24th December 2000

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Economy ailing but few complain

By Nirupama Subramaniam

COLOMBO, Sri Lanka's economy is ailing, so everyone is wearing sackcloth and ashes and is on a diet of bread and water, right? Wrong.

For sheer living it up, the Sri Lankan capital takes the cake. The rupee has tumbled against the dollar, prices are high, but if the cost of living is pinching anyone, they do not live here perhaps.

While the Government is out on the prowl in the money market, borrowing heavily to pay off oil bills and prop up its escalated defence spending, Christmas-time revellers are packing the streets, malls, restaurants and nightclubs, with some outlets offering late shopping hours to take in the demand.

"We are not complaining," said Ms. Otara Chandiram, owner of Odel, Sri Lanka's biggest clothing retailer, that uses the country's export garments manufacturing base to stock world designer labels at throwaway prices. Though exact numbers were not immediately available, sales this festive season had already outstripped last year's performance for the same period, she said.

The buying spree is not confined to clothes. Thirty-one new Volkswagen Beetles, not exactly a snip at Rs. 1.9 million each, were snapped up from the dealer even before the car was officially launched here last month.

The austerity drive launched by the Government earlier this year to offset spending on the war seemed but a distant memory as members of parliament, new and old, queued up for their duty-free car import permits.

The main opposition United National Party (UNP) is campaigning against the Government's handling of the economy. Its leader, Mr. Ranil Wickremesinghe, forbade all but first-time MPs of his party from collecting the car permits.

A few UNP parliamentarians abandoned their plush vehicles a couple of days ago and rode to work on bicycles to protest against high fuel prices. Earlier, they had arrived at Parliament in bullock carts.

But while the high cost of living has definitely crippled the lifestyles of the salaried and further impoverished the poor, it seems to have bypassed many in the capital. Every evening, families flock to a multi-lane bowling alley to test their skills for as much as Rs. 275 a game per head, and later dine at one of the eateries offering cuisines from all over the world.

For the more deep-pocketed, five-star hotels are offering New Year eve extravaganzas on a book-now-to-avoid- disappointment- later basis. The Hilton, for instance, will set customers back by Rs. 9,000 a couple on December 31 for dancing in its ballroom, and by Rs. 5,000 per head for a special meal.

One explanation given for the high spending power of a section of Sri Lankans even in these bleak times is ironically, the war economy. While the defence expenditure is a nightmare for planners, it has created massive wealth for a section of the people, and pushed up the lifestyles of even those who are on its fringes.

Sri Lanka's economic growth in 2000 is projected to touch a reasonable 6.3 per cent by the year end, and analysts reckon that while the main factors for this were garment and tea exports, some part of it can also be traced to the war economy.

Inward remittances by the army of Sri Lankan maids and other workers abroad have helped even the rural poor cushion themselves against inflation, and keep their purchasing power from falling drastically. - Hindu

Focus on Rights

Lifting the veil of professional invincibility

By Kishali Pinto Jayawardene

If one stands back and takes a long and hard look at the judgement of the Supreme Court delivered in the middle of this month in the Arsecularatne vs Soysa case, it isolates certain interesting questions. Fundamental to the whole is the standard of care that a medical professional should observe when a patient is entrusted to his or her care. The Court, in the judgement of Dheeraratne J, (with whom Bandaranayake J and Ameer Ismail J agreed), is careful to point out that this duty of care is not a warranty of a perfect result by any medical professional.

Thus, mis-diagnosis 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 Prof. Priyani Soysa negligent in that her conduct fell short of the required standard of care expected of her? In other words, was there a failure to properly attend on Suhani, a four-year-old child entrusted to her care and was there a failure to properly investigate Suhani's illness?

Secondly, did this negligence on the part of Prof. Soysa 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 Prof. Soysa's breach of duty, the case against her would fall.

