheer act of gross negligence
severely culpable by all moral and ethical standards. The most pronouncing part of this
case of moral apathy is that hospital management is not forthcoming to provide free
treatment to the victim. Perhaps they are not prepared to leave even a symbolic or implied
orientation to show their lack of care and in their view it will amount to accepting the
blame of negligence if they provide treatment to the victim. This deep rooted moral
apathy is what Durkheim called acute anomie (Durkheim, 1960). In this case violation of
professional ethics involving negligence and informed consent are in issue.
Administering medical treatment without consent would be considered a failure to
respect a patients autonomy, thereby violating his right to self-determination (Tom &
James, 2001). The patient must understand the risks, benefits, nature, probable results,
alternative options and difficulties of recommended treatment. The hospital management
did not inform the patient about the probable risk margin of 3 percent of contamination of
blood transfused to the patient that was particularly essential when relatives of the victim
had already arranged volunteers for supplying safe and fresh blood. The hospital
management acted without an informed consent depriving the victim of his choice to
arrange safe blood or even refuse to undergo surgery at all under given circumstances.

The ultimate objective of undergoing surgery or medical treatment is that the doctor owes
an implied warranty to his patient that his quality of life would improve after he
undergoes recommended treatment. It is ethical liability of the doctor and hospital to owe
this obligation when something goes wrong. They attract their customers (patients)
projecting themselves as possessing special skills, knowledge and technology to treat
their ailment. But this trust was breached when the victim claimed his right in this case.

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The regulatory mechanism of PMDC could not help the victim. On question of providing
record of treatment a senior physician candidly shares:

It is not possible to keep a befitting record of systematic treatments given to the


patient. There is lot of load on the doctor and he records his advice and it is duty
of paramedical staff to follow the advice. There are no dedicated staff and
resources available to keep the records. It is very occasional where treatment
records are sought by any body after the patient has been discharged. Obviously it
is in interest of the doctors to keep secrecy. If anything goes wrong the records
may be tailored to meet the eventuality if a patient or his relatives become nasty.
When the patient is not insisting, why should a doctor be forthcoming to leave
evidence of what treatment he gave to his patient? In case of government
hospitals, keeping records of treatment is impossible because many of the tests are
arranged from private facilities by the patient himself. It is only in armed forces
hospitals that keep complete records of treatment because there is accountability
and patients duty is directly related with his state of health. (Amjad, personal
communication September 12, 2007).
It is individual attitude and competence of the doctors that chalks out their behaviour. If
they are competent they need not keep any secrecy. This manipulation by the doctors
against their ignorant and unaware patients is a manifestation of amoral attitude of
professionals who attempt to take advantage of their privileged position disregarding
their moral and ethical obligations towards their patients. They hide their incompetence
behind the disadvantageous position of their patient. They tend to violate their
professional ethics without any fear and this practice has become an established norm.
This position strengthens the argument that absence of law or its non enforcement
provides breeding grounds for white-collar crime to take roots in the given social
environment.
On question of informed consent, a senior surgeon working in a government owned
teaching hospital advocates his stance as to how he does not consider it necessary to
inform the patients about details of surgery to be performed:

I have been carrying out invasive surgeries of complicated natures. Based on my

experience with patients, I can say that it is not necessary to explain details of
surgical procedures to the patient or his relatives. They become apprehensive and
in a number of cases it has happened they disappear from the ward on the day

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when their surgery is scheduled. They report to the surgeons when their case has
already been spoiled by the quacks or they end up with these quacks after
knowing about details of surgical procedures. Ordinarily they have stronger belief
in quack of their village or town than in explanation of surgeon. It is this situation
that places the surgeon into moral quandary to save the life of the patient and save
him from becoming a victim of quacks who will charge him lot of money and still
will spoil his ailment further. It is in patients interest that he is informed of only
what is barely essential. (Naseer, personal communication, September 18, 2007).
This position hints an enigma of our society that patient does not understand what is in
his interest. He wants to have an easy way out of his ailment and seemingly surgeons
stance seems operative under these circumstances. But this practice of disclosing bare
essentials opens the doors of corrupt practices for some physicians who overstate the
ailment or over prescribe the drugs for their patients to fleece money. This practice is
more prevalent in rural areas where bulk of population of society resides and physicians
are also the partners or owners of the pharmacies attached to the hospitals. The ethics of
informed consent can ideally work in social scenarios where patients also have capacity
for an intelligent and rationale choice.

The ignorance and unawareness speak from the experience of a physician whose gestures
of saving life were misunderstood by an attendant of a patient. A Cardiologist explained
his experience with ignorant relatives of a patient who had suffered heart attack and when
he was trying to resuscitate him. He received an emergency call that a patient was
complaining severe chest pain and his blood pressure was dropping. On arrival, he noted
that the patient had a heart attack and had serious trouble in breathing. In an attempt to
resuscitate the patient, he attempted to press his chest to give movement to his lungs. The
younger brother of the patient stabbed the physician in his back blaming that he was
trying to kill his already troubled brother. When the doctor successfully resuscitated the
patient the suspecting younger brother came to know of factual position, and he had no
face before the physician. In such an ignorant social milieu, the physicians continue to
have opportunities for glamorous pursuits to fleece money with full impunity among the
de-stigmatized and unaware society around him that lacks virtues of assessing what is
and what is not in their interest.

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In such social circumstances professional white-collar crime flourishes where there is no


medical malpractice litigation culture in a society and there is no corresponding
regulatory mechanism. In religiously conservative society of Pakistan, where something
goes wrong it is attributed to Gods will without objective application of mind to explore
independent reasoning. There are only two judgments on medical malpractice litigation
in Pakistan from 1947 to 2003. This situation is perhaps due to ignorance, illiteracy,
poverty, unawareness and non activism of civil society against professional crimes. The
unwarranted high and unquestionable social status accorded to the doctors in our society
and absence of vocal civil society organizations are other reasons. Here is a case where a
sub inspector of police himself landed in jail instead of arresting a doctor accused of
negligence. A district judge refused bail to a doctor nominated in a murder case. The
doctor was accused of gross medical negligence resulting into death of 2 years old boy.
The judge assigned the duty to an Assistant Sub Inspector of Police to arrest the doctor
and investigate the case. The police officer violated the court order and he himself landed
in jail instead of arresting the doctor (Bail Plea, 2006).

Permanent Loss of Hearing

Another victim of doctors negligence at Khan Hospital describes his ordeals after having
suffered a moderate head injury caused due to a road accident. On initial assessment it
was found by the attending doctors that he was stable and having deep laceration on his
forehead. At the time of admission to the hospital he was having perfect hearing, smelling
and vision ability. He was initially treated in intensive care unit of the hospital and next
day was shifted to a private ward. During his treatment lumber puncture was done for
collection of cerebro spinal fluid for examination. Three doctors carrying out this
procedure decided to insert VP shunt into lumber. The patient or any of his relatives
were not informed of probable risks associated with such procedures. Few days after this
invasive procedure, it was revealed that the patient had got meningitis from the
contaminated hospital environment due to lack of precaution and care. When the doctors
handling the case came to know of this development, they decided to remove the VP
shunt and replace it with ventricular drainage.

