As with the development of medical science, there have being cures to a number of diseases which were previously known to be dangerous and fetal. Doctors, hospitals and health care professionals are expected to have certain standards of care, while providing healthcare to the Citizens . There are certain ethics, that a Healthcare professionals are supposed to follow. They are not liable every time for the harms or injury that patients suffer. From local news papers, televisions we hear and see lot of complaints regarding medical negligence and medical malpractice,
Medical malpractice occurs when a Healthcare professional, a doctor or a Hospital is responsible for the injury or harm experienced by a patient due to negligence or omission of duty of care by Health care professionals . This harm could be due to misdiagnosis, wrongful treatment, aftercare or it could also be due to the negligence of hospital management. There are number of factures to be considered when deciding an act as malpractice. Firstly there should be a failure to provide a a proper standard of care. When the doctor starts treating a patient, there is a duty of care towards the patient. To provide best care which is available at the moment. Secondly there must be a breach of that duty, like if an injury or harm is a result of negligence. but if there is no harm or injury to the patient, but if the patient feels that the Healthcare professional was negligent in providing care, than there is no claim. Thirdly causation, that is where the patient have to prove that the injury they sustained was caused by a medical professionals negligence that did not meet the acceptable standard of care. A claim to be there patient must prove there had been negligence, and due to that negligence patient have received harm or injury. Fourthly remoteness of damage, that is the damage must occur in a foreseeable manner. Therefore rules and regulations are made follow while providing healthcare to the citizens. This paper will mostly focus on healthcare professional act (13/2015). In this I will be highlighting the areas which should be, but are missing to provide and regulate healthcare professionals.
Medical negligence related acts in Maldives
In Maldives so far only two acts has been passed relating to health care professionals. That is health service act (29/2015) and Health care professional act (13/2015)
Under Section 27 of healthcare professional act (13/2015 ) a person working in healthcare professional must provide, care with honestly and faithfulness, they should provide healthcare in a way that it does not cause intentional negligent or harm to other, should provide care without discrimination and should maintain confidentiality information received during the cause of the work. The are required to make professional decisions in a way that portrays their profession and they should be transparent in providing information and conduct awareness of the patient and their family in order for them to lead a healthy lifestyle.
Different councils are established under healthcare professional act ( 13/2015) like Maldives medical and dental council established under section 29 0f the act. Maldives nursing and midwifery council established under section 35 of the act. And Maldives allied health council established under section 41 of the act.
Maldives medical and dental council consist of total 9 members. 3 medical practitioners, 1 dental practitioner, one appointed by minister, a healthcare skilled professional who is neither a medical or a dental practitioner, a trainer who is trained in the medical field with a work experience of minimum 5 years, a practicing lawyer with minimum 5 years of experience and a member from civil society. Among these 9 members president or vice president of the council is elected. President or vice president of the council must me member who is a medical practitioner or a dental practitioner.
Councils established from the act are given the powers to make guidelines and to take necessary actions if needed. Section 33 (h) of health care professional Act determines the guidelines for the performance appraisal of medical practitioners and dental practitioners and to identify review and enforce methods to improve the quality of their work, and to assess them regularly. Under Section (i) investigates and take action against medical practitioners and dental practitioner for act of malpractices that contradicts the established professional and ethical standards. These councils has the power to form investigation committees.
Though there are many complaints regarding medical malpractice and negligence v few cases are being proved as negligent. The main reason for this is that it is difficult to prove the causation. If someone wants to file a case they can file it in Ministry of Health or Human Rights Commission of Maldives, directly to the courts or can file the complaints to the respected healthcare company.
Under the health service act every healthcare institute or hospital should have a facilities to investigate complaints against them.
Medical Negligence and Malpractice cases in Maldives
Like other countries Maldives is of no exception. From local news papers, social media posts we often see complaints regarding medical malpractice and negligencebut so far only 3 cases have been reported to court within that two cases have been dealt with.
The Case where criminal charges brought against two nurses
In April 2009 criminal court found two Indian nurses negligence in relation to the death of a women in labour in ADK Hospital. They were charged with disobedience under article 88 of the penal code.
Chief judge of criminal court Abdulla Mohamed said in his verdict that the lady (shaheen) and her baby were not accorded the care necessary for a person in her condition, the evidence presented in the court proved that the nurses had neglected their responsibilities in treating her baby. The nurses were therefore sentenced four months in house arrest according to article 88(a) of the penal code. The doctors who provided testimonies regarding this case said that the exact cause of death is unknown and she was not treated professionally. Though criminal charges are brought against the nurses, however no medical negligence case against ADK being brought that time even though ADK could have held vicariously liable for the negligence of their employees.
Ongoing supreme court case
The ongoing supreme court case regarding medical negligence. in this case father blames medical negligence after fever treatment leaves daughter deaf . father claims his daughter lost her hearing after she was prescribed an overdose of antibiotics (Gentamicin an antibiotic used to treat many types of bacterial infections)for a fever at Thinadhoo Regional Hospital in Gaafu Dhaalu Atoll. The specialist then examined the case very thoroughly and said the cause of her deafness was an overdose of Genamicin. Gentamicin should be given only after measuring the weight of the child but according to the father, the doctor at Thinadhoo hospital did not check his daughters weight. He claims that doctor is negligent by not making them aware about the side effects of gentamicin. in2009 from civil court it was held that the doctor was not negligent, there is not enough evidence to prove. Father said that the hospital management had forge documents to hide their fault. When this case was appealed in high court it was held that at times when gentamicin is given correctly there is a chance that 17% of people, because of their gens might developed a a side effect to the medicine. Now the case has been appealed in supremecourt. When we look it to this case if the hospital management had forge documents to hide their fault, there should be punishment which should cover under the law. But the health care professional act does not cover this part. But it does cover forging documents when making registration.
