Just a minute, doc
Chham Maya cannot have a baby. The reason: Her uterus has been removed. But why? The real issue starts now as she became a victim of a surgeon’s sheer negligence. The man with the scalpel thought she was another person. Can there be a greater medical bungle? Thus goes the story. A team led
by Dr Jeetendra Pariyar of Bharatpur Cancer Hospital recently removed the uterus of Chham Kumari Bohora, 32, mistaking her for another patient by the name of Kesh Maya. Chham Kumari had visited the hospital four months earlier for thyroid surgery. Even months after the surgery, she didn’t see any sign of improvement. She thus went to the hospital for a follow-up. Little did she know what fate had in store for her. Her healthy uterus was removed in an incident of gross negligence.
There has been a steady rise in medical negligence cases in Nepal in the past few years. Negligence is a tort concept that includes four steps. They are: duty of care, breach of that duty, proximate cause of injury and damages. And, they flow in sequential order. Alternatively, a case of medical negligence entails all these four. First, the medical practitioner owes duty to the patient. Second, there has been a deviation or departure from accepted medical practice. Third, there must be clear evidence that such departure was a proximate cause of injury, leading to the incident.
The attending doctor and his team owed the utmost duty to Chham Kumari in terms of studying her medical history and the final diagnosis of her ailment before deciding any kind of surgical intervention. The duty of care in medical cases is so high that even for the right treatment being administered to the patient; the doctor has a duty to warn of possible adverse effects of the proposed treatment. This is standard practice anywhere. And what has often been cited is what was established by the High Court of Australia in Rogers v. Whitaker 1992 HCA 58.
Since a totally different treatment was administered to Chham Kumari and her healthy uterus removed, the duty of care has been totally violated. In fact, it is a case of an extremely high degree of violation. Considering that Chham Kumari was an old patient of the hospital, they should have been even more familiar with her medical condition. The fact that the medical staff got her ready for the removal of the uterus and made the necessary preparations speaks loudly of their lack of homework and negligence before identifying a patient for surgery.
Obtaining the consent of the patient is a must before any surgery. This should be on the basis of adequate information concerning the nature of the treatment procedure so that the patient knows what he or she is consenting to. As held in the Indian case of Samira Kohli v. Prabha Manchanda AIR SC 1385, the information discloses the (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives available, if any; (c) an outline of the substantial risks and (d) adverse consequences of refusing treatment. Barring cases where the patient is not in a conscious state of mind to consent, having a two-way conversation with the patient prior to surgery also acts as a check and balance mechanism to ensure that the right treatment is being administered to the right patient.
We have our Code of Medical Ethics. S 22 of the Code, inter alia, requires a doctor to treat the disease by making a proper diagnosis with his/her full intelligence and capability. Was Chham Kumari told what was being done to her prior to the operation? In other words, was she told that they were going to remove her uterus?
The Medical Council, as per S 23 of the Nepal Medical Council Rules 1968, can take action if the Code of Conduct mentioned above is found to have been violated. The rules mention that the medical practitioner’s name can be removed from the registration book upon proof of violation of the Code of Conduct and voting thereafter.
S 17 (b) of the Nepal Medical Council Act 1964 and its proviso thereof states that upon voting by two-thirds of the members of the council agreeing to such professional misconduct by the concerned doctor, the name of the doctor is removed from the registration book for a period of two years.
While these cases of malpractice come under the purview of the Nepal Medical Council Act and Rules, the Consumer Protection Act 1998 also governs services, and medical services also qualify as services under this definition for the purposes of this act. In the Indian legal scenario, this has been adequately established by the landmark judgment on medical negligence called Indian Medical Association v. VP Shantha, AIR 1996 SC 550.
Our Consumer Protection Act 1998, inter alia, protects a consumer from irregularities concerning the quality of consumer services. Therefore, an aggrieved patient under S 20 of the act has the recourse of filing a case in the district court within 35 days after the inspection of the inspection officers. As per the act, a complaint for compensation can also be filed with the compensation committee present in each district.
Medical services in Nepal have expanded significantly with the new arrival of medical colleges and hospitals during the last 20 years. Our doctors have had their accomplishments. At the same time, there has been a steady rise in medical negligence. It is a known fact that many cases of malpractice go unnoticed. However, Chham Kumari’s case has brought such negligence into wider public notice this time. Now the question is: How do we go about dealing such a situation? The answer is two pronged. One is punitive and the second is preventive.
We have laws that have some recourse for these cases. Here again the question arises how trained and competent the inspection officers are in terms of understanding incisively cases of medical negligence. Also, instead of having too many channels of resolving a medical negligence case, would a single and more specific legal mechanism that deals with these specialised cases be more effective?
It may be a good idea to form a team of doctors and lawyers to explore and investigate to create a more robust legal mechanism to handle these cases. This will ensure a fair platform for doctors to carry out their jobs better and for patients to get more professional medical services. Sensitisation programmes making patients aware of their legal rights and subsequently orienting doctors to treat the patient at par with respect also go a long way in ensuring that such cases get minimised.
The crux is how we bring prevention and punishment together while dealing with medical negligence. Considering that prevention is better than cure, building a robust preventive mechanism is better than just increasing the level of the punitive threshold. In order that Chham Kumari’s fiasco is not repeated, serious groundwork must start at the earliest.
Lohani is a lawyer at the Supreme Court of Nepal
Posted on: 2011-09-06 07:08
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