This was however done after an

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unreasonable delay of a week placing the patient on high risk. During this period he was
placed under heavy doses of antibiotics having known side effects of adversely affecting
the hearing nerve. Seeing no improvement in his condition the doctors team decided to
go for another surgical procedure to remove VP shunt and replaced it with omaya
reservoir. The victim experienced severe pain in his head with acute swelling and
complained impairment of hearing, vision deterioration and smelling ability. The doctors
team did not inform the subject about meningitis and kept it concealed after keeping him
on heavy doses of antibiotics, and later discharged him from hospital declaring him fully
fit. They advised him that disabilities of hearing, vision and smelling are temporary and
informed him that these are routine side effects of invasive surgical procedures. He was
having swelling on his head at the time of discharge and the doctors advised him nothing
to worry about. They made no mention of meningitis at this moment. The victim was
advised follow up visits if required. The condition of the subject continued to deteriorate,
particularly his loss of hearing continued. His elder brother took him to the same doctor
and insisted for a thorough check up. The doctor took CSF of the subject and informed
his attendant to visit later on receipt of analysis report of CSF. As the condition of the
patient was deteriorating, his brother insisted for his admission and doctors had to agree
to this request. The patient was again subjected to invasive procedure of inserting the VP
shunt without any brief from the doctors. With this treatment the condition of the patient
did not improve and he continued to suffer from fever. He was placed under heavy doses
of antibiotics. The doctors realized their mistake and immediately decided to remove VP
shunt under the circumstances. When the relatives of the patient protested over his loss of
hearing, sight and smelling ability, the doctors pretended that he was still under treatment
and after the effect of medication is over, he will be normal. However, the patient could
not recover from these situation months after his discharge from hospital. His brother
suspected some lack of care and breach of duty. He approached the two doctors for
providing him copies of all medication records, nursing and surgical notes for a second
opinion. The doctors continued delaying provisioning of records on one reason or the
other to hide their omissions and commissions. The doctors advised him to wait for about
10 months when his brother will normalize. But the patient made no progress during this
period.

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Tired of false promises of the doctors; brother and father of the patient aggressively
pursued management of the hospital to provide medical records for a follow up treatment
from some other specialist. Finally they were provided with a summary of medical
treatment. This summary for the first time disclosed that the patient had developed a
profound sensory-neural hearing loss confirmed on audiometric and the patient had
permanently become deaf. None of the doctors disclosed this to the patient or his
attendants during his treatment merely to prevent the patient to know of their malpractice
and malfeasance and a possible reaction from the surrogates of the victims.

This case is a worst example of criminal negligence on the person of the victim by the
professionals. This perhaps in no way qualifies to be a case of simple negligence and may
perhaps be placed under the category of criminal negligence. The doctors had treated the
patient the way they wanted with little concern about his consent and personal autonomy
and feasance. They were never concerned with briefing the patient or his relatives what
they were going to do and what were possible risks associated with their proposed
treatment. They were not diligent to what is warranted by their professional ethics. There
is a plethora of legal cases in USA and European legal literature where doctors have been
penalized for failing to inform the patient about what is going to be done with his body.
The importance of informed consent was first highlighted in an American Case. Justice
banjamin Cardozo explained this concept making following statement:

Every human being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an operation
without his patients consent commits an assault, for which he is liable
(Schloendorff Vs Society of New York Hospital, 1914).
As moral values in conservative society of Pakistan emanate from the religious teachings,
the code of ethics promulgated by PMDC, particularly integrates Islamic perspective of
ethics for physicians. It lays down that:

In Islam, human beings are the crown and are Allahs vicegerents on earth. They
are endowed with reason, choice and responsibilities, including stewardship of

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other creatures, the environment and their own health..Islamic


bioethics emphasizes the importance of preventing illness, but when prevention
fails, it provides guidance not only to practicing physicians but also to the patient.
The physician understands the duty to strive to heal, acknowledging Allah as the
ultimate healer. Islamic bioethics teaches that the patient must be treated with
respect and compassion and that physical, mental and spiritual dimensions of the
illness experience be taken into account (emphasis added) (para 7.0).
There is separate Islamic code of medical ethics (1981) formulated by Islamic
Organization of Medical Sciences. There are specific laws of medical practice in various
countries like USA, Canada, Europe and Australia that make the physicians duty bound
to explain the planned treatment to their patients with reference to risks involved, and
options available. In case of Pakistan, the only available remedy is under civil law of tort
and during 60 years history of country this remedy has seldom been exercised by any
victim against a doctor. Although there are few cases where courts have awarded decrees
for damages in other tort cases like road accident due to negligent driving, electrocution
due to negligence of electric supply corporation etc. The criminal law of the state does
provide punitive measures for negligence and breach of trust but it is considered very
strange and unusual to prosecute a physician for his misdeeds. In our social scenario,
there is no law that particularly regulates deeds of these professionals. They have
complete impunity with open field to fleece money from their victims and still harm
them. Sutherland explained and elaborated this situation as under:

White-collar crime flourishes at points where powerful business and professional

men come in contact with persons who are weak. It is similar to stealing
candy from a baby. Many of the crimes of lower class, on the other hand, are
committed against persons of wealth and power in the form of burglary and
robbery. Because of this difference in the comparative power of the victims, the
white collar criminals enjoy relative immunity (Sutherland, 1940).
On question of ethics, a trainee surgeon working as registrar in a government hospital
explains his learning experience in following words:

Our professor while explaining the surgery procedure lays a special emphasis

that whatever activity takes places in the operation theatre must not be disclosed
to any one out side. Matters of operation theatre must remain within four walls of

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the operation theatre. Everybody including paramedics follows this unwritten


principle and if something goes wrong, it is never disclosed even to other
professional colleagues. Surgery notes are often written to record that everything
was performed well within the procedural protocols even if it was not so
performed. Our seniors followed the same practice after they qualify their final
exams to become consultants. I also feel this to be a convenient way of avoiding
any blames of professional errors (Naseem, personal communication, September
17, 2007).
This legacy of professional expediency brings us to a confluence of Colemans theory of
motivation and opportunity and Durkheims anomie theory. The professional physicians
place disproportionate emphasis on their cultural ideals of accumulating wealth even by
violating all norms of social normative system and ethics of their profession whereby
they jump over the boundaries of their professional ethics at the cost of bringing danger
to the lives of their patients and still manage to repel any blames. Coleman (1994)
elaborated this phenomenon in his seminal work while presenting his theory of
motivation and opportunity:

Occupational sub-cultures play an important role in facilitating many types of

white-collar crime by promoting the spread of the knowledge and techniques


necessary to transform a potential course of criminal action into a psychologically
available opportunity. Because these subcultures typically have diverse
membership, they provide a source of communication independent of the industry
or organization in which an individual works. Accountants, physicians and
lawyers for example, learn about opportunities for whit-collar crime as they learn
their profession and are socialized into its subcultureAlthough
subcultures in law, medicine and the other professions do not directly condone
criminal behavior, the sense of mutual solidarity and self-protection make
criminal opportunities more attractive by reducing the chances of receiving severe
punishment (Coleman, 1994).
This display of professional solidarity is often seen and heard when doctors proceed on
organized strikes often under the umbrella of Pakistan Medical Association to protect
their colleagues accused of negligence or misconduct. Moved by this highly unethical
practice of strikes by doctors to give illegal protection to their colleague, a UK based
surgeon of Pakistani origin stated:

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Doctors have started protesting against the registration of criminal cases against

six doctors for leaving forceps in a ladys abdomen leading to her unfortunate
death. These protesting doctors should thank their stars that they are working in a
country where cases of professional medical negligence are dealt with this way.
Working in one of the western countries would have lead them to cancellation of
registration and taking away of the right to practice depending upon the role
played in the negligence. The public and the medical community have to realize
that cases of professionals have to be dealt with in a professional way and there is
price to pay. The head of department is as responsible for any negligence as
captain of the team. ( Saeed, 2006).
In another case, the Supreme Court of Pakistan acted against the doctors proceeding on
three days strike to protest against arrest of their colleague on charges of negligence. This
was a rare case where the Supreme Court took suo motu notice of media reports that three
children died because of the alleged negligence. The Supreme Court commented: how
could government doctors go on strike? and ordered the provincial Government to
transfer all the doctors of the district hospital replacing them from a fresh team other than
from their home district (Protesting doctors, 2006).
Unwarranted Procedure
Mr Khan, another sufferer of gross professional negligence explained how he lost his
wife at the age of just 29 years. Both of them decided that their family was complete and
they did not want more children. For this purpose they approached their family
gynecologist working at a renowned hospital. She advised the lady to go for an
ultrasound before undertaking any procedures. The ultrasound report clearly indicated
that the lady had no signs of pregnancy as there was no definite gestational sac or any
free fluid seen. The walls of uterus known as myometrium were found to be swollen
clearly indicating that she will have her normal menstrual periods within a weeks time.
Despite this clear report, the gynecologist fabricated a false story to fleece money by
advising the lady that she had a missed abortion. A type of abortion when embryo dies
and gestation sac is retained in uterus for weeks and months. The lady was told by the
gynecologist that she was carrying a fetus inside and she may later develop bleeding
disorder. The unwitting and unsuspecting lady blindly believed the doctor and got
horrified with her diagnosis. The lady was advised by the gynecologist for a minor
surgery and advised her to get admitted in the hospital. After consulting her husband, the

