LEGAL FRAMEWORK FOR MEDICAL
NEGLIGENCE CLAIMS IN PAKISTAN: A COMPREHENSIVE OVERVIEW
By:
SARDAR FARRUKH MUSHTAQ
Advocate High Court
Bio of author:
The writer holds an LLB degree from
University of the Punjab and is practicing attorney. He currently serves as
attorney in-charge at prestigious law firm FARZIL LAW. He also served as
General Counsel at Core Vision International Private Limited (Assets Cart),
Lahore he served at F.I.E Legal’s as senior partner. He also served as Legal
Officer at Digital Rights Foundation. He is a former Associate at Surridge
& Beecheno Lahore. He practices law in e-commerce, criminal,
consumer-protection, Medical Negligence, tax and corporate sectors. He can be
reached at farrokh@farzillaw.com
The Modern era gradually evolved
the sufficient supply of healthcare services in resonance with upto date
treatments and procedures, deemed helpful for curing different diseases which
usually involves higher risks of breach of duty of care and also brings in
vulnerability in respect to doctor relation relationship (DPR). When trust and
vulnerability meet in the sacred realm of healthcare, medical negligence casts
an ominous shadow, leaving victims in its wake. A patient approaches a doctor
with a perception that the doctor will treat the disease with the best of his
ability while maintaining reasonable duty of care however when a doctor fails
to do so it results into the inscribe ambit of medical negligence and such act
of doctor makes him liable to all the injuries and damages caused in failing to
exercise the duty of care. International convents and parchments ensure the
quality of the standard healthcare facilities such as Right to Health Report
by By Office of the United Nation High Commissioner For Human Rights,
WHO Constitution, 1964, Article 25 of the Universal Declaration of Human
Rights, The International Covenant on Economic, Social and Cultural Rights
(1966), Declaration of Alma-Ata, United Nations Millennium Declaration and
Millennium Development Goals, General Comment No. 14 (2000) issued by the
United Nations’ Committee on Economic, Social and Cultural Rights.
Moreover, the National legislation such as Article 9 of the Constitution of
Pakistan (1973) protects right to life as a fundamental right which
has been interpreted to include all facets of human existence.
So if defined in lay terms Medical
Negligence is “the breach of a 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
prudent and reasonable man would not do.
This Includes a legal duty to
exercise due care, breach of the said duty, consequential damage. Medical
negligence is an actionable negligence which insights itself as a tort as well
of which redressal, the damage occurrence is sufficient to entitle it as tort.[1]
Medical Negligence is always has
been taken as a serious activity which bear roots from the ancient principles
of Hummarabian code as:
If a physician operate on a man for a
severe wound with a bronze lancet and cause the man’s Death; or open an
abscess… of a man with a bronze lancet and de-story the man’s eye, they shall
cut off his fingers. If a physician operate on a slave of a freeman for a
severe wound with a bronze lancet and cause his death. He shall restore a slave
of equal value.[2]
Medical malpractice is when a
healthcare professional is aware of the possible consequences before making a
mistake that led to an injury and it is different from medical negligence when
a healthcare professional makes an honest mistake that leads to an injury. In
pursuance of Section 19 of the Punjab Healthcare Commission Act, 2010, the
medical negligence is lack of human resources and equipment which ought to be
possessed by healthcare establishment or the lack of the reasonable competence
and skillmanship furthermore if alborated Medical Negligence could be of many
types which may include improper diagnoses, improper treatment, lack of post
procedure under observation care, information disclosure was not done by
doctor, denial of service by a healthcare providers, Non-Confidentiality, Lack
of resources at medical Health care facility, Untrained staff and Lack of
equipment etc.[3]
The Courts mostly rely itself on a Bolam Test established in
Bolam v. Friern Hospital Management Committee[4]
which is also known as the peer review of the action of a healthcare
professional’s action. The essence of the test says that a doctor is not guilty
of medical negligence if he has acted within the ambit of acceptable practices
by the body of medical skilled men.
Although medical negligence is a
unacceptable act of the healthcare provider but not every time the healthcare
provider is held accountable of. The healthcare provider can seek one of the
available defence as per the circumstances to avoid the liability such as no
causation, foreseeability, standard practice. However two different school of
thought exists concerning the defense. First being that the Injury was a result
of recognized risk, clinical judgment, or Contributory Negligence. Or the
Injury was caused by Pre Existing Injury, Good Samaritan law; Statue of
Limitation, known Complication.
A
victim of medical negligence can file a complaint either with Pakistan Medical
Commission or with the provincial health care commission against healthcare
establishment or a healthcare provider within 60 days of the cause of action
upon which the process of investigation starts and an opportunity of being
heard granted to the healthcare establishment or the healthcare provider. The
Commission may impose a penalty in the event of the responsibility has been
determined which is imposition of the fine up to 500,000/- PKR, suspension and
revocation of License; and closure of healthcare establishment. An aggrieved
party from the decision of commission can file appeal before the Court of the
Sessions for redressal. Although the judges are not usually medical negligence
trained which sometimes bring the adjudication of appeal into a terrific end
results miscarriage of justice.
In the pursuance of the Section 29 of the Punjab healthcare
commission Act, 2010 and in the landmark case of Dr. Nafeesa[5]
the The Honorable High Court of Lahore has discussed the issue in detail that
the healthcare provider can only be prosecuted and sued if the medical
negligence or the guilt has been established against the healthcare provider.
Upshot of the above, this is abundantly clear that the DPRs has
to be made more secure so the doctors and patients should be the part of a
system which shall neither exploit and expose the doctor to a constant threat
of litigation even if they are performing in there best of the abilities to
save the patients nor a patient should be deprived from a right to seek remedy
if a doctor causes any negligence or malpractice. Our collective efforts can
lead to an improved healthcare system that is just and accountable and which
protects the rights and welfare of patients.
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[1]. Halsbury’s Laws of England, Fourth
Edition, Volume 30, para 34.
[2]. The Code of Hummarabi, sundry Enactments,
Chapter Two, accessed
on 06-08-2023 can be reached at: https://wwnorton.com/college/history/ralph/workbook/ralprs2.htm
[3]. Pakistan Medical Commission Act, 2022:
Pakistan Medical Commission (Enforcement) Regulations, 2021; Punjab Health-care
Commission Act, 2010; Punjab Healthcare Commission (Complaint Management
System) 2014; Sindh Health-care Commission Act,. 2013; Sindh Health-care
Commission Regulations, 2017 Part IX; The Khyber Pakhtunkhwa Health Care
Commission Act, 2015. Regulations of Procedure of the Khyber Pakhtunkhwa Health
Care Commission, 2016, Chapter 3, Baluchistan Health-care Commission Act, 2019;
The Injured Persons (Medical Aid) Act, 2004; Islamabad Injured Persons
Compulsory Treatment Act, 2021; Sindh Injured Persons Compulsory Medical Treatment
(Amal Umer) Act, 2019.
[4]. Bolam v. Friern Hospital Management
Committee, [1957] I WLR 583.
[5]. Lady Doctor Nafeesa Saleem etc. Vs
Justice of Peace and Others, PLD 2022 Lahore Pg.18.