While medical malpractice is not yet a criminal offence, it is slowly being recognised in Punjab as a civil one. Meanwhile, cases of malpractice are only piling up
On August 10 this year, the Lahore Consumer Court handed a landmark verdict on a medical malpractice damages suit: a senior doctor was slapped with over £212,000 in fines to the government and the complainant. His crime? Causing permanent damage to the liver of the complainant’s newborn daughter back in 2007.
The court’s verdict kicked off a country-wide debate on the subject of medical malpractice, which has remained largely uncovered by legislation. But in truth, with cases of medical malpractice piling up across Punjab, public pressure had already been building up for the government to devise a mechanism to redress complaints.
In 2010, the provincial government promulgated the Punjab Healthcare Commission Act-2010, after the need for such a regulatory body was highlighted in the wake of high-profile cases of medical negligence. One of those cases was that of Imanae Malik, a three-year-old girl who was taken to the hospital for a burn wound complaint back in 2009. She died after doctors administered injections which proved to be fatal.
While Malik’s case took place at an established medical facility, the unregulated burgeoning of private hospitals in Punjab, particularly in the provincial capital, had also created a mess. A large number of misdiagnosis and malpractice cases began emerging from these facilities, without much option for legal recourse.
“The situation is very disturbing since the complaints of medical malpractice are surfacing at an alarming level,” argues Prof Dr Javed Akram, vice chancellor of the Shaheed Zulfikar Ali Bhutto Medical University Islamabad and the chief executive officer of the Pakistan Institute of Medical Sciences (PIMS).
“If you want to know the scale of medical negligence, go and find complaints in gynae-related surgical procedures,” he asserts.
According to the professor, the ratio of surgeries conducted in gynaecology wards across the country is inordinately high (as compared to any other form of surgical intervention).
“Nearly four million babies are delivered every year in Pakistan; about 80 per cent of these deliveries are at homes or in some ‘odd’ atmosphere,” he argues.
Quoting a recent report, the professor argues that Pakistan sits at the wrong end of most infant death-related statistics: “Pakistan has the highest rate of first day deaths and stillbirths at 40.7 per 1,000 births, followed by Nigeria (32.7), Sierra Leone (30.8), Somalia (29.7), Guinea-Bissau (29.4) and Afghanistan (29.0). We have 748,100 pre-term births annually, which is the fourth highest incidence after India.”
“Unfortunately, the current legislation is neither capable of protecting patients nor does it safeguard the care-providers. Legislation has to be revamped along modern standards in order to provide justice to all,” Prof Akram says.
Consequently, the Punjab Healthcare Commission (PHC) surfaced as the first statutory body in the province to regulate the delivery of healthcare services. Established in 2011 to regulate both public and private sector hospitals and to improve the quality of healthcare across the province, the PHC is governed by an independent Board of Commissioners. With a number of consummate professionals in its ranks, the PHC wants to be acknowledged as an autonomous regulatory body.
Before the PHC, the Pakistan Medical & Dental Council (PMDC) was the only major regulatory body in Pakistan which was addressing complaints of medical malpractice or negligence. In fact, the PHC and the PMDC are the only two major independent bodies which address medical malpractice and other identical complaints surfacing in both the public and private sector health facilities.
But while the PMDC can only suspend a doctor’s license, the PHC’s remit is wider: it has been mandated to investigate cases and recommend the same to other relevant state organs, including the police, the health department and the PMDC, to initiate action against the “guilty” health providers in accordance with their rules and regulations.
The Punjab government notified its new regulations in August 2014, under which a Complaint Management System was also constituted. This system was mandated to investigate all kinds of complaints, from a minor mistake to criminal negligence during the treatment process.
Section 6 of the PHC Regulations-2014 clearly defines the scope of the complaints: “The Commission may accept for the purpose of hearing and passing appropriate orders etc. and for taking such remedial steps etc. as per law, a complaint, regarding medical negligence, maladministration, malpractice, or failure in the provision of healthcare services.”
Complainants have been provided a detailed overview of filing the complaints and pursuing them till the outcome of the inquiries/investigations. They have also been allowed to hire lawyers and medical experts to prepare evidence, and pursue their cases properly due to the technicalities involved in the medical malpractice cases.
Such an elaborate mechanism was required since the PMDC’s powers to provide relief to complainants only pertains to health practitioners who are registered with them. Those not registered with the PMDC cannot be punished.