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unfortunate lady decided to get rid of her disease and next day was fixed for surgery. The
unsuspecting couple reached the hospital early morning the next day and all pre-surgery
tests were conducted. The proposed surgery was scheduled in the after noon. The
husband was informed of successful pre-surgery evaluation and was asserted by the
gynecologist that she was quite expert in conducting such type of procedures. The
husband was never informed that this surgery was being planned under a general
anesthesia.

The lady was taken to operation theatre for proposed surgery in the

afternoon. In the evening, the husband received a surprising call from the hospital that he
must reach the hospital immediately as condition of her wife was critical. He was
shocked to see her wife lying speechless and unconscious. He was informed by the
gynecologist that her wife has suffered a cardiac arrest during the surgery. He was
consoled by the gynecologist that the lady was stable and breathing without any
mechanical support. The suspecting husband did not trust the gynecologist this time and
managed to seek private consultation from a renowned neuro surgeon who examined the
lady at the hospital and confirmed that the brain activity of the lady have become dead.
The gynecologist still rejected this assessment and insisted that the lady is breathing on
ventilator. The husband brought his family doctor who also confirmed that the lady is
already clinically dead and there appeared to be no justification for the lady to be kept on
ventilator except to hoodwink and extract money by deception. The gynecologist
disappeared from the scene but nursing staff still insisted to keep the lady on ventilator as
she might recover and come out of shock. The lady was pronounced dead after two days
and the hospital management demanded Rs.45000/00 from the husband before handing
over dead body. The cause of death on death certificate was recorded as cerebral anoxia
and edema cardiac arrest (lack of oxygen supply to brain and cardiac arrest due to
abnormal accumulation of fluid).

The hospital management refused to provide medical documents, reports, nursing notes
etc despite repeated requests by the husband. When the husband aggressively followed
the hospital management, they provided a case summary. The gist of the summary was
that the deceased lady developed sinus badycardia and hypo tension and went into arrest
but was immediately revived by cardiopulmonary resuscitation and she started breathing

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without any mechanical support.

The summary further depicted that later oxygen

saturation began to drop and she developed respiratory distress and was put on respirator.
The next day her ECG revealed that there was no brain activity and ultimately ventilator
was removed. The husband contested this self serving summary and declared it as
misleading, false and concocted.

This case is something more than what medical professional ethics encompass. It is a
combination of criminal negligence, breach of trust, malfeasance, misfeasance and
trespass on human body without any justification and informed consent. The lady doctor
fraudulently and cunningly lured her unsuspecting patients to go for an elective procedure
that was not diagnosed during ultrasonic evaluations. The victim was not informed about
the details of the procedure; risks involved and alternate possible options. General
anesthesia was administered without any information to the victim and her husband. The
explanatory story given to the husband is that all difficulty happened when procedure was
about to be completed to show that everything was done professionally as far as
procedure was concerned. The victim asserts that: death of his wife took place due to
over dosing of anesthesia or even if his wife suffered a cardiac arrest the attendant
doctors failed to assess well in time and she died because of their incompetent handling.
It is a case of contumacious recklessness of the professionals on one hand and projects
their ruthlessness, devoid of all norms of ethics, morality and professionalism.

Instead of accepting their mistake they even did not abstain from hoodwinking the
husband to keep him merely on hopes knowing well that their incompetent handling of
the case had taken life of the lady. Another aspect of this case example is that hospital
management did not provide records of treatment. This pattern of refusing to provide
treatment record also indicates their deliberate attempt to prevent the victim from
knowing the actual facts. If they have performed their professional obligations well, they
must be forthcoming to display their innocence. But their refusal is reflecting their
malafide objective to retain an option to temper this record in their favor if matter leads to
further probe. This case of negligence is perhaps the worst of its kind. Such type of
criminal behavior goes unpunished in our society because of the crises of law

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enforcement and ab-initio absence of law to regulate such illegal conduct. A lawyer
commented on this scenario of medical negligence:

When doctors make mistakes they bring mental torture and physical pain to the
patients and their families. But when these mistakes are brushed aside, the distress
deepens. Medical negligence is not something new, but it is not accountable in
Pakistan. People accept pain and loss as something ordained, something that was
bound to happen. Someone has to break silence. (Hasan, 2006).

This case is a case of moral bankruptcy hinting at new dimension of glamour for whitecollar criminality among the professionals, that just to make few thousand rupees they
preferred to do unnecessary procedure without any signs and symptoms. The
unsuspecting couple fell prey to their luring on a hope of healthy and happy life. But
criminal conduct of professionals to deceive their victim pushed them into most
unfortunate and unfair disadvantage where innocent children lost their mother and the
husband a caring wife. There is no effective mechanism in place that could bring a ray of
hope and remedy to check this flagrant violation of rights by the elite professionals. The
lady gynecologist would have landed in jail if it would have happened in USA or Europe.
A journalist well aware of the subculture of medical profession commented on this
situation in following words:

One do not have to be surprised to see that such type of malpractice and
professional mismanagement are an accepted way of life for these professionals
and they will not have even an iota of feelings of shame or guilt if someone dies
because of their negligence or malpractice. They live in such a protective
normative structure of their subculture that it will be quite unusual for a doctor if
he is arrested for such sort of gross negligence of playing with human life. If he is
still arrested due to some influences, he will claim his innocence exploiting
grounds of discriminatory treatment because everyone else is also doing the same
sort of malpractices and why he is to be penalized? All his colleagues will come
running to rescue him from these troubles with utter disregard to quantum of his
or her felonious conduct.(Ghazi, 2007).

How these professionals tend to ignore high values of their professional ethics when they
enter their practical life. This case is a reflection of motivation of white-collar criminal
that is derived from financial self-interest. Coleman (1994) argues that the desire to make

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more money and the desire to protect what one already has are two closely related aspects
of the phenomenon termed as financial self-interest. For the doctors, this phenomenon of
self-interest provides motivation to these professionals to ignore their obligations towards
the victims and moral and ethical codes. This is one aspect that brings in motivation for
criminal affinity. There appears to be something wrong at the stage of professional
education and training that basic rules of ethics are not correctly emphasized and
inculcated and with passage of time these doctors forget their ideals and move to pursue
other beneficial goals.

