Media’s partisan image
By Syed Irfan Ashraf
HUMA Wasim Akram, Imanae Malik and Faiz Muhammad Khan. The tragic and untimely death of each has sparked a vehement debate on the state of the medical profession in Pakistan.
While the National Assembly and the courts try to ascertain the cause of each death and the media clamours for accountability of doctors, the toll of accidents and deaths at the hands of doctors continues to rise throughout Pakistan.
Hearing these reports the average Pakistani planning to visit a doctor fears for his life, wondering perhaps whether the doctor will cure him or maim him or kill him. It is fair to ask, if this person is irrational and expects too much, and the only way to answer this question is to examine the nature of the duty a doctor owes to his patients and to consider means through which the law can compel him to perform it.
The first and most succinct formulation of the duty owed by a doctor to his patients is contained in the Hippocratic Oath written in Greece sometime in the fifth century BC by Hippocrates, the man recognised as the father of western medicine: “I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.” Although the language of the oath has evolved through the ages, its essence remains the same and continues to guide modern medical ethics throughout the world.
This duty has been recognised by law as a doctor’s (and other medical practitioners’) ‘duty to take care’ and applies irrespective of whether he has signed a contract of service with the patient, incorporating or excluding such duty.
The underlying assumption is that a person who offers medical advice and treatment implicitly states that he has the skill and knowledge to do so, to decide whether or not to take the case, to determine the nature of the treatment and to administer the treatment. If, therefore, in his treatment, a doctor deviates from accepted standards of practice and causes injury to or death of a patient he is guilty of professional negligence and liable to pay damages to the patient or his heirs.
The law on medical negligence has developed considerably in the West where doctors maintain professional liability insurance to offset the risk of claims brought against them for professional negligence. Across the border, Indian doctors may also be held liable under consumer protection laws (unless they have provided the service free of charge), or under the general civil and criminal law. In all instances, however, a doctor can only be held liable if the person suing him succeeds in proving – or the situation is so clear that it speaks for itself – that the doctor is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. Doctors cannot, nor are they expected to, guarantee either their skill or the outcome of the treatment. All they can do is act with reasonable care.
In Pakistan, the law relating to medical negligence is at a nascent stage and the concept of professional insurance for doctors almost non-existent. The few cases decided by the high courts endorse the duty owed by a doctor to his patient. Of particular interest is Justice Mushir Alam’s judgment in the case of Mrs Rahat Ali v. Dr Saeeda Rehmanin which he states, “a … doctor is to take all due care, take necessary precaution, give proper attention while extending advice, treatment or when operating upon”.
He goes on to state, however, that “[in the case of doctors]general presumption is attracted that they have performed their duties to the best of their abilities and with due care and caution [unless] it is established through cogent evidence that [they]…failed to take necessary precaution, due care and attention or acted carelessly and negligently”.
A judicial opinion such as Justice Mushir Alam’s offers some hope to the patient and his heirs: if a person suffers at the hands of a doctor, or dies due to the treatment, he or his heirs may sue the doctor and claim damages either from the doctor or from the hospital or clinic that employs him. However, the rigours of litigation are such that only educated and reasonably affluent urban dwellers are likely to venture into it whereas others would find themselves at the mercy of doctors and, worse still, of quacks masquerading as doctors.
One solution is to enable persons to seek redress through consumer courts, as is being done India. These courts are located in smaller districts and a person may appear before them without a lawyer. Here too, however, he would still need to establish that the injury or death was a result of an act or omission of the doctor. It is unlikely that a layperson would be sufficiently savvy or have access to necessary materials, to make the legal connection between the outcome, of which he complains, and the treatment he was given.
In any event, redress through the courts is a remedy after the fact and offers little comfort to a person facing the prospect of losing a limb or his life. Therefore, more important than allowing greater access to courts and enhancing the penalties for negligence is to take steps to prevent negligence from occurring in the first place.
Perhaps this calls for reform of the Pakistan Medical & Dental Council Ordinance 1962 to ensure that the council is a lean, efficient and independent body run by medical practitioners for the benefit of the profession and the public and which is diligent in improving the standard of medical education, training and licensing throughout Pakistan. At the very least the power of the council to restore the licence of a medical practitioner once it has been revoked needs to be carefully reviewed to eliminate any potential of abuse.
While recognising not only that doctors owe a fundamental duty of care to their patients but also that there is need to reform the present legal framework of the profession, it is essential to ensure that the focus of all reform is on distinguishing those doctors that act in good faith and to the best of their ability from those that are negligent, rash or reckless and on punishing only the latter with appropriate and objective severity. A solution lacking this balance will drive out any good doctors that may still remain in the country and leave the field open to their less vigilant peers to play with the lives of patients according to their whims.
The writer is a barrister.