Medical Negligence Law; for a Better Approach in Sri Lanka

Doctors are expected to use their special expertise knowledge and skills to save patient’s lives without being negligent and if a patient suffers an injury due to negligence of doctor, there’s a remedy available under civil law. In a medical negligence law suit, the plaintiff has to prove four elements, and whether the defendant doctor has attained the required standard of care is a complex factor which is difficult to determine in a lawsuit. In English law several tests have been developed to measure this requirement in a medical negligent lawsuit. In today’s society the patients want best of care and the doctors wanted to treat their errors as human errors. While granting a satisfactory solution to the victimized patient, the courts also have a duty to allow doctors to behave without fear of litigation. So with the emerging concepts of patient autonomy and the patient safety, medical negligence has become a debatable issue today. This paper analyzes some case studies, articles and books of medical negligence law with the main objective of examining the required standard of care by doctor. Medical malpractice lawsuits have continued to rise in western countries over the past years. It directly affects clinical freedom and therefore doctors tend to take defensive actions when treating patients. In countries like Sri Lanka on the other hand, people are not much aware about medical negligence even terrible incidents take place, causing injustice to patients. Based on the analyzed issues and identified best practices (such as no fault compensation schemes, Alternative dispute resolution), this paper discusses about how Sri Lanka can best respond to the patient safety approaches by law reforms with the aim of reducing medical negligence to ensure patient safety and also to reduce risk of litigation. Keywords— Medical Negligence, Litigation, Reforms I.INTRODUCTION Medical profession is regarded as a noble profession. The doctors are expected to use their special expertise knowledge and skills to save patient’s lives without being negligent. If a patient suffers an injury due to the negligence of the doctor, there’s a remedy available under the civil law. A person who claims a negligent medical malpractice, have to prove four elements. Adequacy of the standard of care exercised by the doctor is the main problem associated with medical negligence claims. In a malpractice law suit the court has to determine whether the defendant doctor has attained the required standard of care. In today’s society the patients want best of care and the doctors wanted to treat their errors as human errors. Moreover it is essential to protect patient’s rights, who approach doctors with lot of expectations. While granting a satisfactory resolution to the victimized patient, the courts also have a duty to allow doctors to behave without fear of litigation. So with the emerging concepts of patient autonomy and the patient safety, medical negligence has become a debatable issue today. Medical negligence is “the breach of duty of care towards a patient by an act of commission or omission, resulting in damage or harm or injury to a patient” (Fernando.R, 2013). Medical liability lawsuits are civil actions designed to determine whether a doctor was professionally negligent and whether the negligence caused the harm. Due to the inherent weaknesses associated with the fault based civil liability system and the adversarial litigation procedure in Sri Lanka, it is doubtful whether ill persons are ever be able to claim compensation for their injuries. The main research problem of study revolves around some issues in medical negligence legal framework and lack of public awareness about remedies associated with medical negligence. Therefore, the study reviews the necessity of a paradigm shift in medical negligence cases with reference to duty of care. The paper also attempts to investigate the necessity of moving to alternative modes to redress victimised patients in Sri Lanka. II. METHODOLOGY This paper review some past literature, analysis of past case studies and books in the area of medical negligence law with the main objective of examining the required standard of care by a doctor, which is one of a main factor of a medical negligence claim. Several reforms to Sri Lankan law is proposed in the light of analyzed case studies, academic expressions and identified best practices around the world to protect the interests of both the patient and the doctor. III.DISCUSSION In a medical negligence claim, the plaintiff has to prove that the doctor owed a duty of care, doctor violated the required standard of care, person suffered a compensable injury and the injury was proximately Proceedings of 8 International Research Conference, KDU, Published November 2015 116 caused by the act. In most cases, breach of standard of care is determined according to the standard of the ‘reasonable man’ and where there‘s a breach in the