In considering these two very distinct questions, the Court had before it a well traversed chronology of events. Suhani Arsecularatne had been taken for treatment to Prof. Soysa on the 18th of April 1992. On her advice, the child was admitted to the Nawaloka Hospital, was diagnosed with having rheumatic chorea and treated by her for almost a month. As her condition deteriorated, her father, a senior state legal officer, changed doctors on the 20th of May, consequent to which a CT scan was ordered and Suhani was diagnosed as having brain stem glioma.

At this stage, she was taken abroad for treatment but was not operated on. She was brought back to the country and died on the 19th of June. Two months later, her father wrote to the then President regarding Prof. Soysa's negligence and incompetence and arguing that lapses on Prof. Soysa's part in treating the child committed to her care, directly resulted in her death. The following year he went to court.

In the opinion of Colombo District Judge Mahanama Tillekeratne, before whom the matter first came in 1994, the case could not have been clearer. Prof. Soysa had been demonstrably negligent. More so, her "arrogance, indifference and intolerance", described by the District Judge in somewhat pungent terms, was said to come out clearly during the evidence. She made a fatal misdiagnosis, which could have been prevented if she had shown the child more care and attention.

It was against this judgment that Prof. Soysa came on appeal in 1998, claiming that the District Court had erred. She had not been judged fairly and according to current medical standards, as indicated by medical experts who testified on her behalf during the trial. Their evidence clearly showed that she had not been negligent. She also argued that the District Judge had failed to approach the case with the necessary degree of objectivity and detachment. He had showed obvious sympathy for Arsecularatne while she had been treated cavalierly by him, his displeasure being manifest at her professional conduct and certain traits of her personality as inferred by him.

The Court of Appeal, however, agreed with the finding of the District Judge that Prof. Soysa had been negligent. The Appeal Court focused on what was categorised as crucial professional lapses on the part of Prof. Priyani Soysa. She had failed to take a proper history of the patient and to record the same. She had failed to properly consult and follow the advice of Dr. J.B. Peiris, who was a neurologist when the disease was clearly of a neurological nature. She had failed to do necessary tests to confirm or rebut her initial diagnosis, which was in any case only a tentative diagnosis.

The ultimate cause of death was brain stem glioma (a tumour in the brain) which was discovered after her father switched doctors towards the end of May and Prof. Lamabadasuriya who took over the care of the child, ordered a CT scan to be carried out.

This added up to the inevitable conclusion that Prof. Soysa had not shown the normal skill and diligence of a medical practitioner, let alone a specialist. Instead, she had come to a " hurried, haphazard and defective diagnosis" which had been a major contributory factor in the child's death.

In examining this sequence of events, the Supreme Court concedes that Prof. Soysa had been remiss in not making proper records of the illness and could be faulted in not properly consulting Dr. Peiris. But, the Court points out that only a possibility existed that even if such consultation was done at that time, a CT scan would have been ordered. Discussing the various symptoms of brain stem glioma, the Supreme Court did not accept the view that the child, at that time, exhibited several features inconsistent with the first diagnosis of the defendant which could bring home the charge of negligence against her on the basis that she had overlooked them.

As her condition worsened, however, she was transferred on the 20th of May to the care of Prof. Lamabadasuriya who, within four days of the transfer and upon observation of features inconsistent with brain stem glioma being simultaneously manifest, ordered the CT scan to be done.

In the opinion of the Supreme Court, Prof. Soysa's negligence was established only at that stage in not ordering the CT scan just prior to the 20th of May and not before. The Supreme Court then discusses the second and very crucial question as to whether this negligence on the part of Prof. Soysa caused or materially contributed to the deterioration and death of the child? The question is framed thus: Was the death of the child 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.

It is in this context that the Supreme Court differed most significantly from the opinion of 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."

In the ultimate analysis, what is clear is that this case has shaken and quite strongly at that, the aura of what has been categorised tongue-in-cheek by one English judge as "paternalistic benevolence" between the professional (whether a doctor, lawyer or accountant) and a member of the public.

Translated, this means that professionals in this country would now be intolerably naïve to ignore the fact that they could well be held accountable in law if breach of a specific duty of care laid on them results in actual harm to any person. Six years after this case came before the public in this country, generating a bitter divide of professional opinion, this remains its most notable result.

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