Corneal Opacity

The case of an advocate is another horror story who explains his sufferings as a result of
negligent and casual handling of his case of corneal opacity by doctors at a renowned
hospital. The victim was having complaint of corneal opacity in his right eye. Impressed
by the reputation of a Corneal Specialist and ophthalmologist, he traveled from far flung
area of Bahawalpur. He was advised corneal grafting to get rid of his complaint. He was
specifically advised by the said specialist ophthalmologist that if he wanted cornea to be
imported from Sri Lanka, he will have to pay Rs.18, 000/00 but it will have inherent risks
of infection and non immunization. The doctor recommended that if the cornea is
imported from USA; it will be quite perfect, duly tested and immunized. The doctor
further added that this cornea will cost Rs. 60,000/00 and recommended it advocating
complete safety. The unsuspecting victim agreed for American cornea in view of
persuasion by the doctor and agreed to pay Rs.60, 000/00 in advance. After about a
month, the victim was called by the doctor confirming receipt of cornea from USA and
was advised to report for corneal grafting surgery in two days. The doctor assured him
that the cornea imported from USA has been examined by him and it was perfectly
alright. The procedure was completed the next day and the victim was transferred to
recovery room. Next day, the doctor insisted to discharge him with advice that
subsequent follow up is to be conducted by another doctor in another city without
explaining the reasons. The intelligent patient refused to agree to this advice and insisted
that he would like to be treated in the same hospital unless completely recovered. To his

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utter disappointment and surprise the doctor did not turn up in disregards to his ethical
and professional responsibilities. He was attended by another junior doctor. When the
bandage was removed, from right eye, he immediately felt something wrong with his
vision as it was grossly eroded. He conveyed this fact to the attending doctor and insisted
that specialist doctor conducting the surgery must be called. He was pacified with
comments that these are side effects of medicines and soon his vision will be alright. The
ophthalmologist conducting the surgery did not turn up during next two days and his
junior doctor recommended discharge from hospital and further follow up in OPD. After
about 2 days, the victim felt worsening vision with passage of time. Finally, he got hold
of the specialist conducting the surgery and sought his advice. He pacified him by saying
that he has been advised perfect medication and his surgery was perfectly alright and
temporary loss of vision was normal and routine outcome of such surgery.

The

unsuspecting patient as he was, came back home with a hope of improvement of his
vision. He kept visiting the specialist on alternative days. His agonies continued and he
felt swelling on his face, with redness and swelling around his right eye. In this process
15 days passed and after his agitation, the doctor disclosed him first time, that his loss of
vision has taken place due to fact that donor cornea grafted in his eye was infected and it
was sole cause of his post operative complaint. The doctor advised him to seek further
consultation from another doctor at Lahore and gave him a reference letter. In this letter
the specialist indicated disease as Pseudomonos and corynebacterium i.e corneal
infection.

At this stage the specialist doctor also informed the victim, that he will be leaving for
USA permanently. When the subject approached the recommended specialist, he found
that he was working in a charitable hospital where there was no facility of treating his
complaint and that he has never met the specialist who recommended him for treatment.
Disappointed with this response, he approached another eye hospital where the doctors
found that grafted cornea of right eye has become so thin due to severe infection that
there was imminent danger of its being ruptured. As an immediate measure the infected
cornea was given support with contact lenses. In this process, he consulted another eye
specialist of repute through one of his relative where he was advised that grafted cornea

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would no more be workable and it would have to be re-grafted after the infection is
reasonably controlled. Tired with multiple specialist advices, the victim still wanted to
have a second opinion from another eye specialist. After examination by second
specialist, view of earlier doctor was endorsed with a caution that if the infection was not
controlled it may spread to cranial cavity (Brain) leading to permanent loss of vision of
right eye. He continued under treatment of last specialist for over 2 months and infection
was under control. He was advised for re-grating of his cornea from Sri Lanka where it is
cheaper, safe and durable. Accompanied by a doctor he got his cornea re-grated and later
successfully came back home.

Himself being a lawyer and knowing his rights as patient, the victim approached hospital
initially treating him, to furnish him medication papers, surgery notes and reports of preoperation tests pertaining to his corneal treatment so that he could know as to what went
wrong. He received a standard answer that their protocol did not warrant his access to his
own medical records. After aggressive follow up, he was given an amazing and
astonishing handwritten summary whereby it was indicated that grafting was done
perfectly, stitches were intact and there was no signs of infection. Obviously this new
position was contrary to earlier position taken in their reference letter. This was termed as
an attempt in seeking condonation of their negligence. The lawyer did not stop here and
decided to sue the doctor and the hospital for compensation. Proceedings of the suit are
continuing but the eye specialist treating him has already gone to USA.

The ground realities of this and earlier stated cases provide enough idea of how ruthlessly
and fearlessly professional doctors handle their patients who come to them with a hope
and trust for fair treatment. They are immune to professional ethics and there is no law to
block their way. The sufferings of these patients increase after they pass through agonies
and also lose lot of money in the process.
Negligent Caesarean Procedure
Here is a lady, another victim of professional crime. This lady approached gynecologist
of a renowned hospital for pre-natal advice.

She was in family way and she had


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undergone a caesarean section birth while delivering her first baby about 5 years back.
This fact was disclosed to the gynecologist during consultation and follow up treatment.
The lady remained under periodical treatment and consultancy with the gynecologist and
towards the final days after examination, she was advised normal delivery and was
admitted into hospital for safe conduct of delivery. The gynecologist was away when the
lady was taken to labor room. The patient was given an epidural for pain relief on advice
of gynecologist with an understanding that it has minimum side effects. Later, a drip was
attached for intravenous injection of medicines. A junior doctor in labor room informed
the lady that normal vaginal delivery would take place in 3-4 hours and in other case
Caesarean section surgery will be done. Even after passage of 5 hours there were no
signs of delivery. Despite all precautions, the lady was in great pain. The consultant
gynecologist failed to reach to attend the lady, despite repeated calls by her staff. There
was no competent doctor to take charge of the deteriorating situation and render correct
advice. In the mean time the lady felt pain in her uterus and in 2 hours the ruptured uterus
was observed by one of the nursing staff. The lady was left to the mercy of nursing staff
who decided in panic to shift her to nearest operation theatre on second floor of the
hospital. It was found closed in early hours of the fateful day. They rushed her to another
operation theatre on first floor where there were no arrangements for immediate
operation. The lady was rushed to two other operation theatres with exactly the same
outcome. It wasted about 30 minutes and finally she landed in an operation theatre. The
operation was carried out by the same consultant gynecologist who reached in the
meantime, but the child already had suffered severe brain damage and was immediately
put on ventilator. He died after 4 days. The lady was discharged from hospital after 3
days and she had to be treated for her ruptured uterus during next 6 months.

This is not only a case of professional negligence and utter disregard of the consultant
doctor of her professional and moral responsibilities but also is a case of sheer
mismanagement of the hospital. The incompetent and careless handling proved fatal for
the new born. The husband of the lady took up the matter with hospital management but
his stance was not accepted by the hospital management. The hospital management also
refused to provide medication records, surgical notes and nursing sheet. This

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concealment of evidence by the perpetrators is a routine feature of professional


malpractice. This reflects weak moral strength of the professionals and a condoning
culture of lax law enforcement. It is power of the perpetrators that fosters crime and it is
powerlessness of the victims that de-stigmatizes such criminality. Unless this power gap
is reduced through participative measures, rule of law and accountability of professionals,
this glamorization and de-stigmatization of violative attitude of professionals will
continue.

Sponge in Abdomen

A pregnant lady was admitted in the hospital with birth related complaint. She was
proposed a caesarean section procedure to give birth to a baby. The victim lady
complained of continuous pain in abdomen but her cries were not heard by the doctor and
hospital staff. Consequently she was discharged from hospital on 11th day of the
procedure. When the trouble continued, the husband took the lady to another hospital
where her ultrasound revealed likelihood of presence of sponge inside the abdomen of the
victim. It was unbelievable for the family and they underwent another ultrasound from
another clinic for a second opinion. This second evaluation confirmed the earlier report.
The victim family approached the same gynecologist for treatment but they were treated
harshly. Disappointed with this erring behavior the family reported another government
hospital of repute. There, the doctors reached a conclusion that there was a foreign body.
They decided to carry out leprotomy that had to follow by another surgery. Protracted
presence of sponge caused sepsis and gangrene.

