ABSTRACT

The aim of this research is to analyze medical negligence and lawsuits related to the cases of medical malpractice. In this research, I will take a look on the laws that are dealing with the cases of medical malpractice mentioned above. Medical negligence in Pakistan is a serious issue that has affected the lives of many individuals. It refers to any action or omission by a healthcare provider that falls short of the accepted standard of care and results in harm or injury to a patient. Common types of medical negligence in Pakistan include misdiagnosis, surgical errors, medication errors, and birth-related injuries. The consequences of medical negligence can be devastating and can lead to physical, emotional, mental and financial damage for the patient and their family.

INTRODUCTION

 

The practice of medicine means the applying of medical product for the purpose of preventing, or curing disease, or helping natural functions to work efficiently, to heal a physical injury. The journey of medical profession begins from early 1600, the beginning of 17th century[1], medical practice was divided into several types, but three main types are: the physicians, the surgeons, and the apothecaries. Among all these three types, the physicians were considered the most elite and important in the society. Furthermore, dentistry which is the practice of treating dental diseases is considered to be the oldest medical professions, dating back to 7000 B.C[2]. Medical professionals, particularly doctors are dealt with great honor and reverence in the world. The primary reason behind such great respect and special treatment is that the doctors are responsible for saving a person’s life and improve the overall health of their patients. They often face very challenging situations in order to save their patients’ lives. Medical practitioners are therefore, required by laws of health to maintain follow the strict standard of care while operating, to ensure the best treatment possible for their patients. In such way, the chances of maltreatment are reduced to some extent and the medical staff performs their duties dexterously and vigilantly.

According to a live census report, the total population of Pakistan is approximately 242 million[3] in which about 275,000 are registered doctors[4] [medical practitioners[5]] according to the Pakistan Medical and Dental Council; this makes a ratio of one doctor for 836 people. This ratio is gravely disproportionate. There are plenty of private hospitals and clinics which have the required medical facilities, instruments and staff members to ensure their patients smooth, and proper treatment, but most of the people cannot afford their services because, of their extremely high charges and difficult terms and conditions. Quite contrary to that, there are total 1201 government hospitals[6] in Pakistan which provide medical services at minimal cost, but there are not enough medical instruments and facilities available in such hospitals and have very little concern for the cleanliness of the hospital. Such hospitals are in atrocious condition. The medical staffs in the government hospitals are not well trained, educated and experienced which results in several maltreatment cases. The medical staffs of government hospitals are hired on very low salary, and are required to work for a long hours. Being underpaid and overworked, such individuals becomes unproductive resulting loss of motivation and performance their duty inadequately.

However, people are bound to prefer government hospitals due to the less financial expenses. Government hospitals are always full of patients, still no law and order is found there. Under such high work pressure and strenuous conditions, hundreds of patients are left over a single doctor to examine, due to which there is a possibility that the doctors, and the medical team can do some negligence from their side while performing treating there patients. The cases of medical negligence in Pakistan are rising on daily basis which makes the concern for medical malpractice a major issue in our society. It is also very important to bring up here that no health system of the world is perfect and as human beings are prone to commit errors (Muhammad H , 2017)[7]. Furthermore, to understand what medical negligence is and under which laws it is dealt with, we should understand what negligence is.

NEGLIGENCE

The concept of negligence is found in the Law of Torts. It means causing damage to some individual or something by not providing proper care to that particular thing or individual. One of the most studied Tort is the Tort of Negligence, and in Pakistan it is available in both Criminal and Civil Law. The Tort of negligence, involves injury caused by a form of carelessness while performing an act possibly with extenuating situations.

According to the case of Lady Dr. Nafeesa Saleem v. ADSJ[8], negligence as a tort is “the breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a sound and reasonable man would not do.” In the most simplified words lawfully negligence means an act of carelessness performed while performing a specific task, which may include some serious consequences.

 

MEDICAL NEGLIGENCE IN PAKISTAN

The concern of medical negligence is a quite important one, especially in Pakistan. Medical Negligence is the name of a misconduct of a medical practitioner or doctor by not providing required care which leads to the breach of their duties which ultimately results in harming their patient’s overall health. It is the duty of the doctor to take care of her/his patients for their treatment and recovery. It is very important to highlight that the medical staff has to provide treatments to their patients according to the medical standard of care described by the law.

