2.1.4 Causation Between the Negligent Act and the Result
Thirumoorthy accepts that causation in medical negligence refers to the cause and result relationship between the negligent act by the defendant and the damage occurred to the plaintiff.
Moreover, he says the mechanism is to prove the balance of probabilities up to 51% or more. The causation probability is measured with the “but-for test”. It seems to be that the defendant can be held liable if his conduct is materially and significantly contributed to the final result.
Dr. Perera argues that most of the surgical and operational errors are easily identified under the “res ipsa loquitar” principle.
In the Priyani Soyza case, Dheerarathna J declared his findings that the doctor had not properly maintained the bed head ticket and ordered a CT scan, but it was not enough to prove the balance of probabilities more than one half percent and could not prove the causal nexus of the paediatrician’s negligence.
According to the decision of Hart v. Chappel case, it seems to be clarified that the test of causation was not solely applied and most of the court decisions considered that, the patient’s right to know is higher than the relaxation by the causation.
2.2 Priyani E Soyza v. Rienzi Arcekularathne case
Professor Fernando states that the cases reported on the issue of medical negligence were less than ten by that time and the most revolutionary and landmark case is against the Professor Priyani E Soyza who was a Paediatrician. He, furthermore, explains the facts and issues of the case and he notices that, the whole medical profession was shocked by the lower court and appeal court judgements and the relief and the justice was sought by the supreme court.
The plaintiff was the father of the died 4 years old child Suhani who had been misdiagnosed by the defendant as Rheumatic Chorea (RC) instead of Brain Stern Glioma (BSG), what the deceased actually had. The BSG was a fatal disease and it was considered to be prevented or postponed if it had been early diagnosed. The deceased had been attended by number of specialists in various stages of treatment, while the defendant was away from the patient. They all considered the deceased’s disease in the course of what the defendant had laid on RC. Finally, it was diagnosed as BSG and on the following day Suhani died. The plaintiff contested that the misdiagnose of the defendant had been negligence and claimed for compensation. The plaintiff had inter alia claimed for the mental shock and for the pure economic loss of the depriving of the child. The lower courts and the appeal court held the judgement in favour of the plaintiff. It was held to compensate Rs.5 000 000, and in the appeal court one judge estimated the damage as Rs.250 000.
The professor’s appeal for the Supreme court turned the case around. The case was reanalyzed considering the causal nexus of the negligence act and the death of the child. The three bench of judges; Dheerarathne J, Bandaranayake J and Ismail J held a unanimous decision that, nevertheless the guilty of negligence was accepted, the plaintiff is unable to prove the balance of probability and the causal connection between the death and the misdiagnose.
In the case of Whitehouse v Jordan Lord Denning had stated that ” We must say and say firmly in the professional man an error of judgment is not negligent.” The Supreme Court decision was mere same as the expression of Lord Denning. According the judgement, there had been three main issues and the first two had been accepted as “Yes” by all courts where the case was heard, and the third issue was not accepted by the Supreme Court, though the lower courts had done.
a. The child was suffering from a rapid developing fatal incurable tumour in an inaccessible site.
b. The death was necessary a part of the inevitable and fatal disease that she had. The Court of Appeal added that if it was early recognized could have been prevented or postponed.
c. The plaintiff is able to maintain this action against the defendant.
In the judgement Dheerarathna J has stated that misdiagnose is no diagnose, which is wrong is not a negligence. The capability of claim was re questioned.
Dheerarathna J rejected the claim for mental shock and the pure economic loss because of not having a psychiatric illness and indigent circumstances of the existing relation. Explaining the judgement Dheerarathna J stated that, as judges they were unable to change the material of law and what they only could do was to iron out the creases. The judge notably discussed about the resilient nature of the Roman Dutch Law in this judgement.
2.3 Defences to a Physician
Stone illustrates that the Bolam Test is not what is more a test, but mere a defence to the practitioner. According to the Bolitho’s case, not attending to the patient is taken as a defence arguing that the attending also does not change the result.
The general view is that the defences to Aquilian Action cannot be successfully pleaded by a medical professional. The reason is the medical negligence law especially deviates from usual negligence law as it is supposed to be proved by inherent requirements. However, Dr. Avanthi Perera identifies that the defence of contributory negligence can also be pleaded in case where the patient does not see the doctor in due time according to the advice and does not take the prescribed medicine as advised.
Kevin R. Marciano discusses some alternative defences that a medical practitioner can claim. According to him a medical practitioner can defence himself arguing at least one of the necessary elements to be proved has not been properly proved. For the instances other than gross negligence Samaritan Laws in Pennsylvania covers the doctors from a legally defined duty of care. It describes the medical profession as a service. The medical professionals are able to argue that they have attended the due standard of care.
“The Substantial minority” is also a defence that some different, uncommon treatment methods are not out of bounds and even though not significant and overwhelming some practitioners are in favour of those.
Damages and the Collateral Sources rule which pleads that the plaintiff has already paid and satisfied by the insurances, governments and other sources, so that the defendant can argue to be prevented from monetary compensation. At the same time, in Johnson v. Beane case the court held that how much the collateral sources are available the wrongdoer must pay.
Dr. Perera argues that a doctor can claim the absence of due of care because the doctor only has got a duty to rescue and in this concept, and no doctor owes a legal duty rather than a service. She says since the Sri Lankan law does not have provisions on duty of care. A doctor is considered to be a Good Samaritan who does not owe a legal duty towards the patient.
She further more describes that a doctor is able to take the defence of adherence to the accepted standard care, resource limitations. In the decision Garcia v. St Mary’s NHS Trust case, it was held that the limitations of the resources is unable to be taken by a doctor, where a minimum standard of care is provided.
In the Sri Lankan case Dabare v. Director Castle Maternity Hospital and others the deflection of the direct liability to the hospital was eligible to the doctor. In that case an infant suffered from cerebral palsy and myoclonic epilepsy due to a medical negligence and it was decided to have happened as a result of the negligence of hospital staff and delayed procedures. The court found the institutional liability of the hospital.
According to Dr. Avanthi Perera the emergency, judgement error or misdiagnose are also stand as defences to a physician.
The informed consent or the disclosure and consent is the mostly found and used defence by the doctors. It is also complicated due to the inherent weaknesses in its practice.