The sponge caused a severe infection

and condition of the lady deteriorated. The attending gynecologist still could not handle
the case properly and the lady died during treatment. Perhaps it was too late. The family
of the victim sued the doctor and the hospital for damages and compensation for Rs.
50,000,000 and after protracted delays the court awarded a compensation of Rs.11,
00,000. This case is one of the few cases that were brought up before a court for damages
and the court awarded Rs.1.119 million as compensation to be paid by the lady doctor
and the hospital. Although it took about five and a half years to conclude this case in 91
hearings but this case was considered to be a trend setter to create sense of responsibility

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among the professional physicians and surgeons. At the same time it fosters confidence
among the public at large. This case was reported by media and was one of the rare and
unique suits brought against a doctor. This was possible because a consumer friendly
NGO followed this case all along. The victim had to approach the High Court to seek a
direction for the trial court to complete proceedings and announce decision within six
months. This fact is a reflection as to how judicial system in our society is attending to
the aggrieved parties and perhaps is an answer to publics apathy towards judicial system.

These are few cases which can be presented as examples of white-collar crime and
malpractice of professionals in our society. Negligence, violation of rights, trespass on
body without informed consent and general disregard of professional obligation has been
found to be an acceptable norm among the professionals. It is difficult to estimate number
of malpractice and negligence cases surfacing everyday due to many factors such as
secrecy, complacency of the victims and their lack of awareness to assess as to what has
happened to them. There are no organized professional surveys and there are less honest
doctors to admit their mistakes, although there is no punitive fear even if they confess for
their malpractices. The professional ethics are thrown into backyard. Breakdown of social
value system is seen as prominent trend. Professional ethics based on human values of
right and wrong are not preferred but self interest is kept before all considerations. Two
dangerous emerging trends arising from situations examined are: Firstly that concept of
informed consent is alien to these professionals and they routinely trespass on the body of
their patient. Secondly, when any thing goes wrong, they refuse to provide records of
what they have done. This tendency is an indicator of their high handedness and
reflection of the fact that they are not accountable to any regulatory and law enforcement
mechanism.

Forceps in Abdomen

A lady underwent a caesarean section procedure and was discharged from hospital. She
continued complaints of abdominal pain but the doctors at the government hospital could
not assess the cause of her pain. Over six months passed when after repeated visits to

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hospital the complaints of the lady continued. An X-ray screening at another clinic
revealed presence of a set of forceps in her abdomen that was left at the time of her
caesarean procedure. She was immediately operated upon and the set of forceps was
removed from her body. However, protracted presence of forceps in her abdomen caused
severe infection and she died after five days of her surgery. This case figured in
international and national media and the doctors involved in this treatment were arrested
and criminal case was registered against them after media cry. The lady was wife of a
poor but determined labor and he, as a rare show of concern, struggled for accountability
of negligent doctors.

Other Cases

There are many cases of deadly negligence reported in media everyday. A doctor carried
out deadly surgery on a patient in his private clinic where there was no infrastructure and
facilities to undertake surgery. The doctor fled from the scene after this blunder. The
victim had an arm injured in an accident. The doctor advised surgery and demanded
Rs.6000/00 to do this job. The poor son of the victim arranged money and paid to the
doctor. After, three hours in operation theatre the doctor came out and vanished. After lot
of waiting, the apprehensive son entered the operation theatre and found his father lying
dead (Deadly surgery, 2007). In another case widely reported in media, a murder case
was registered against two doctors for committing negligence causing death of a patient
brought into hospital after probable cardiac arrest. The charges were also confirmed by a
fact finding inquiry team. The inquiry report revealed that the doctor did not attend the
patient in emergency and referred him to a dispenser who was also absent from duty.
After wasting lot of time the patient was shifted to coronary care unit. Here the air
conditioner was switched off bringing the patient into more distress. The remote control
of the air conditioner was with medical superintendent of the hospital. He was living in
his home town about 35 kilometers away instead of his official residence provided to him
in vicinity of the hospital. He unauthorizedly rented out his official residents to make few
thousand rupees at the cost of his obligations. Bringing more troubles to the patient, ECG
machine was found out of order (Murder case, 2007). These are the cases hinting at the

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tip of the iceberg of negligence and professional misconduct in field of medical


profession. The cases highlighted in this humble work are enough to depict social
environment of a society where professional doctors remain deviant to their social and
legal obligations. This practice is not attributable only to doctors but it is pervasive in all
walks of our social life. If a survey of corrupt practices is conducted in a scientific way,
surely there will be startling revelations and criminality of doctors may be overshadowed
by corruption of other actors of society. A doctor having taught medicines in USA for
many years said:

Doctors are neither angel not devils incarnate. They are men and women
like everybody else, doing the best they can to make a living, provide for their
families and plan for a future in an uncertain world. Most importantly, they reflect
the values of the society they live in. It is therefore, unreasonable to expect them
to live and work by a different set of ethics than everybody else around them. The
fact that system of healthcare delivery in Pakistan is in an abysmal state, does not
mean that doctors are entirely responsible for the present state of affairs.
(Hussain, 2005).
It is the social normative structure of the society that essentially exercises social controls
over behavior of social actors. A large number of Pakistani drivers are working in Gulf
States with perfect skills and responsibilities. They win appreciations for being sensible
and law abiding. A large number of Pakistani doctors are working in USA Europe. Most
of them are accepted as true professionals and their honesty, dedication, skills and
abilities are well acknowledged and respected. Some of them are much renowned and
are working both in Pakistan and USA or Europe. When in Pakistan, the same lot of
doctors laden with professional skills and honesty, work with different objective of
making quick money by all means at their disposal taking advantage of their power of
skill and position, exploiting the sick and disease riddled victims.

Where institutions of social control are non existent or are weak, the opportunities for
deviant behavior multiply and motivation for crime is fostered. In such social gamut
white-collar crime flourishes because those having position and power are inclined to
victimize those who have no or relatively lesser power and are at the disposal of those
having relatively more power. Power in this context means position to exploit

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disadvantageous position of victim, breaching the trust, deceive, conceal and misguide.
How this environment of de-stigmatization of society pertaining to this professional
misconduct has developed, is a matter that this humble work attempts to answer. It is the
structural gap between powerful and powerless that is major catalyst for this phenomenon
of glamorization for white-collar crimes verses de-stigmatization. Power in context of
professional malpractice does not necessarily mean political power and powerlessness
does not necessarily restrict only to lack of accessibility to political and state authorities
or self autonomy. Power in current perspective means knowledge, skill, opportunity,
liberty, access, and trust of patient, professional secrecy, absence of a professional audit
mechanism, peer protection and control of a professional physician over his victim.
Powerlessness implies ignorance of victim of his rights, illiteracy, non existence of a
vibrant and aware society, absence of regulatory mechanism, incapacity to reach an
intelligent and rationale choice, complacency, lack of faith in judicial mechanism,
cultural barriers, and attribution of experienced victimization to divine will, difficulties in
proving criminal treatment and disregard of calling professional misconduct as culpable.
Scholarly work on this glamorization and de-stigmatization of criminal conduct shows
that under such social environment white-collar crime flourishes. Hidden nature of whitecollar crimes permits the criminals to move with impunity (Sutherland, 1945 p.138).
Similar explanation has been given by many scholars. Victims lack of awareness where
to report such crimes promotes these crimes (Pontell, Rosoff, and Goode, 1990) and faith
of the victim that nothing can be done even if crime is reported is another causative factor
(Ennis, 1967). It has become a sociological truism that white-collar offenders commit
their crimes because they are unlikely to be punished (Coleman, 1990). It largely depends
upon how institutions of social control are equipped and willing to repel deviant
behaviors and how a society responds to such malpractices. In developed societies these
institutions are proactive against criminals and hence there is greater answerability
whereas in resources starved developing societies, white-collar criminals have relative
immunity because standards of individual autonomy and protection of rights of individual
are different.