On its part, the PMDC has defined a complete procedure for the complainants to file applications against offending health practitioners. “Where the information in question is in the nature of a complaint by a person or body charging the practitioner with infamous conduct in any professional respect or professional negligence, such complaint shall be made in writing on a stamp paper attested by a magistrate addressed to the registrar, and shall contain that grounds of complaint and shall preferably be accompanied by one or more declarations of witnesses as to the facts of the case,” read the PMDC regulations.
The PMDC has clearly defined the rights of patients in its regulations, Code of ethics of practice for medical and dental practitioners. Professional misconduct or negligence is judged by a peer group of the Council, known as the disciplinary committee.
If the medical or dental practitioner is found to be guilty of committing professional misconduct, the Council may award punishment under the rules, or as the case may be, removal altogether or for a specified period, from the register of medical and dental practitioners. Under the rules, the name removal is to be widely publicised in the local press, including conveying the information to various local and international medical associations, societies or bodies.
The drawback of the laid down procedure is that the PMDC’s head office is located in Islamabad, and complainants have to undertake huge expenses to reach there and pursue their case. Since the council has no proper manpower, expertise and sufficient infrastructure to address the large number of complaints received from across the country, most enquiries remain pending for years. Many complainants abandon their cases too, due to procedural delays, complications, and non-availability of the officials concerned.
But again, the PMDC has no jurisdiction to initiate legal proceedings against offenders. At the most, the maximum penalty that can be handed down by the Council is to cancel the registration of the guilty party. With PMDC, due to its constraints, unable to dispense justice to aggrieved patients and their families, many started pursuing their case in local courts through civil suits.
“Medical negligence incidents are surfacing in different forms but many of them are going unnoticed. In Pakistan, antibiotic prescription stands at more than 50 per cent of the total patients, which is 20 per cent higher than that the global average of 30 per cent. Similarly benzodiazepine abuse is at alarming at 85 per cent,” he says.
The situation in the private sector is far more troubling as compared to the public sector, claims the professor, since private hospitals and clinics administer healthcare to about 80 per cent of the country’s population. The PMDC currently has over 200 registered hospitals in its register that can allow house jobs for doctors; nearly 150 are from the private sector.
“We have received 68 per cent of the total complaints pertaining to medical/surgical negligence in private sector hospitals while 32 per cent have been reported from government health facilities,” explains Dr Mushtaq Sulehria, senior official of the PHC.
Thus far, the PHC Directorate of Complaints has received 526 complaints. Around 335 of them have been disposed of by the PHC, says the officer, while the remaining 191 are under active investigation.
“The PHC has awarded penalties in 28 cases to the medics and healthcare establishments for committing medical negligence/malpractice and sent as many cases to the Punjab Health Department to initiate action against the guilty medics under Punjab Employees Efficiency and Disciplinary (PEEDA) Act,” says Dr Sulehria.
“The Commission has sent 11 cases to the PMDC for action against medics, four to the police for criminal proceedings, and slapped fines on 14 healthcare establishments. The PHC has also sealed premises of 10 health facilities due to violation of the Commission’s regulations,” claims the senior officer.
According to Dr Sulehria, the Commission has jurisdiction over complaints referred to it by the Punjab Health Department, the Supreme Court, the Lahore High Court, or the Punjab Assembly. It can also take action on complaints made by patients or their next of kin; or persons duly authorised by patients to pursue their complaints.
Critics of the PHC’s current operations believe, however, that the Commission has failed in establishing its complete independence as its focus has largely been the small-scale health facilities in Punjab. It has yet to complete investigations into high-profile cases which have been surfacing in renowned hospitals of Lahore.
The Commission may also take suo motu notice of cases of medical negligence, malpractice, maladministration or failure in provision of healthcare services, and issue consequential advice and orders.
In effect, any complainant in Punjab can pursue double punishment for an offending health practitioner — to have their license to practice revoked by the PMDC, and to seek damage claims through the PHC and local courts.
In such a scenario, doctors too are at risk of false or incorrect charges brought against them.
It is for this reason that Prof. Akram, who has also served the PMDC as head of its disciplinary committee for seven consecutive year in the past, says that malpractice insurance is a must for all practitioners.
“In Europe, particularly in England, no doctor can practice, prescribe medicine or operate or undertake any medical or surgical procedure without having malpractice insurance. There are insurance companies providing malpractice cover to doctors,” he explains.
“In the East, and particularly in Pakistan, the concept of malpractice insurance is not clear — neither on the part of the care provider or the consumer, which in this case are patients,” argues Prof Akram. “It is high time that the hospitals and institutes providing medical treatment must ensure that the doctors working in the respective institutes be covered.”
