Medical malpractice occurs when a physician turns away from the accepted standard of care for the medical community and caused physical injury or caused or increased a mental illness to the sufferer. Clinical negligence, also known as medical negligence may take place from delay or failure to identify a disease, delay or failure to give the correct treatment to a certain condition, a treatment that goes completely wrong, provided wrong treatment, or failure to obtain consent.
A patient must establish all four factors of the tort of negligence for a successful medical malpractice claim, that is, firstly a duty was owed, a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient; secondly a duty was breached, the provider failed to conform to the relevant standard care; thirdly the breach caused an injury, the breach of duty was a proximate cause of the injury; and fourthly, the doctor caused the damage due to failure to live up the required standard.
Medical wrongs are done to citizens by the health care professionals (these include physicians, surgeons, dentists, therapists, and nurses etc).
Medical errors or to be more appropriate medical malpractices also happen in Pakistan, most common of which are the clinical negligence like, birth injuries to babies, birth injuries to mothers, improper use of forceps, caesarian, complications, incorrect medication, incorrect/failure to diagnose, negligent surgical treatment, anesthetic overdose, poor hygiene, misuse of instruments, etc. These claims may be against doctors or hospitals.
Giving the wrong drug or (wrong patient, wrong chemical, wrong dose, wrong time, wrong route), giving two or more drugs that interact unfavorably or cause poisonous metabolic by products, transplanting organs of the wrong blood type, incorrect record-keeping, duty of care of receptionist at general practice, failure to advise of risk of HIV (duty to patient’s sexual partner), failure to warn of material risks of various medical procedures, etc are all examples of medical malpractices.
Apparently, it is the responsibility of the Pakistan Medical and Dental Council (PMDC) to initiate disciplinary action against doctors as and when a complaint is received for professional negligence or misconduct.
The radical reforms in the health care systems in the United Kingdom after the highly publicized scandal of case of “Harlod Shipman” are an example to learn lessons in the last few years. This case refers to a single doctor’s malpractice and killing of few patients which has resulted in various reforms in the healthcare proviso of the country. Under the reforms, which builds on “good doctors, safer patients”, doctors will have their skills and competence checked every five years. Doctors who fail the revalidation process will be accepted to take further training.
In Pakistan, the PDMC needs to update its policies in the light of recent significant changes all around the world. The concepts like “good medical practice” and “good doctor, safer practice” of General Medical Council of UK should be considered to be adopted and modified according to local needs. The definition of a specialist needs redefining and the recognised experience of the health care professionals should be incorporated in this equation. Competence, education, and training of doctors are necessary elements to polish the doctors in true meanings.
Medical errors happen worldwide. In Pakistan, at present, a doctor with a postgraduate qualification is considered as a specialist by the PDMC. But in the past decade, it has become very clear that a postgraduate qualification on its own right does not make a doctor a specialist. Proper recognised training is essential to call a doctor a specialist in developed countries like USA, UK and Ireland. Achieving a complete training and a certificate of completion of training (CCT) or certificate of complication specialist training (CCST) is not considered sufficient now.
However, PMDC has got no means or policy to revalidate a doctor’s fitness to work in Pakistan.
When due to the fatal negligence committed by the doctor the deceased had lost life due to wrongful acts, gross negligence and carelessness committed by defendants/ doctors in their professional duties. Defendants were liable to pay damages in sum of Rs 10 million each and pay Rs one lac each to legal heirs of deceased and lady doctor also liable to pay Rs 3,65,000 as medical expenses to deceased husband. (PLD 2011 Kar 117) master Abdul Basit and another vs Dr Sadeeda Anwar and another (P 124, 128 to 132) B to K, M, O, R, S & U.
The information regarding doctors should be made public to earn their confidence. If required, the matter should be taken to the national parliament for an open discussion and wider public involvement, to which the council is accountable.
Pakistan needs a system which should be compatible with the modern delivery of a safe health care where patients and public can have confidence on the professionals and also on their regulations. A safe and high-quality medical care is a basic human right. The health professionals should be accountable for its delivery within the available resources.
Courts always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment that the act complained against him must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable. (PLD 2010 Kar 134) (P 142).
There is no liability in negligence unless there is a duty to take care. This establishes the necessary link between the claimant and the defendant. Such duties are widely recognised. In cases of doubt the modern test is whether there was forcibility and proximity and it was fair just and reasonable to impose the duty.