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CRIME OF PROFESSIONAL PRIVILEGE: THE KIDNEY RACKET

With the advancement of technology and knowledge there comes a new shift in complex
varieties of criminal behavior where major dynamics remain the lust for money and greed
for ambitions. During the last about two decades Pakistani society has seen a new
dimension of glamorization for criminal behavior of doctors where negligence and
malpractice has been replaced with deliberate deviance from professional ethics. During
this time the society has seen a new type of criminals engaged in organ trade disguised in
kidney transplant. The country has earned a new type of stigma of being the largest
market for kidney sale. International and national media attracted attention of this type of
white-collar criminality among the professional doctors and exposed mafia style rackets
who lure the innocent poor of the poorest and deprived people to sell their kidneys for a
very small amount. Their kidneys are transplanted to thousands of wealthy and rich
people both to locals and foreign recipients at phenomenally high cost. Most of these
recipients come from Middle East and Europe. There is solid empirical evidence that
shows organized gangs of doctors forming syndicate of agents and middlemen who lure
innocent people from poverty riddled rural communities to sell their kidneys at very low
price as compared to what is being charged from the recipients. The middle man gets
three times more than what is paid to the victim and still the hospital arranging the
transplant gets the lions share.

Case Studies

The sale of kidneys is more in practice in poor rural communities of Punjab, only in three
villages of two districts every family has at least one person deprived of kidney. Being a
lucrative business, there was mushroom growth of kidney hospitals where doctors in garb
of transplant specialists mint money by exploiting poor victims brought by clever and
shrewd agent mafia. Ramzan a resident of Kot Momin, explains how he was motivated to
sell his kidney to get rid of a debt taken from a landlord that was escalating day by day.
He knew that some other people including his cousin sold their kidney for Rs.75000/00.
He met the middle man Kala, who took him to a hospital in far way location in city and

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he arranged his meeting with some other people pretending to be doctors. An amount of
Rs. 85000/00 was promised and after two days his kidney was removed. He was paid the
promised amount that he utilized for retiring the debt. He was not informed of postremoval effects of kidney by the pretending doctors. Later, with passage of time his
health deteriorated and he was unable to do hard labor. No one cared for his post removal
treatment and he was passing his time in greater agonies.

Akbar, another victim of kidney sale, explains how he was deprived of his kidney. He
was persuaded by an agent of mafia to sell his kidney for an amount of Rs.150, 000/00.
He was taken to another city from his village and was taken care well by the agent who
was frequent visitor of his neighbor. Next day he was taken to a hospital where his tests
were conducted.

The test report was sent to another city through another friend of the

agent. The next day they received a call from that person and he was taken to other city.
He was admitted in a hospital and his kidney was removed. He was paid an amount of
Rs.75000/00 and balance was promised to be paid after 15 days. He never received the
balance amount promised. He justifies his decision by arguing that he has four unmarried
sister and a mother to support. He has been trying to find any job but all his efforts went
in vain. He expected to generate some funds to open a small shop in his village but with
so small money and deteriorating health, he is unable to convert his dreams into reality.
Another victim of kidney sale narrates his story likewise. He was forced to retire loan that
his father took from a kiln owner. He sold his kidney for Rs.90, 000/00 but this also could
not help him to get rid of this loan as interest was more than the principal amount. Now
he plans to sell kidney of his wife and daughter to see his life moving. He counts a
number of his relatives in the same village and who have sold their kidneys. He sadly
adds that they also want their children going to school; they also have right to lead happy
life and clean drinking water. He regrets that they have no amenities of life.

Another victim Ali, explained that he needed money to help his brother to face a criminal
trial in which he was implicated in a dacoity case. He wanted his brother to be released
on bail by all means so that he could take revenge from his opponents. He knew a person
in another village who sold his kidney months ago. Through this man he found the

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middle man who took him to a notorious hospital where his tissue samples were taken
and after three days his kidney was removed.

A daily news paper published a report of a neighborhood in Faisalabad where there is at


least one person in each family who sold his kidney. The name of the locality is now
known as Gurda (kidney) colony. The report highlights that over 30 residents of this
locality have sold their kidneys and many more are willing to follow in their footsteps.
Money from kidney sale provides short term relief but all is spent on post sale treatment.
The report indicated that network of agents are operating in the area to trap needy people
for selling their kidneys (Banking on kidneys, 2004).

Here is a case where social prejudices are exploited by the clever agent mafia for easy
money. A victim Kaloo, stated that he had blackish complexion and was concerned about
it. An agent of the mafia came to know about this concern. He persuaded him that by
selling his kidney, he will have money to improve his complexion through modern
medicines and will also save some for his use. He agreed and was taken to a hospital to
another city. There his kidney was removed and he was paid Rs.100, 000/00. Later he
found that his complexion can hardly be improved beyond a limit.

In another case, a doctor operated a patient in a private hospital for removal of his
damaged gallbladder. He removed healthy kidney of the victim instead of removing his
gallbladder. The patient, a poor tailor master was not aware of his ordeals and his
problems with health could not be solved and he faced more troubles after his surgery
than cure. His elder brother took him to another clinic where he was told after an
ultrasound that his gallbladder was in place. The family did not believe this and yet went
for a third opinion. There they came to know that gallbladder was not removed and a
healthy kidney has been removed instead. It was highlighted on almost all TV channels
and print media and the doctor was arrested. The case was not accepted by the public as a
case of negligence and it was linked with having a nexus with kidney mafia. Because of
the media pressure, the government was constrained to convene an inquiry committee, a
rare event; that confirmed removal of kidney. Later the doctor moved a bail petition and

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pleaded innocence. The bail was granted as there could not be brought an evidence of
doctors links with kidney mafia (Doctor moves bail petition, 2007). However, the
kidney was recovered from doctors possession.

In a TV program of two episodes covering kidney trade, broadcasted by an international


net-work, victims and surgeons engaged in kidney trade were brought together to
highlight this human tragedy. Some of the surgeons advocating ethics in profession
opposed this practice being against the ethics and lowering the human dignity. It
transpired that doctors involved in this business were immune from any feeling of shame
and dishonor and they were doing it for quick money whereas victims were selling their
kidneys due to abject poverty coupled with ignorance of consequential sufferings (Rauf,
2007). A distinction was clear that the participating doctors involved in this dirty business
had no feeling of shame and dishonor for bringing human dignity to lowest level. Rather
they justified their actions as service to humanity as they do noble job of bringing two
families together through organ transplant completely hiding that they were earning
millions by exploiting their professional position against the donors and the recipients.
Both donors and recipients are not allowed to interact. Donor is not aware who was
recipient of his kidney and recipient is also not aware donor. The organ exchange hands
like an ordinary commodity. Most of the time kidney is transplanted to a foreigner as he
pays more money than the locals. Almost all of the victims participating in this program
were not aware who the recipients of their kidneys were? They all complained that they
were quickly discharged from the hospital and there was no post removal care or
treatment given by the doctors. A young man explained his experience while he was
traveling from Dubai to Lahore. He came to know that the passenger sitting with him was
traveling to Lahore for kidney transplant for which he is to pay about USD.14000/00 to a
hospital notoriously known for dubious practices of such nature. This amount is not even
a fraction of what is paid to the victim. Even if whole this amount is paid to the donor,
the violative acts of professional surgeons are not justifiable when measured against
ethics, legal and moral standards.