The professor was of the opinion that a structured programme of clinical/surgical audit is fundamental to the provision of quality healthcare. “This practice should be an integral and routine part of healthcare, not an exceptional or optional one,” he says.
Then there is the question of accreditation — another practice that is also missing in Pakistan.
“All hospitals, whether in public or private sectors, must strive for accreditation as is being carried by US-based agency, JCI. There isn’t a single hospital in Pakistan that has been accredited by JCI, but India has managed to secure JCI accreditation for more than two dozen hospitals,” says the professor.
Dr Akram explains that the Punjab Autonomous Medical Institutes Act-1997 and 2003 have both given a mandate for the clinical and performance audit of the health institutes by third party on annual basis.
“Unfortunately, this essential condition in the Act is being violated with impunity since the Punjab Health Department has failed to implement this law and a third party is yet to be notified since then,” he laments.
“Is it not a cruel joke that we are allowed to play with human life without having insurance cover while our policy makers value vehicles on the roads more than human lives?”
When and why are lab tests ordered? Are these too many? But more importantly, are they the right ones and has it led to better health care and diagnosis?
Were you to compare the number of prescriptions written and the number of lab requests ordered by the doctor, the latter almost always edge in front. Medical professionals argue that there is collusion in Pakistan (and possibly elsewhere in the world) between doctors and diagnostic facilities, which may contribute to the gamut of tests, scans and screenings that a patient is prescribed.
“For tests ordered, doctors are known to get a cut from diagnostic facilities,” says Dr Sania Nishtar, head of Heartfile, an Islamabad based organisation that strives to change Pakistan’s health systems. “This incentive-sharing mechanism, while not kosher, is almost ‘official’.”
“It’s quite common, and is quite institutionalised,” adds Dr Amjad Siraj Memon, a professor of surgery at Karachi’s Civil Hospital. He says most doctors are reportedly involved in getting a certain percentage from the tests they order from a particular lab. “There are PROs hired by labs who go shopping for doctors with whom they can strike a business deal.”
But these “kick back arrangements” are also made with hospitals, diagnostic machine owners as well as pharmaceutical companies and reflects the “decadence of our society” from which those doctors emerge, points out Dr Tasnim Ahsan, former executive director of Jinnah Post-Graduate Medical Centre (JPMC), where she worked for 24 years. However, she claims that the number of such “rogue” practitioners was small.
There is a public perception that doctors are ordering often unnecessary tests that are far too pricey and then sending patients to specialists without considering the scientific rationale for getting these tests done. Many attribute it to the medical profession growing increasingly avaricious and unscrupulous.
But to understand whether doctors are ordering too many unnecessary tests and treatments and why, medical professionals explain that these should be viewed in the context of the particular system the doctor works in.
“In the US,” explains Nishtar, “there is a strong culture of recourse to litigation so as to enforce professional liability claims. Hence the doctors may tend to order more tests than may be required.”
At the same time, there is a continuous tussle between insurance companies who want fewer tests (on patients since they are covered under insurance schemes) and doctors who want to order more tests (both for reimbursements from hospitals and to protect themselves from expensive suits filed against them for malpractice).
In the British system, on the other hand, the state provides free healthcare and “there the focus of the doctors is less tests so as not to overburden the system,” Nishtar remarked.
In Pakistan, Ahsan explains, the country has a completely bifurcated system for healthcare.
“The poor attend under-funded and over-burdened dysfunctional government hospitals. Doctors working and training in these hospitals learn to treat patients with limited investigations and drugs. But large private hospitals and teaching centres like to work as if they are in America,” she says.
“And the fear of being held responsible for malpractice is not always a factor since the ‘tort’ (a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act) law is not fully developed,” says Nishtar, whose organisation provides financial support to those who are too poor to access healthcare and therefore has seen the working of the hospitals at close quarters.
Dr Arjumand Faisel, a public health practitioner heading Arjumand & Associates, an Islamabad-based consultancy group who offer their services to governments, universities and research institutions, argues that such practices merely reflect our social mores, since doctors are part of the same society that we all belong to.
However, he says, young doctors today are “not trained to diagnose based on their clinical skills.” Poor teaching and not keeping their professional knowledge and skills up to date is often accompanied with the greed to make more money, he explains.
Dr Inayat Thaver, a health and population advisor at Mustashaar, a group of experts who offer technical and management services in the social and development areas with a special focus on health and population issues, concurs. “Compared to the good old physicians of yore, the new graduates prefer diagnosis by exclusion, rather than confirming the diagnosis by reaching a provisional diagnosis using their clinical skills,” he says.
