Celebrations are on to usher in the New Year in insouciant style, sans any lingering concerns about that odd bomb or two which might have been a factor in past celebrations. It may perhaps be spoiling the fun therefore to dwell awhile on the worrying incidents of high medical negligence that December 2002 has particularly seen reported throughout the country. However, the incidents are striking in themselves to arouse a high measure of concern despite the revelries greeting the close of this highly ambiguous year.

This week alone, we have the report of an appalling incident at Dehiaththakandiya hospital where a two-year-old girl was injected Methyl Alcohol which had been prescribed for external application. She had been admitted to the Polonnaruwa hospital and later transferred to the Lady Ridgeway Hospital but even after being discharged, could not talk and walk normally. A complaint had been lodged with the police by the child's father. The Dehiaththakandiya incident is not the only incident where hospitals have been found to fall short of the due standard of care.

Two other incidents have been the focus of public attention recently, particularly when a pregnant woman died at a leading private maternity hospital in Colombo when she was reportedly pushed out of the trolley in which she was being taken to the labour room. No less grisly in its impact is another report of medical negligence resulting in the amputation of a leg of a patient who had been taken there following an accident. In both these cases, the victims have gone to court.

The fact that legal action is being pursued in these cases is fairly uncommon. Which parent, one may ask, has the financial or the emotional reserves to carry through medical negligence suits to their conclusion? Suffice to say that such individuals will be few and far between in a country where ordinary people are finding it difficult if not impossible to make ends meet with regard to ordinary living costs. What is, however, highly problematic is the manner in which these cases of medical negligence, which are, by the way, only samples of those reported, are regarded or rather, disregarded by this country's medical professionals and their premier disciplinary body. We have yet to see concerns being expressed or inquiries initiated into these incidents. The medical profession, like the legal profession is a jealously guarded fraternity and does not easily admit to mistakes. Rue those therefore, who are unfortunate enough to get entangled in the callousness that often passes for professional practice in the field of law or medicine.

As far as medical negligence is concerned, we have had a particularly notable precedent, that at that time, was hoped would lead to more rigorous standards of care among medical professionals in this country. Eight years have now passed since the parents of a four-year-old child, Suhani Arsecularatne sued one of the leading paediatricians in Sri Lanka, Professor Priyani Soysa, following the child's death. We had three judgements of the High Court, the Court of Appeal and the Supreme Court, agreeing on some aspects of the case and disagreeing on others but all commonly containing basic standards of care that a medical professional should observe when a patient is entrusted to his or her care.

As the Supreme Court was careful to point out for example, the duty of care laid on every medical (or nursing) professional is not a warranty of a perfect result by any medical professional. Thus, misdiagnosis or non-diagnosis of a disease by itself does not amount to negligence. However, the standard expected of him or her will be that which may reasonably be expected, having regard to the general level of skill in the profession or class to which the professional belongs. In judging this standard, the conduct of his or her peers becomes relevant but by no means, conclusive of the matter. The expected standard of reasonable care is what the Court may decide and needless to say, this standard will be demanded of any professional who offers his or her services to the public irrespective of whether fees have been charged for the professional services.

From this point, two questions become central to the debate. Firstly, was the professional concerned negligent in that his or her conduct fell short of the required standard of care expected? In other words, was there a failure to properly attend on the patient? Secondly, did this negligence cause or materially contribute to the deterioration and death of the child? In other words, if the death would have occurred in any event, unconnected with the breach of duty in question, the case against her would fall.

The Court asked itself the question as to whether the death of the child was necessarily a part of the nature of the disease, which was never preventable at any stage and with an inevitable fatal outcome? This question had, in fact been answered in the affirmative in the lower courts. Given this actuality, and after consideration of relevant case law, it was held that a mere "possibility" that Suhani's death could have been averted if a correct diagnosis had been made earlier would not do. There should be a probability of such a happening and in its absence, the defendant could not be held responsible for the ultimate death of the child.

In taking the latter approach, not without considerable controversy, the Supreme Court differed with the Court of Appeal, that

"The ultimate fate of the child is irrelevant in an examination into the actions and/or omissions of the professional who treated her. Negligence, if admitted in law, is a feature of the present or the past. A doctor is expected to treat the child to the best of his or her ability oblivious of what is to take place in the future. An extended peek into the future with the knowledge of medical science as it exists in the present, cannot be used as a weapon to ward off the evil effects of our present or past actions."

Despite these judicial divergences (to be expected given the nature of the case before court), the decision in Arsecularatne vs Soysa served an important purpose in affirming that professionals could be held accountable in law if breach of a specific duty of care laid on them results in actual harm to any person. However, the actual impact of the judgement on standards of care presently being observed in state hospitals in this country has been minimal. We need to see greater concern being shown by professional medical bodies on these issues in the coming year.

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