Case where medical staffs were forced to decapitate a baby during labour to save the mother.
According to the statement given by IGMH, the babys head had to be removed after its shoulders became stuck and baby died during delivery, risking the life of the mother. So the doctors were left with no choice other than decapitate the baby. The hospital came under pressure, when there was public concern as to why the hospital had not performed an earlier cesarean section as it was previously understood the baby was large and mother had been admitted to IGMH after doctors in Thaa Atoll and Laamu Atoll hospitals advised mother to do so because of the size of the baby and the mothers high blood pressure. But because of the causation it was not been proved that there had been any negligence from doctors and hospital.
In 2016, there was a case from kulkudhufushi regional hospital where a 33 year old mother bled to death following a botched Caesarean it was found that the doctor who operated the mother was not a gynecologist after doing and assessment the doctor was sent back to his country he was allowed to work till the end of his contact.
Since most of the hospitals are government hospitals Health professionals are rarely prosecuted for medical negligence. there was a case in 2014 where An Indian lab technician was was balmed for the transfusion of HIV positive blood to a Maldivian patient was held for months in police custody and deported in 2015
Regulating system of Medical negligence in Maldives and other countries
In most of the countries compensation for medical negligence is based either fault based compensation model or no-fault compensation model. In fault based compensation model the injured patient must take legal action to prove duty of care, injury or half cause due to breach of duty of care, causation and negligence. Where as in no-fault compensation based system an expert panel will assess whether the injury has been cause by due to medical negligence of health care professional. In this model the patient does not have to prove negligence in order to be eligible for compensation. In this model of compensation, compensations are obtained through certain procedures and acts, even though the negligence not done by the healthcare professionals.
Medical negligence related Acts in Maldives
As I have mentioned earlier so far there is only two acts relating to this area in Maldives. That is the health service act (29/2015) and the health care professional act (13/2015).
Health service act, section 24 provides commissioner of quality assurance under this section it allows inspection the work place to regulate safety and security standards to improve the standards of healthcare professionals in providing best care. Under this section it says there should be rules and regulation made. But till now no regulations had been made. Regulations provide a lot of details within the statutory structure that has been created by the statute, If the regulations are not made as directed in the acts there is a chance of lapsing of bills.
Under Section 29 of health service act (29/2015 ) provides health care professionals must provide informations about the disease and explain patients the condition of their health, the facilities which are available from here and if not those which are available from aboard details. Moreover under this section it allows health professionals to explain patients the complications which might arise if he/ she withdraw from the treatment and also its upto the patient to go further with the treatments.
Under section 45 of the act does provide patients to file a complaint if they feels there is a harm or injury caused due to the negligence of that respective place or hospital. It also requires healthcare companies to have a system that they can investigate if any complaint is reported against them . once the matter is being investigated by that company they are required to give their final decision. Once the decision is declared, and if the patient feels the decision is biased or if he or she is not happy with the decision the patient can lodge a complain against that healthcare company or doctor, with in 30 days in ministry of health. When a complaint is lodge in ministry of health, within 30 days they have to investigate the matter and should provide an answer. If they are unable to investigate the matter and provide the answer within 30 days they have to notify the patient about it.
Under section 70 of this act, those who are not following the act or those who are found breach of the act there is a penalty of 10,000-100,000 ruffiyaa.
By this we can say that there are some regulations made to minimize medical malpractices, and to provide proper and best care towards patient and to improve the standards of healthcare.
When we look into the health professional act (13/2015) under section 27 of the act, Health care Professionals should provide care with honesty, with faithfulness, they are required to maintain confidentiality of the information received during the course of the work and in addition to this their conduct should be in a way that upholds professional and ethical standards of the recipient, they also should be transparent in providing information.
As we can see this act has narrowed down, it does not include anything about medical negligence or malpractices. Moreover it focus in making councils and these councils have the power to investigate and to make decisions.
Does Maldives need a Medical Negligence Law
Even if there is no bill passed as medical negligence law there should be a way to make the negligent person responsible and a way to compensate the loss or injury one faces.
There are many challenges faced because of not proper regulations. There are no boundaries or authorities to supervise medical negligence. When something like medical negligence complaints comes up most of the times it is difficult to dealt with. When passing such a law a lot of things has to be considered, firstly the health system has to be improved, low budget difficulties to be considered. Without considering any of this if a bill like medical negligence is passed than there is a risk that if every time the doctor has to give compensation, medical system might go into a defensive medicine. For example if a doctor finds a slight complication, he might not want to deal with that patient and might refer that patient to another doctor. He might also refer to another one, this might go on like this causing financial difficulty and inconvenience to the citizen and the government as well.
According to experts in this field, with less professional in the system the most convenient mode for Maldives is no fault compensation mode. Because in this model compensation is given and person accused is held responsible
Though we see number of medical negligence complains there are no proper rules and regulations made. We can see the health care professional act (13/2015) it does not have an area which covers medical negligence malpractice. The whole act has been narrowed down much. It appears more like an out like of health profession. It mostly focus on making councils and the powers given to the council. These councils have power to take actions for malpractices and negligence. The health service act (29/2015) somehow regulates healthcare profession but under that act there need to be more regulations made which the authorities had failed to do. as it is difficult and risky to bring a bill as medical negligence act it is better to incorporate a chapter in health care professional act. to compensate the victims and to regulate healthcare system .because having lack of precedents ,and regulations on dealing with medical negligence in Maldives the area of the law needs a reform.