WE see reports about medical negligence in the media, but hardly see any individual being punished under the law owing to several legal and administrative issues, although, unlike other professions, medical negligence can be fatal.

Clinical negligence can be remedied under civil liability, criminal prosecution and disciplinary action by the regulatory body, which today is the Pakistan Medical Commission (PMC), or the provincial healthcare commissions established after the 18th amendment.

A civil action can be initiated at a consumer court or a high court to claim damages for the losses suffered owing to negligent healthcare services. To prove one`s negligence claim, the victim is required to prove, first, that the doctor owed him a duty of care; second, the doctor breached that duty; and, third, that the breach resulted in damage/injury.

Itiseasy to prove the Erstofthis three-stage liability test. However, the second and third stages are where most negligence claims fail and doctors escape liability. It is practically impossible for a layman to prove with scientific evidence as to what the expected standards of care are, how a doctor deviated from that expected standard, and how it caused harm.

In civil litigation, a litigant has the right to acquire all information from the opponent. However, most patients are not given sufficient information by the doctors or hospitals after a case goes wrong.

Patients in routine medical practice are never told about the medical condition they were in, what possible options or treatments they had, whether the healthcare service providers had the required equipment and expertise, and what drugs were administered and why.

The provincial healthcare commissions have been established to investigate negligent healthcare service providers.

The Sindh Healthcare Commission Act (SHA) 2013 established a commission to improve the quality of healthcare and ban quackeryin the province.

According to its section 19, healthcare service providers may be held guilty of negligence under the Act if they or any of their employees did not provide service at the minimum standard prescribed by the government, or provided services requiring competence and skills that they or their employees did not possess.

The same Act made proviso to the definition by excluding recognised and known surgical complications of treatments from the definition of medical negligence. Moreover, section 29 of the same Act bars suits, prosecution or other legal proceedings related to provision of healthcare against healthcare service providers except under the SH A 2013.

The SHA 2013 provides an extremely vague and restrictive definition of medicalnegligence based on a subjective test. It is the government that would prescribe the standards of delivery, and a healthcare service provider is required to exercise competence and skills with minimum service delivery standards so prescribed. On the other hand, most countries, including the United Kingdom, use objective tests for determining medical negligence.

Thus, the healthcare commission is not bothered by the slip of a surgeon`s knife which severs a patient`s spinal cord and renders him permanently paralysed, or by surgeons performing surgeries relying on the reports of laboratories of their choice which offer them monetary benefits irrespective of their credentials, or by physicians prescribing excessive medications to meet sales targets set by a pharmaceutical company, or by unwanted caesarean delivery which leads to permanent complications for the child and the mother.

The relief under SHA is completely administrative; the healthcare commission can revoke licence or impose a nominal fine on the negligent doctor if a written complaint is made. This provides negligentdoctors an escape route, depriving the aggrieved persons any opportunity of judicial adjudication and compensation for the injuries. It only created inconsistency in the laws. Our legal, administrative and judicial systems are too fragile to hold negligent healthcare service providers accountable for these practices. Thus, it is not just the law that needs to be improved, but its proper enforcement through an easily accessible, speedy and fair judicial system is what is the need of the hour.

Barrister Babar Mushtaque Karachi