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In a very recent and rare case, police was constrained to arrest owners of three hospitals
and doctors involved in illegal transplant trade. This surprise came after two victims
approached a TV channel and complained that their kidneys were removed forcibly. The
matter was reported to police and it was revealed that the complainant was detained in a
house illegally by a front man along with nine others and a woman. These victims were
brought from a village for a secure employment. The complainant told the police that he
and his other friend have already been deprived of their kidneys without their consent.
The police raided the house and rescued the victims arresting the person guarding them.
On information received from the guards, police arrested owners of three notorious
hospitals and arrested three doctors. Their front men were arrested subsequently. These
are not just the hospitals involved in this activity but there are at least five more hospital
like locations where this heinous criminal activity is carried out in an organized manner. .
There is no legal violation attracting legal action against a doctor who deprives a man of
his kidney with his consent. A police officer explained:

There are many hospitals coming up on the scene in Punjab during the last five
years offering transplant services to local and foreign recipients. They prefer to
transplant kidney to a foreigner because he pays to the tune of USD.14000-20000,
something like three times more than a local recipient. They are basically
operating to mint money by depriving innocent and poor people of their kidneys.
There are organized gangs of agents and middle men who lure desperate young
people from rural areas visiting the city for jobs. They can be seen on railway
stations, bus stands and shrines where there are free food and other amenities
available from charity organizations and individuals. These agents working for
the doctors are very shrewd and quick to identify their victims. Police can hardly
take any action as all matters remain secret and only the surgeons can disclose
what they do with these innocent souls. All the illegal kidney removal is done at
night. These donor victims are registered in hospital records with fake names and
after removal of their kidneys they remain handicapped for a month or so. If a
victim had any complaint against a doctor or hospital, there is hardly any evidence
to prove his claims or even to prove that he was ever brought to this hospital for
kidney removal. (Rana, personal communication, August16, 2007).
The chairperson of the centre for Biomedical Ethics and Culture at Kidney Centre
explained this position:
For the donor of a kidney it is necessary that he is donating it based on an
informed consent and his act of donating his organ is voluntary. The present
practice of buying and selling of organs is unethical and doctors involved in this

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criminal activity are committing heinous crime against humanity. They are
bringing the human dignity to its lowest level just to make quick money. They do
not explain long term implications of kidney removal to the donor victims. At the
same time the victim willingness is not voluntary because he is lured into selling
his kidney and his willingness is not voluntary and is influenced by consideration
of money. Hence the practice is unethical for failing to qualify both standards of
informed consent and voluntary donation. (Farhat, personal communication,
August 28, 2007).
It was only in December 2007, that a law was promulgated to regulate organ transplant in
the country. Under this law sale purchase of organs was declared a penal offence. All
kidney transplant centers were to be registered. These centers were to be monitored and
each kidney transplant was to be recorded. The law provided for only cadaver transplant
and even organ donations between relatives required strict monitoring. Despite this
comprehensive law, which was promulgated after lot of pressure from society and
professionals, there are no checks and no policing by any agency. This lack of
enforcement situation is being exploited by vested interest mafias both in government
ranks and in private influential sector. An estimate reveals this practice of kidney trade to
be a market of over rupees one billion (Syed, 2007).

An editorial in a daily newspaper explains it all about how process of law making,
cultural norms and lack of awareness is a dynamic to promote this crime. It also hints at
how state mechanism fails to meet the pressures from vested interest elements comprising
of agent mafia and doctors:

One wishes that our law makers would come out with the real reason behind
their hesitation to debate and enact an organ transplant bill that has been lying
with Senate since 1992. While time and again, they have declared their resolve to
take action on the issue-just as the federal health secretary did the other day-it is
clear their vacillation that they are reluctant to do so. It is difficult to say whether
their hesitation stems from the pressure the lobby of the middlemen and doctors
involved in the countrys booming kidney trade or that applied by religious
groups that frown upon cadaver transplant as an act of desecration of the human
body. What should be realized is that in the absence of a law on organ transplant,
renal patients from the Middle East and Europe are coming in droves to Pakistan
where it is easy to find impoverished donors ready to sell one of their kidneys for
money. Long waiting lists, accompanied by a set of stringent rules governing
organ donation, in their home country are chiefly responsible for this growing

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trend. Parliament should not be so easily unnerved by the religious lobby, if


indeed this is the reason for its inaction. After all, even the orthodox Suadi
Arabia, permits organ transplant as do Iran and Turkey among other Musilm
countries. However, even if the religious groups were to accept organ transplant,
it will be a long while before the people are convinced of it as a legitimate way of
extending the life of terminally ill patients. While there are some cases where
relatives chiefly women donate their kidney to the patient, there are very
few who have willed this and other organs for others after death. This, and the
absence of any regulations on the organ trade, is what is boosting the sale of
kidneys. The issue calls for more than legislation. It requires public enlightenment
on the health aspects of organ donation by living donors and the removal of
misconceptions and fears surrounding cadaver donation (Wheres organ donation
law? 2005).
Lack of Law
The draft of organ transplant law was prepared in 1992 and was presented in the
parliament for the fifth time during the past decade, but every time it fails to get through
because of the covet intense pressure form lobby opposing the law. The necessity of a
law to regulate organ transplant came in lime light when a young man from Yazman, a
southern town wrote a letter to Chief Justice of Supreme Court that one of his kidney was
removed by members of kidney mafia involved in organ trade while he was operated in a
hospital. He requested the court to probe the matter and arrest the culprits. The Supreme
Court ordered the government to promulgate the law within a month. Commenting on
this situation the Chief Justice, remarked that influential persons are involved in this
illegal trade and they do not allow any law making (Influential persons, 2007). The Court
directed the ministry of health to come up with some scheme to end the organ trade. The
Court was informed that proposed law is with Prime Minister and was on agenda of the
cabinet meeting held last month. However, it was dropped at the last moment. Earlier the
Prime Minister rejected an advice by Health Ministry to recommend promulgation of this
law as an Ordinance by the President. This move is ostensibly an effort to allow the organ
trade to thrive. Earlier when the proposed law was originally prepared, it contained
controversial provision of legalizing organ trade. These included clauses which, under the
guise of ending organ trafficking, in reality could serve as legal cover for continuing
exploitation of the most disadvantaged to benefit the most privileged citizens of Pakistan
and other countries. Of special worry were sections that would legalize payment for
organs, a practice that is in direct conflict with recommendations of WHO International
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Tissue and Transplantation Guidelines that consider any form of monetary incentives for
procuring human organs as exploitative and, therefore, unethical (Moazam, 2007).
A number of respondents stated same reasons of compelling poverty and hence they
become easy targets of middlemen who lure them to greedy doctors who cross all limits
of morality and ethics in the name of service to humanity. There are few cases where
kidney was sold by young individuals for fun. A young man in Kot Momin village of
Sargodha, came as a surprise to villagers as he returned from city loaded with money and
spending it among friends and family liberally. When he ran short of cash, the villagers
came to know he sold his kidney through a middle man. In mid 2003, a Punjab
government inquiry estimated that nearly 3,500 people from Sargodha had sold their
kidneys through the 1990s to buyers from around the world (Khan, 2004).

Annually 2000 kidney transplants are carried out in the country. Of these 500 are done in
government hospitals from living related donors. The rest about 1500 are from unrelated
kidney sellers and these transplants are performed in private hospitals. About 900-1000
of these are for foreigners coming from more than 20 countries of Middle East, North
America, Europe and South Asia. This has brought notoriety for the country and it is a
matter of national shame. In national and international media the country has been
labeled as kidney bazaar and foreigners visiting for this purpose are said to be coming on
transplant tourism. Public admission of a British millionaire Thor Andersen, that he had
bought a kidney for himself from a poor Pakistani girl for Pounds Sterling 3000/00
followed a heated debate in British and other European Union states (Transplant tourism,
2006). Voice of this heinous crime was also echoed in national assembly and many a
television channels broadcasted stories of victims. There was a public cry for a
comprehensive transplant law to regulate organ transplant and to halt this practice from
becoming a trade. An article by a social analyst explains how poor are exploited:

Doctors who make a very good living out of transplant justify


their actions by claiming that they are saving lives, while at the same time
enabling poor donors to make some money. To hear them talk, it would seem they
are saints who only perform these operations out of the goodness of their heats.
The reality is very different: the very fact that hospitals charge $15,000 for the

