2.3.1 Informed Consent
M.J Myers identifies that informed consent is used by a medical practitioner to treat a patient under risky circumstances. Moreover, he specifies that the doctor must disclose the actual and real risk of the operation, or any other treatment or otherwise the consent given without knowing real risk is not fair at all. This kind of a scenario seems not to be the real product of the informed consent. According to him, the disclosure of real facts is a custom of the society. The majority of the society accept that the doctor should be imposed liability for violating that custom. Disclosing the real facts of the risk is related to the standard of care of the doctor, and the adoption of this is linked to the self-determination right of the patient.
In the Martin v. Lowney case it was held that the doctor has got a duty to disclose every fact and risks of the medical proceedings and the patient should have a chance to get an intelligence decision whether to proceed on or not. If the doctor is unable reveal, all the facts the doctor can be held liable for breach of that duty.
According to the Aceto v. Dougherty case if the physician hides the real situation and the risk of the treatment to the patient and the doctor is liable for any injury whether he acts negligent or not.
Alan H Crede introduces “Average qualified Surgeon” should have the ability to assume the risk and reveal the real risk of the treatment and the patient can take the decision on the basis of his recommendation.
Nijahwan points out that informed consent has been inherited from history and legislated in some statutes. He states that in Nuremberg Code 1947, Declaration of Helsinki 1964, The Belmont Report 1979, CIOMS Guidelines 1982, The Guidelines for GCP originated in International Conference on Harmonisation 1996 the concept of informed consent had been established.
Moreover, Nijahwan identifies that, the informed consent faces some challenges and issues like language barriers, religious influence, false expectations, patients’ perceptions and some other considerable issues.
In the decision of Darviris v. Petros it was discussed that, if the doctor does not estimate the actual financial cost of the treatment or therapy it is also reached amount to a medical malpractice.
In the Chatterton v. Gerson decision it was identified that the consent given by a patient may not be the real consent as the detailed procedures are not been revealed and the broad terms are not understood by the patient.
Dr. Perera says even though the comprehensive consent form is the best option to take the real consent illiteracy, the doctor patient relationship and attitudes which are paternalistically measured, and the faith towards the doctor is not given the real consent in Sri Lankan context.
Conversely, in the Castell v. De Greef case the informed consent has been held as a standard and valid defence against the medical malpractice occurred in South Africa.
Dr. Perera emphasizes that the assumption of risk by the patient or the “volenti non fit injuria” also goes hand in hand with informed consent and in those circumstances the doctor can be excluded himself from the liability. The Nigerian case Okonkwo v. Medical and Dental Practitioners Disciplinary Tribunal the doctor was not liable for breach of the duty of disclosure the risk where an aneamic patient who had been a Jehovah’s witness refused for a blood transfusion was considered to be voluntarily assumed the risk.
She furthermore takes the attention of the reader that the courts have followed the reasonable doctor’s test and a new approach called “prudent patient’s test” which stands on what a reasonable patient need to know in his position.
2.4 Litigation Against Medical practitioners in Sri Lanka
Dr. Fernando reports that until 2002 there had been only about 10 cases about medical negligence claims in Sri Lanka. Priyani Soyza case is the landmark in that history.
Dr. Perera is in the view that, the Traditional Sri Lankan does not try to file an action against a doctor as it depends on many more factors as cost, respect, unawareness etc.
Dr. Ruwanpura categorizes the patients who have been undergone a medical negligence into three. They are Compensative mode , Punitive and Deterrent Mode and Corrective Deterrent Mode .
According to Dr. Ruwanpura Sri Lankan patients have four options after facing a medical negligence.
• Complain to the Health Authorities.
• Lodge a complaint in a police station.
• Forward an affidavit to the SLMC or Human Rights Commission.
• File a Civil Action in a District Court.
According to him, the present litigation system is basically build upon the tort liability system, similarly as in the USA. He furthermore states that earlier patients had tried to file criminal cases under Criminal Procedure Code and Police Act and failed resulting another civil case. The undue arrest of doctors on medical malpractice is known to have ruled to limit by the Indian Supreme Court.
2.5 Compensation Mechanisms
2.5.1 Judicial Compensation
The judicial compensation is awarded under the tort based liability and it seems to have a lot of inconsistencies. It is basically upon the balance of probabilities.
The IMO Committee in the USA has concluded its report with the intention of “replacing tort liability with a system of patient-centered and safety focused non-judicial compensation” as per the recognized inconsistencies.
Considering the UK context, the tort based liability system is known to enrich the legal practitioners and impoverish the medical practitioners while the victims are getting a very little portion of the compensation. This is due to the high attorney fees and the duration of the case.
Dr. Ruwanpura suggests the Consumer Protection Legislation and the “No-fault Liability System” to avoid the inconsistencies in tort based litigation.
2.5.2 Consumer Protection Legislation
Singh assures that the Consumer Protection Legislation is used to compensate in medical negligence in India and in the Middle East.
According to him it is very difficult to implement in India as the government medical service is fully served freely. At the same time, it does not cover the unavoidable medical mishaps.
Anita and Madhuri has conducted their study to link the medical negligence and the consumer protection under Consumer Protection Act 1986. According to their view, the definition given for the consumer and the service is wider enough to cover the patient as a consumer and the medical service given as a service given under the act.
Nevertheless, this concept is unable to be used where the medical service given free of charge. This view was uprooted in the judgement of Indian Medical Association v. VP Shantha and Others case.
2.5.3 No-fault Liability System
Bismark identifies that in the tort based liability both patients and doctors are victims. This system has been successfully implemented in Canada and New Zealand whom considered to be the top ranked nations in humanitarian development for nearly 25 years.
This system is very efficient taking only 6-9 months to complete the process of compensation. This takes only 10 percent of a cost while the tort based liability takes 50-60 percent amount for cost of action. In New Zealand the Accident Compensation Cooperation (ACC) handles the system.
Moreover, Bismark summarizes how the system works. The system is funded by taxation and the employer levy. The patient must inform the negligence or the mishap to the ACC and the doctor in written form. The doctor must write a detailed submission to the ACC about the incident and ACC takes the necessary steps to compensate the patient adequately and introduce the necessary systematic and procedural developments to the healthcare system. No judicial intervention is made.
Dr. Ruwanpura is in the opinion that the system would help to console the patient while developing the healthcare system. He furthermore, reveals the Agrahara Medical Insurance could be restructured to reach that level.