professional duty, that is determined according to the standard of comparable professional practice (Bryden.D, & Storey. I, 2011). The court has to determine whether the defendant doctor has attained the required standard of care, taking into consideration of all the relevant important factors in order to balance both parties’ interests, the doctors and the patients. Traditionally it is considered that the doctor has not breach the standard of care, if the practice is supported by a responsible body of similar professionals. This test for medical negligence was established in a case, Bolam v Friern Hospital Management Committee (1957 1 WLR 582). This standard was again accepted in cases such as, Sidaway v. Board of Governors of Bethlehem Royal Hospital and the Maudsley Hospital (1985 AC 871), Maynard v. West Midland Regional Health Authority (1984 1WLR 634) and in Whitehouse v. Jordan (1981 1WLR 246). According to the Bolam test, the doctor is not negligent, if he has acted in accordance with a responsible body of medical opinion. This approach has been severely criticized as it fails to address patient’s interests rather than giving more interests to the role of the doctor. The idea derived from the judgment in Bolitho v. City and Hackney Health Authority (1997 4 All ER 771) allowed courts to behave more actively with regard to the question of standard of care, evaluating rights of all the concerned parties. With the Bolitho judgment a two stage test was recognized in English law. This two stage risk analysis test was used later in Marriott v. West Midlands Health Authority (1999 Lloyds Rep Med 23) and in Penny, Palmer and Canon v. East Kent Health Authority(2000 Lloyds Rep Med 41). Today the world highly speaks about human rights. Patient’s rights are an important part of that and have become a strong debate in today’s world. Rather than highly relying on medical evidence, the decision of Bolitho case allowed the courts to reach a conclusion on the reasonableness and the duty of care of clinical conduct by considering all the competing interests and values. It is the duty of the experts in the medical field who possess necessary knowledge, skills and experience, to assist the court impartially to determine standard of care by providing a valid and a reliable scientific medical testimony. The House of Lords decision in Bolitho case invited the courts to have a closer scrutiny of the expert evidence and the reasonableness of the doctor’s conduct rather than accepting the standard of care determined by a group of professionals. This opened the way to critically analyse whether the opinion given is reasonable and logical. Accordingly, under English Law, the standard of care must be in accordance with the practice accepted by a respectable body of professionals and is expected to be up to date and current practice also must be reasonable and logical and the conclusion reached, must be defensible by reason. Negligent liability of a doctor also can occur if the doctor failed to disclose necessary information to the patients. Informed consent is the process by which the treating health care provider discloses appropriate information to a competent patient, so that the patient may make a voluntary choice to accept or refuse treatment (Appelbaum P.S, 2007). The consent of the patient should be given with full knowledge of the risks involved, probable consequences and the alternatives. The doctor or the healthcare provider must disclose sufficient information to the patient or to the guardian to give the consent. In modern medical practice, doctrine of consent is paramount important and the doctor has to disclose the material risks inherent in the treatment and also the patient has to give the consent with full understanding (Mayberry M.K,& Mayberry J.F, 2002). In some situations, the failure to obtain the consent may lead to a medical malpractice law suit. The health care provider has a duty to provide all the potential benefits, risks, alternatives in the medical procedure which he/she is going to undergo and has to obtain the consent of the patient. In a country like Sri Lanka, because of the knowledge gap between the doctor and the patient, there is no adequate discussion between the doctor and the person who gives consent to the treatment before signing the consent form. In, Chester v Afshar (2004 UKHL 41), a question arose regarding the failure to disclose information. The court considered whether the consultant’s omission provided a sufficient basis for establish a causal link between the harm and the breach. Sri Lanka has a society which accepts the hierarchical orders and the medical profession is regarded as a noble profession which is in the top level of the hierarchy. Sri Lankan Constitution (1978) contains a Fundamental Rights Chapter. But right to life and patient’s rights have not been recognized as fundamental rights under the present constitution. Even though there are number of patients in Sri Lanka who suffers from medical negl