These practices persist despite there being “practice guidelines” from reputed medical institutions which are regularly updated, based on emerging and new evidence from research. “These are considered the international standard of care for a particular disease,” explains Dr Ahsan.
“But few follow these SOPs and fewer still have confidence in their diagnosis,” says Faisel, as that requires meticulous history-taking and careful examination, which takes up a lot of time.
Having practiced as a doctor at Karachi’s Aga Khan University Hospital (AKUH) for well over 15 years, he recalls that when he was incharge of the community health sciences there, he ensured each junior doctor saw three patients, at the most, in one hour. “After seeing 12 patients in four hours, they had to take time off and refresh themselves before seeing the next batch,” he says.
But sometimes it is difficult to distinguish when what was judged by the doctor to be an important test later turned out to be unnecessary. At times, doctors order tests because they worry about missing but possible illness. There is, therefore, a need to check whether the diagnosis holds.
Conceding that there is just anecdotal evidence, Nishtar says that in the absence of a quality regulatory mechanism and scientific evidence, it was very difficult to say if there actually was “overconsumption” of diagnostics.
Lamenting the utterly “callous attitude at health centres”, she says it is further compounded by poverty and illiteracy.
“People are completely unaware of their basic rights in a climate of tolerating malpractice,” she says and concluded: “Reform won’t happen as certain cartels of doctors won’t like any kind of regulation placed on them.”
Defending her colleagues, Ahsan argues that doctors have to walk a tightrope as far as ordering investigations are concerned. “You are damned if you do and damned if you don’t.” This, she says, was especially true in an emergency where many things have to be ruled out quickly, in order to take a timely treatment decision to save a life.
And to be fair to her fraternity, she added that doctors inherently tend to “over- investigate” in order to not hold themselves responsible, “within their own minds”, for harming a patient as a result of “meagre investigative data”.
At the same time, says Ahsan, “the narrative that remains missing from these kinds of discussions is the life-time stress that doctors suffer from, on account of being responsible for somebody else’s life and meaningful survival.”
In the face of competing interests and the absence of a comprehensive law against medical malpractice, today’s doctors need to be scholars and researchers too
Prof Mohammed Idrees Adhi recently completed his services as chairman and professor of ophthalmology at the Dow University of Health Sciences and Civil Hospital Karachi. He is the president of the Ophthalmological Society of Pakistan, as well as the Karachi chapter of the Pakistan Medical Association. He is also the chairman of the editorial board of the Journal of Pakistan Medical Association.
What is the difference between medical negligence and medical malpractice?
Medical negligence in simple terms is a case where a medical professional did not use the skills imparted to them during their training in a proper way, thereby causing avoidable harm to their patient. He/she intentionally or unintentionally commits a mistake in the management of his patients that should not have been done.
Malpractice is the failure to do the right thing — where the right thing is defined according to accepted standards of medical care. In simple words, if a medical professional deviates from the accepted norms of patient management and welfare, they are involved in medical malpractice. Human error cannot be termed malpractice if steps are taken with good intention as per evidence based medical practice and standard procedures.
Can you cite a case of medical negligence?
Without disclosing the identities or the hospital, I came across the case of a child who lost his vision due to negligence of the doctors and staff members of hospital. The child was conceived after 14 years of marriage, and was born premature in the 28th week of pregnancy. He was subsequently kept in the intensive care unit (ICU) for about two months.
But this baby was never examined by eye specialists whilst in the ICU. Nor were the parents given any advice to see the eye specialist to screen for the possibly blinding Retinopathy of Prematurity (ROP) disease that affects the retinae of the baby. And that is what exactly happened.
When the child was about three months old, the parents realised that there was something wrong with his eyes. They then consulted the eye specialists, who diagnosed the baby to have ROP, and by the time I examined the baby, his condition was not treatable. ROP is preventable and treatable when diagnosed in time and that is in the early part of a baby’s stay in the ICU.
This is a clear example of medical negligence; a precious baby was turned blind even though this tragic outcome was avoidable and treatable. The family accepted it as fate and the will of God Almighty, as is the case in most of these cases, but there has to be a system where the doctor and hospital should be held accountable.
What are the current ways of regulating medical practice?
In Pakistan today, there are two levels to regulate medical practice. The Pakistan Medical and Dental Council (PMDC) is a regulatory body, and gives doctors their licence to practice (after qualifying a doctor has to register with the PMDC in order to practice). If there is a complaint against a doctor, the PMDC can look into the matter and if the doctor is found guilty of negligence, PMDC takes action against him.
