Thursday December 08, 2022

Rights of patients

September 12, 2022

In a case of severe medical negligence at a healthcare centre in Multan, at least 12 patients completely lost eyesight in one eye after they developed postoperative complications. This happened early last year (2021), and the surgery was conducted by a senior healthcare provider with professional experience spread over two decades.

At the time of the incident, the surgeon had a government job and was simultaneously running his private clinic and conducting surgeries at another private hospital.

The Punjab Healthcare Commission (PHC) was quick in its investigations, held the eye surgeon liable under criminal laws and forwarded his case to the Pakistan Medical Commission (PMC) and the Primary and Secondary Healthcare Department for further action. The commission also sealed the surgeon’s clinic for not complying with minimum standards and imposed a fine of Rs0.5 million on the private hospital, where botched cataract surgeries were conducted.

Later, the PMC submitted an inquiry report to the Punjab government. However, what happened next is not known. We don’t know what disciplinary action the government took against the surgeon and if the PMC cancelled his licence. It is also unknown whether the surgeon was tried for the criminal offence of committing medical negligence in a court of law and penalized. But, the most important concern is whether the patients who lost their eyesight were financially compensated.

The then PHC chairperson, Prof Dr Attiya Mubarak Khalid, seemingly expressing her limited domain, said that the affected persons could approach the local police with a copy of the PHC order to initiate criminal proceedings under the Punjab Hepatitis Act 2018 and other applicable provisions of laws.

Under the newly enacted provincial healthcare regulations, medical negligence means a case where a patient sustains an injury or dies due to improper treatment in a healthcare establishment and, in the case of death, determined based on the medical autopsy report. It further explains that a healthcare service provider may be held guilty of medical negligence if the healthcare establishment does not have the requisite human resource and equipment that it professes to have possessed; or s/he or any of his/her employees did not, in the given case, exercise with reasonable competence the skill which their employee did possess.

With the mushroom growth of the private sector in healthcare, there has been an increase in medical negligence, maladministration and malpractice cases. To manage and provide high-quality healthcare service delivery, all provinces have established regulatory bodies in recent years – the Punjab Healthcare Commission (2010), the Khyber Pakhtunkhwa Healthcare Commission (2015), the Sindh Healthcare Commission (2014), and the Islamabad Healthcare Regulatory Authority (2019). Balochistan has set up the Balochistan Healthcare Commission which has not started its operations yet.

The new regulatory regime is to supposedly bring sector-specific expertise with simplified procedures and the power to take pre-emptive action against possible infringements of the law. It also safeguards against the enormous business clout by offering a uniform policy for all stakeholders.

They do this by registering and implementing the minimum service delivery standards (MSDS) in public- and private-sector healthcare establishments. The violators are mainly fined. The appeal against the decisions of the regulatory commission is made to the district court under customary laws, which restricts its scope of being a specialized agency on the subject that should have relieved the courts of unnecessary burden.

However, the real test of the regulatory bodies is on how to financially compensate the victims of medical negligence – an area where the new setup has nothing to offer. Also, the regulatory mechanism has come up with a rather bizarre idea to scare off patients even from filing a complaint. Every complainant must submit an affidavit swearing that no allegation contained in the complaint is without reasonable and justifiable ground and that it is not being made to harass, defame, embarrass, and pressurize the party complained against.

They have to make a declaration on stamped paper that goes: “That I fully understand that in case my complaint is proved to be false, then I shall be liable to pay fine, which may extend to Rs200,000.” So the onus of proving the complaint is on the patient who already has been suffering and surely does not have enough medical knowledge to prove his case.

Although there is a charter of patients’ rights, which recognizes patients’ right to seek compensation if they have been harmed by, including but not limited to maladministration, malpractice, negligent treatment, or failure on the part of healthcare service provider, or any staff or employee or others, rendering services at the healthcare establishment. It has not been explained how such patients will be compensated. Medical negligence ranges from the denial by health professionals that it exists to assertions by consumers that it is a severe and widespread problem.

A healthcare provider includes doctors, nurses, midwives, dentists and physiotherapists. And negligence may include the use of outdated knowledge or skill or not taking the necessary safety measures. Similarly, most diagnosed therapeutic procedures rarely conclude in fully curing the patients. It is still not clear at what point medical negligence translates into criminal offense as it is defined as a civil matter.

Another related issue is the ‘informed consent’ of the patient. This means that a patient must be informed about his illness and the procedures used to diagnose and treat him. However, doctors withhold such information because most patients do not understand the intricacies of medical treatment. Still, doctors are not absolved of their duty to educate a patient about the possible side effects of the procedure and alternative treatments before getting their ‘informed consent’.

The developed world is finding solutions by introducing ‘no-fault compensation’ and ‘malpractice insurance’. In no-fault compensation, a patient is covered against mishaps without proving that someone was at fault. The assumption is that health intervention can fail even if no one does anything wrong or acts negligently.

Malpractice insurance is a type of professional liability insurance purchased by healthcare professionals which protects them against patients who file suits against them under the complaint that they were harmed by the professional’s negligence or intentionally harmful treatment decisions. Malpractice insurance also covers the death of a patient.

In Pakistan, victims can seek remedies under tort law which deals with everything that in the eyes of the law is wrong and requires remedy. But getting a remedy under torts is a lifelong ordeal, cumbersome and expensive. Lawyers, too, are not interested in pursuing cases under this law. Moreover, experts believe that tort law is underdeveloped in Pakistan and requires codification, such as in the case of defamation laws.

The emerging healthcare regulatory regime should be patient-centric and develop a unique specialized system instead of referring cases to the courts under customary laws. Otherwise, these bodies will end up becoming another bureaucratic setup, burdening taxpayers and doing business as usual.

The writer is a freelance contributor.