It is a well-established law in terms of the Constitution of Pakistan 1973 and Human Rights Act 1998, that no one, including doctors, enjoys a complete immunity. Medical negligence is an act or omission by a doctor in which the care provided was deviated from accepted standards of practice and cause injury or death to the patient. Medical Negligence comes under the category of law of tort. For the claim under the law of tort, it is important to prove three important ingredients laid in the landmark judgment in the case of (Donoghue Versus Stevenson 1932) that is, the claimant/patient was owed a duty of care by the defendant/doctor, who subsequently breached that duty of care, which resulted in foreseeable damage, and that damage was not too remote.
The usual test for negligence is the omission to do something, which a reasonable person, guided upon those considerations, which regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not. Meaning thereby that the Court will look at the act, and not the actor, consequently a junior doctor must also be judged with the standards of a competent doctor.
Discharging duty by doctor in an improper manner would constitute an act of misfeasance. In Pakistan only media has played a pivotal role in exposing the existence of malpractices by the doctors. There are alarming statistics in Pakistan regarding medical malpractices and majority of them go unreported, on a daily basis, several cases involving medical neglect on part of the doctors and hospitals are witnessed by means of defective procedure techniques, lack of competent staff, leaving instruments in abdomen, amputating the wrong foot, administration of wrong vaccines, use of expired drugs, making wrong diagnosis giving wrong treatment, administered erroneous amount of anaesthesia, failure to wear gloves, etc. In Pakistan one of the major criticisms on doctors and hospitals is that they deliberately chose not to disclose any martial risks of surgeries to patients for commercial motives. It is important for doctors – particularly young doctors – to understand that they must respect the patient’s choice, unless he/she lacked the legal capacity to decide. The patients are entitled to the information, which would enable them to take a proper part in such decisions. Under the law of negligence, a doctor is under a strict duty to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in a treatment and such duty could also be understood as a duty of care to avoid exposing a person to a risk of injury which he/she would otherwise have avoided.
It is a well-established principle of law that doctors/surgeons cannot simply shift their responsibility upon the administration of the Hospital nor can the hospital lay off its hands by throwing away the responsibility upon the doctors. The Hospitals can be vicariously liable for negligence of its staff. Hospitals may also be negligent where they have failed to adequately supervise or train their doctors, nurses or where hygiene standards have not been maintained properly.
There is a desperate need that the general public of Pakistan must understand that the medical negligence cases must not go unreported. It is obligatory upon every citizen particularly the victims of medical negligence and their families to at least write a complaint to the Disciplinary committee of Pakistan Medical and Dental Council, which is empowered under Pakistan Medical and Dental Council regulations 2002 to cancel the license of the doctors and take legal action against the doctors and hospitals involved in medical negligence. Once it has held by the Pakistan Medical and Dental Council that practitioner was guilty of negligence and professional misconduct, criminal law as well as civil law can be set into motion against him.
Additionally, Section 318 of Pakistan Penal Code 1860 provides that “Whoever, without any intention to cause death of or cause harm to, a person causes death of such person, either by mistake of, act or by mistake of fact, is said to commit Qatl-i-khata.” Whereas Section 304-A PPC 1860 specifically provides that “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Henceforth the victims of medical negligence and their families must lodge F.I.R under Section 318 and 304-A PPC1860 against the doctors and the administration of hospitals involved in medical negligence cases.
Lastly, the victims of medical negligence can also file civil suits in the competent courts for the recovery as compensation and damages under Fatal Accidents Act 1855.