The public has a right to be made aware about the availability of this platform and that the public could reach out to a regulatory body. A medical practitioner cannot practice medicine without a licence from the regulatory body which is the PMDC in our country. This regulatory body has a great responsibility both for implementing the guidelines for the medical professionals as well as for the education and looking after the medical needs of the general public. It is unfortunate that even our regulatory body (the PMDC) is suffering from political issues and the government is not playing its role; the political stakes are very high there.
The second level is at the Pakistan Medical Association (PMA), which is a representative body of doctors working both for the benefit of doctors as well as the patients. But the PMA cannot take any action as it is not a regulatory body like the PMDC. It has an ethical committee and if a complaint is brought to its notice, it checks the case and if it has some weight it can recommend it to the PMDC (or any regulatory body) for action. We (the PMA) cannot take any action but can try to bring medical practitioners morally to a position that doctors who are in the wrong apologise or even pay compensation to the patient.
Are there laws to check medical malpractice in the country?
Till a few years back there was no law and the aggrieved patient or his family had two options — either go for litigation which is a time-consuming and expensive process given the way our justice system works or to take things in their hands and resort to violence.
A consensus emerged some years ago that although there is a regulatory body, the government should form a commission to regularise the functioning of the hospitals, clinics, laboratories and medical facilities functioning in various provinces of the country. The commission must look after the security of medical and paramedical staff and must ensure that the patient’s rights are also taken care of. There should be well-defined standards of care and a mechanism of quality control of health delivery to the common man.
Both the hospital and doctors should be held responsible for a mishap during the management of patients if there was any medical negligence. The health facilities must only do the procedures where proper equipment and skilled personnel are present.
The PMA came up with a plan to make a commission taking on board all stake holders that included all health communities and their sister organisations, health secretary, health minister, law minister, advocate general, etc. and prepared a document, which became Health Commission Act in 2013 after passage from the Sindh Assembly; it was earlier adopted by the Punjab.
It is meant to stop malpractice and define patient’s rights, to safe guard the security of doctors and paramedical staff, for quality control and standardisation of medical practice, hospitals, clinics, laboratories, etc. and would help improve the quality of healthcare services and help eradicate quackery. The commission would educate both doctors and patients in what is right and wrong. It can ask the doctors to explain their position and tell them if it was their fault. It is binding on the doctors to accept the commission’s decision. The commission has to set up protocols for hospitals, laboratories and theatres, and create awareness among the patients about the standards.
For the commission to be effective it is important that it is autonomous and free from government interference. The commission will be a platform for the patients to refer to get their grievances addressed. The commission will question the doctor for not fulfilling the identified standards and hold the doctors responsible and its decision will be binding for the doctors. It will recommend to the PMDC to cancel the doctor’s registration if the doctor is involved in medical malpractice and negligence.
What is the one competency that all modern doctors must have?
Modern medical education stresses a lot on competencies like research and professionalism but one important competency is communication skill. The patients have a right to know their problems and they need to be in the picture throughout the management of their problems. The consent to treatment that a patient signs should be an informed consent.
It is important that the doctor communicates with the patient, to explain the problem, what treatment will be given, what is the success rate of the treatment being given and what complications could arise. If a doctor does not communicate this to the patient he is not doing justice with the patient. These are patient’s rights and if a doctor does not do it he is not doing justice with his own profession.
Today’s doctor has to be a scholar and a researcher as well. These competencies were not given consideration in the past; if a patient comes to me I have to treat him according to today’s evidence-based medical practice. If I am not doing this I am not doing justice with either the patient or with profession, he said.
There is an argument about pharmaceutical companies influencing diagnosis and treatment. Is there any weight to such claims?
Pharmaceutical companies try to influence doctors in different ways — they may sponsor doctors’ foreign trips, furnish his clinic / hospital or send expensive gifts for the family. A doctor has choices when prescribing a medicine and priority in selecting a medicine should be efficacy, but if the doctor is influenced by these tricks and prescribe a medicine which is not as effective as another one available in the market he is not doing justice to the patient and can be called as involved in malpractice.
Has there been any government support in trying to regulate medical practice?
Political leaders should have a vision to visualise peoples’ problems, especially when professionals and their representative body like PMA are pointing them out, and they should come up with solutions.
The doctors have made themselves accountable and have acknowledged the rights of the patients. Now that we have given them a document, they are sitting on it for the last two years, quarrelling over which political party will have control over the commission and which party the commissioner/s should be from.
Published in Dawn, Sunday Magazine, August 30th, 2015