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procedure, where donors only a tenth of this amount, indicates the level of
exploitation. Those involved in this racket are aware that if the government were
to pass a law permitting transplants from cadaver, as well as from brain-dead
people, while banning their sale and purchase, this lucrative business would end.
As this is the law in most countries, including many Muslim ones, they are trying
to use every trick in the book to block legislation. While the behind -the-scenes
lobbying takes place, thousands of poor Pakistanis are being tempted to sell their
organs
to
benefit
rich
foreigners
and
unscrupulous
surgeons.
.Currently, only the rich can afford the operation because kidneys
are unavailable. The poor simply die. Surely it is high time that we act to save our
most vulnerable citizens from handful of vultures. If foreigners
were to visit
our shores, we should welcome them, but not to raid the body parts of the poor of
Pakistan.( Hussain, 2007).
Television interviews broadcasted by electronic media indicated that in some cases the
victims could get nothing except promises for money and where they got some money,
they were deprived of this money on gun point before reaching their homes. These are
symptoms of sheer exploitation of the powerless by the powerful. White-collar criminals
in the guise of doctors are the end beneficiaries of this inhuman practice who have
transformed their resolve of service to humanity into lucrative business worth millions of
dollars. A broadcast from BBC criticized crises of law making in Pakistan as difficult as
if requesting influential US Secretary of State Condaliza Rice to request Pakistani
authorities to expedite:
Nazi doctors used to experiment on living people. It appears that their souls have
entered into bodies of a group of Pakistani doctors and their patrons who have
made Pakistan as international kidney market by committing dacoties on kidneys
of thousands of ignorant, poor and illiterate people and have made millions of
dollars. Nazi doctors had draw support from Hitler whereas Pakistani kidney
thieves had their field days during the tenures of government of Banazir to
Musharaf. Otherwise how is it possible that law prohibiting sale of human organs
has been ready since 1992 and four parliaments could not pass it and no it is
being left to fifth parliament despite cries from renowned transplant surgeon Dr.
Adeeb Rizvi and order of Chief Justice of Pakistan. Now there is only one way
left for promulgation of this law that someone having concern for humanity
requests Condaliza Rice to call Islamabad and push the matter. (quoted in Ummat,
2007).

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Mis-use of Privilege

This tragic social scenario leads us to crime of professional privilege of surgeons against
their victims who are poor kidney sellers. It is not that they are performing these surgeries
for service to humanity. Their focus of attention remains quick money. This quick money
is even at the cost of exploitation of victims who is paid just a fraction of the amount
what lands into trove of the doctors. The pretext that kidney seller is doing so because of
abject poverty is not all that justifies this crime. More probes into this matter lead us to
reasons beyond poverty. It is manipulation by these white-collar professionals through
their instrumentalities of middlemen that they lure these poor people into selling their
kidneys. By virtue of their professional ethics, they are obliged to inform the donors of all
the risks, future complications, ensure that he has volunteered and his autonomy is not
usurped. All these principles of professional ethics and respect for dignity of individual
are violated by these professionals while they proceed to intrude on body of their victim.
Imbued with power of professional privilege, they disregard principle of proportionality
to assess the risks to victims and possible benefits to recipients. Obviously at least two
essentials of informed consent are disregarded by these professionals: The donor must be
capable of decision making after understanding the consequences of his willingness to
sell his kidney, he may be free from undue influence and coercion and he must be
advised of all risks, complications, and affordability of post-removal medicinal follow up
for example removal of kidney involves risk of a general anesthesia, there is risk of death
and of blood clot that can do serious damage (Starzl, 1985). Secondly, the donor must
volunteer to part with his kidney willingly and out of any influence and without usurping
upon his autonomy. Both these essentials are neutralized because the victims are lured
into trap by middlemen completely hiding the risks to which the victim is subjected. The
incentive for sale is created through promise of money only. Incapacity to make choices,
lack of understanding and attached to the health of the victim is completely ignored for
money. The victim is not aware who is recipient of his kidney and recipient is not aware
of who has been the source of granting him new lease of life. This sad scene of social
exclusion of victim deprives him of social capital which he deserves on account of his
sacrifice and this also is snatched by the surgeon along with money he makes out this

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victimization. These professionals fail to operate in best interest of the donor and neither
they are so concerned for the recipient. Their main focus remains concentration and
control of money.

Real Causes

At the same time disregarding the victims as justifying their parting with their kidneys
due to poverty pressure is something rebuttable. Over 40 victims were examined during
this study and there are some common emerging trends. These emerging trends are that a
drove of people from a particular village comes out to sell their kidneys. Most of them
are closely related or have common socio-economic background. They all are illiterate,
ignorant, and incapacitated to understand harmful effects of their risky choice of parting
with their kidneys. These victims live in vicinity of each other and are in communication
where they live. They are trapped by a middleman through someone who already has
been deprived of his kidney, living among them or in a neighborhood. Almost all of
them are lured by a middleman having nexus with professional surgeons and hospitals.
They all are attracted by a bait of financial relief that is short lived for them. Money is
seen as easy coming pleasure with no concern for post removal complications. These are
strong socio-cultural factors contributing to this phenomenon of self-regression by the
kidney donors. Blinded by the attraction of money, these living donors also have low
tendency of considering their responsibilities towards society, friends, family and
themselves. Over 97% of these victims agreed that money proved a short lived relief and
their agonies have increased after removal of kidney and they regretted their decisions.
Blaming poverty is thus unjustified on the grounds that this practice of kidney sale is
restricted only to some parts of one province where a network of kidney transplant
centers and hospitals are operating and professional surgeons are patronizing this
criminal activity. Whereas one-third of the total population of 170 million lives below
poverty line and the poor are located all over four provinces. The real catalyst for this
menace is the lust for money with which these professional white-collar criminals are
obsessed. Like all other sectors of life, it is the unholy network of middlemen organized
by these professionals that has lured these victims to an extent that they get ready to part

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with their kidneys. The menace of kidney trade has been restricted only to those areas
where, these networks of middlemen have access. Perhaps this mafia targets a selected
community where it is easy to penetrate and keep things away from media and civil
society.

This social interaction of needs of victims and lust for money of professional surgeons
explains the phenomena of glamorization and de-stigmatization of white-collar
criminality while both victim and perpetrator stand at different levels of social hierarchy.
A handful of professional surgeons having all necessities of life at their disposal continue
to pursue their goals of getting rich even at the cost of ethics, morality and bringing the
society and country on the whole into lime light of national and international shame and
notoriety. On the other hand there are recipients who are striving to merely maintain their
lives because of need of physical survival, although they may be affluent enough. There
is yet another class of victims, the poor people living in abject poverty striving to meet
their basic needs for survival who are lured into parting with their vital body parts for
money, a short lived pleasure. The professional surgeons using their position of privilege
avail all opportunities to exploit their victims with a motivation for financial gains. This
social scenario leads us to a juncture of Maslows motivation theory of basic needs and
Colemans theory of motivation and opportunity for criminal behavior. In this paradigm
the victims are at lowest level of Maslows hierarchy of needs where they are just
struggling at this lowest level of pyramid to meet their most primitive needs of physical
survival, and safety. In this pursuit they are motivated to part with their vital organs in
exchange for money. When physical needs are lacking, they get motivated to compromise
on their safety and self esteem needs and move downwards from these upper levels to
meet their physical needs. They continue to protect their safety needs of preserving
morality and their family for example they do not persuade their family to commit
immoral acts for money. However, they compromise on self esteem needs where they opt
for social self-relegation by permitting others to intrude on their body. In contrast the
professional surgeons resort to criminal behavior because they are motivated to make
quick money by all means. They treat human beings as lifeless articles those can be
manipulated disregarding their position as human beings having feelings, needs, emotions

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and respect. Their professional positions coupled with other factors provide them
opportunity for committing the white-collar crime. The other factors contributing to this
criminal behavior are lack of law on organ transplant and availability of a ready victim.
Non existence of a regulatory mechanism and unquestionable trust and respect attached
to the profession are other contributing factors leading to opportunity for criminal
behavior.

On a larger canvas, the mechanics of criminal opportunity and motivation operates in a


social environment of power lag between the powerless and powerful. In this scenario the
victim is powerless and the perpetrator is powerful. This power-lag dynamics is catalyst
for criminal behavior. Both powerlessness and powerfulness are relative entities within a
particular social environment.

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