‘Medical Negligence’ meant a case in which a person suffered an injury or dies as result of  maltreatment in a hospital or clinic and in case of death, determined on the basis of medical autopsy report, as demonstrated by the of case Riaz Ahmed v. ADSJ Rajanpur[9]. According to Punjab Healthcare Commission Act[10], Medical Negligence means a case in which a medical practitioner performs such an improper treatment in a healthcare institution that a person either sustains an injury or dies as a result of such maltreatment or practice. The most common cases of medical negligence reported in Pakistan include misdiagnosis, surgical errors, medication errors, and birth-related injuries.

Pakistan Medical and Dental Council (PMDC) are a statutory regulatory authority which has many powers and authority including the authority of handling the cases of medical negligence caused by their registered medical facilities. According to the Pakistan Medical and Dental Council [PMDC] code of ethics for medical and dental practitioners, “A doctor is bound to be complete loyal and honest with his patient and he should know the importance of protecting a human life. If he founds any treatment which is beyond his capability, experience and understanding he is under an obligation by Law to call for another physician to avoid any sort of maltreatment and mishap. The doctor is also required by Law to provide emergency care as a humanitarian duty.” [11] The PMDC code of ethics describes the responsibilities, duty, conduct and functioning of the medical practitioners registered and affiliated with PMDC via procedure, only authentic registered medical surgeons can practice medicines and perform surgeries. The honorable high court in a case clearly directed that police cannot made any observations and investigations in the cases of medical negligence. It is duty of the PMDC to regulate and make observations in the cases of medical negligence. And the court clearly declared that immediate FIR cannot be registered in such cases of medical malpractice.[12]

 

LAWS FOR MEDICAL NEGLIGENCE IN PAKISTAN

The ‘Right to Life’ as enunciated in article 9, Constitution of Pakistan 1973[13] is not only considered as a right to physical existence and survival or a right not to be deprived of living a normal life, but it also highlights a fundamental guarantee that it is the duty of the government being a welfare state to ensure the optimum enforcement of right of life; and right of life as defined by the Supreme Court[14] that the word ‘life’ covers all aspects of human existence. Therefore, negligence performed by the medical professionals and their respective staff results in the violation of the right of life.

In Punjab, the Punjab Healthcare Commission Act 2010 is accessible to deal with the cases of negligence and in Sindh; the Sindh Healthcare Commission Act 2013[15] is available to deal with the cases of medical negligence. Section 19 of Punjab healthcare commission act 2010 states the following:

(1), a person who is a medical professional provider will be held accountable of medical negligent on one of the following two conditions:-

(a)  The medical institution does not have the required human resource and equipment to treat their patients which it claims to have possessed; or

(b)  The professional or any of his staff members did not, in the present case, exercise with reasonable and required competence the skill which he or his staff did possess.

(2)  The recognized and known complications of a medical treatment or surgery treatment by law are not considered as medical negligence.

Apart from law of torts and health care commission acts of different provinces, a medical professional who has committed medical negligence can also be dealt with and punished under Pakistan penal code 1860 [PPC][16]. Section 318 of Pakistan penal code 1860 clearly states that:

“Any person, un willingly to cause the death of an individual or cause injury to an individual which results in the death of such individual, no matter by mistake of act or by mistake of fact, is said to have committed Qatl-I-Khata.”

Section 319 of Pakistan penal code 1860 [PPC]15 determines the punishment of Qatl-I-Khata. It states that:

“Any person who commits Qatl-I-Khata shall be liable to diyat”

In addition to diyat, the guilty person may also be punished with imprisonment of either description for a term which may extend to five years as ta’zir.

Section 321 of PPC states that:

“An individual, without any intention, un willingly causes the death of, or cause injury to, any person, does any illegal act which becomes a cause for the death of another person, is said to have committed qatl-bis-sabab.”

Section 322 of PPC states the punishment of qatl-bis-sabab. It states that:

“Any individual who commits qatl-bis-sabab shall be liable to diyat”

Doctors guilty of medical negligence should be dealt with, and punished as the laws mentioned above in order to set an example to avoid medical malpractice cases in the coming future in order to save valuable lives. Such strict actions will spread an awareness and conscious among hospitals and doctors which will result in exercising of more care and due diligence while treating and healing patients. Aggrieved person can file a suit for damages in consumer court as well as in high court against the negligent doctor and concerned medical institution.[17] No doubt medical profession is one of the noblest professions in the whole world, but still everyone is equal before eyes of the law, no matter what profession they are of and they are bound by the law. Everyone is equal before the eyes of the law as mentioned in the constitution of Pakistan 1973 article 25. Every citizen of Pakistan as an individual should see himself responsible to make sure that no case of medical negligence goes unreported and gets investigated. Unfortunately, there are many such cases of medical negligence that goes unreported. But as per the records of PMDC, approximately 200 cases are reported in PMDC which are still pending.[18]

The honorable court in their judgment declared that criminal law as well as civil law will be apply to the negligent person and both trials run simultaneously.[19]

COMMON NEGLIGENCE BY DOCTORS IN PAKISTAN

According to some local reports the most common cases of medical negligence reported in Pakistan are leaving foreign objects inside the patient’s body like towels, tools, taking long rest during operations and surgeries, leaving some wounds unstitched, and using unsterilized equipment’s during surgeries which results in fatal infections. In Pakistan doctors are only focused on making extra money by recommending extra tests, extra medications and by performing excessive medical procedures.[20]

REFORMS

To prevent Medical Negligence in Pakistan, several reforms need to be made. One of the most critical reforms is to improve the training and education of medical professionals. Medical schools and training programs must focus on teaching medical ethics, communication skills, and patient’s safety protocols to reduce the risk of medical errors.

Another critical reform is to increase oversight and regulation of the healthcare industry. The government must ensure that hospitals and clinics are adequately staffed and equipped with modern medical technology. In addition, the government must establish mechanisms for patients to file complaints and seek redress for medical negligence.

CONCLUSION

Medical negligence is a significant concern in Pakistan that has led to numerous cases of patient injury and death. Thousands of cases of medical malpractice are reported in our country and most of them go unreported due to poor check and balance authorities in our country. The causes of medical negligence are complex and multifaceted, and addressing them requires a comprehensive approach. Being a third world country, we cannot afford such cases of negligence as our nation is already going through a lot of financial problems so government should improve the training and education of medical professionals, increase oversight and regulation of the healthcare industry, and establishing mechanisms for patients to seek. Pakistan’s legal, administrative, and judicial systems are currently not strong enough to hold healthcare service providers accountable for their negligent practices. In order to improve the situation, it’s necessary to not only improve the laws surrounding medical negligence, but also to ensure that these laws are enforced through a judicial system that is easily accessible, speedy, and fair.

[1]https://medlineplus.gov/ency/article/001936.htm#:~:text=The%20practice%20of%20medicine%20in,often%20held%20a%20university%20degree.

[2]https://www.adea.org/GoDental/Health_Professions_Advisors/History_of_Dentistry.aspx#:~:text=Dentistry%20is%20one%20of%20the,and%20tooth%20decay%20were%20available.

[3] https://www.worldometers.info/world-population/pakistan-population/ accessed on 2nd Dec, 2023.

[4] https://pmdc.pk/ accessed on 2nd Dec, 2023.

[5] Medical practitioners include doctors, nurses, dentists ,surgeons, and other provider of healthcare services.

[6] https://www.emro.who.int/pak/programmes/service-delivery.html#:~:text=Public%20sector&text=The%20national%20health%20infrastructure%20comprises,facilities%20is%20estimated%20at%2023394. Accessed on 2nd Dec, 2023.

[7] Muhammad H, (2017). Legal Position of Medical Malpractice in Indonesia. The Social Sciences, Vol 12 Issue 8, 1473-1481.

[8] Lady Dr. Nafeesa Saleem v. ADSJ Multan 2022 PLD 18

[9] Riaz Ahmed v  ADSJ  Rajanpur 2022 P Cr.LJ 1067

[10]http://punjablaws.gov.pk/laws/2434.html

[11] https://pmdc.pk/

[12] Riaz Ahmed v  ADSJ  Rajanpur 2022 P Cr.LJ 1067

[13] https://na.gov.pk/uploads/documents/1549886415_632.pdf

[14] Shehla Zia vs. WAPDA PLD 1994 SC 693.

[15] http://www.pas.gov.pk/index.php/acts/details/en/31/251

[16] https://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html

15 https://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html

[17] https://www.dawn.com/news/1640769

[18] https://www.dawn.com/news/711896/cases-of-medical-negligence-on-the-rise-2

[19] Riaz Ahmed v  ADSJ  Rajanpur 2022 P Cr.LJ 1067

[20] https://www.dawn.com/news/742733/medical-malpractice

 

Written by Abdul Ghani Sohail, an aspiring law student.

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