Medical negligence is in the news again: this time because of a fight between public sector doctors against one of the government’s own advisors, Dr. Catherine Gaud. Also, there is the case of Sweta and Vicky Ram who lost their baby in Victoria Hospital and filed a police complaint yesterday. .

The scale of the problem

Finding out exactly how big of a problem medical negligence is in the public health system is an issue. The reason for that is that within the public health system, nobody seems to be keeping track of it. The National Audit Report for 2018-19 pointed out that the health ministry had no system to record and track reported incidents of medical negligence and malpractice within the public health system. In the absence of such a system, the extent of “medical malpractice, public complaints, medical near misses, errors, adverse events and litigation was not known”.

But there is one indicator of the scale of the problem: the number of files for claims of medical negligence at the health ministry. According to that same audit report, by the end of June 2019, out of 230 files for alleged medical negligence at the ministry, the audit report looked at 86 of them. And out of them, just 63 had claims totalling Rs 530 million and were still in process. “Total estimated contingent liabilities arising from the litigations may amount to some Rs1 billion,” the report read. Just what is happening in all these cases, nobody knows. According to the report once again, the ministry did not keep any record of these cases, their status or what happened in the cases that did manage to make their way to court. “I would be very cautious about using such numbers,” ex-health minister Lormus Bundhoo tells l’express, “claims are just claims, the question is how many of these compensation claims actually led to pay-outs?”

The negligence debate

Medical negligence is in the spotlight. In the first instance because of the offensive by the Government Medical and Dental Officers Association, grouping together specialists and other medical staff employed by the Ministry of Health against government advisor Dr. Catherine Gaud. In a missive on April 9, the association accuses Dr. Gaud of making “gratuitous” and “defamatory” allegations in an interview where she warned that a “not-insignificant” proportion of hospital staff were not following proper health protocols. The association has raised the spectre of taking their fight against Dr. Gaud to the courts. The second comes from the case of Sweta and Vicky Ram who lost their baby in Victoria Hospital and filed a police complaint yesterday. The problem with the association’s case against Dr. Gaud is that medical negligence within the public health system is a far bigger problem that just what Dr. Gaud has brought up.

Why it is hard to prove medical negligence cases?

There is a reason for Bundhoo’s question. The fact is, despite there being no dearth of allegations of medical negligence within the public health system, proving it is an uphill task.

Here is the circuitous route that a medical negligence claim against a public health institution takes: when a case comes to light potentially involving medical negligence, the superintendent of a hospital makes out a report to the health ministry (technically, the employer of all the just over a thousand doctors within the public health system). From there, the health ministry starts its own internal enquiry, involving two or three doctors from other public hospitals to look into the case. “Asking a doctor from another hospital, but still within the same system and with the same employer, to look into allegations on their own colleagues, how impartial can such a process be?” asks Bundhoo. The perception, Dr. Satish Boolell, one of the country’s top forensic experts says, “is that the health ministry looks to play down possible allegations of medical negligence”.

Supposing there is some meat to the allegations, the file is then sent to the Medical Council, an elected body to uphold medical standards. The Council is supposed then to have its own look into the case. But the council is not as independent as it appears. Five of its members are non-doctors handpicked by the health ministry, the director of health services, a representative of the State Law Office and the Prime Minister’s Office. “Medical Council elections themselves can look more like village council elections at times,” argues Boolell, “but the health ministry is also a part of that, so the ministry has some influence at this stage of the enquiry as well.”

If it is a private sector doctor, then the council decides on what must be done next, but for a doctor in the public sector, the file is sent back to the government. Even in cases where medical negligence has been proven, there is no guarantee of action. The 2018-19 audit report cited the case of a doctor who in 2013 was found to warrant disciplinary action and referred the case to the health ministry and the Medical Council. In 2018, the Medical Council finally decided that the doctor was indeed guilty for breaching the code of doctors and sent the case back to the health ministry. Surprisingly, the report noted, “after several delays, the MOH in 2019 administratively decided to set aside the case despite that guilt was established by the MC, and the Supreme Court had ordered disciplinary action. It is noted that the view of the Attorney-General’s Office was not sought.”

For those looking to avoid the health ministry’s bureaucracy and go directly to court, things are not much easier. There are a number of difficulties in such cases, explains Boolell, who also advises law firms in medical negligence cases: “Justice is extremely slow, such cases take years during which time witnesses either die or experts move from one place to another,” he explains.“Usually it’s the more senior lawyers who are experienced enough to handle the technicalities of medical negligence cases and that costs a lot of money. Fighting a medical negligence case in court is an expensive exercise.” Another reason why it is so difficult, Boolell argues, is that the medical profession is still a bit of a “gentleman’s club”; “you don’t get doctors willing to testify against one another; in some cases I have had to advise people that they had to bring in experts from abroad to testify, either through videoconferencing or flying them to Mauritius, which just adds to the cost and difficulty of such cases.”

Unsurprisingly, thanks to all these hurdles, the only case of a medical professional being held criminally responsible for medical negligence happened as late as 2019, where a gynaecologist was accused of cutting the abdominal aorta of a patient during a procedure, leading to her death. How long did the case take get settled? The operation was done back in May 2005!

Where does it happen most often?

“When we talk of medical negligence, there are two types we have to keep in mind; one is by doctors and one by other types of services such as the bedsheets changed regularly enough, the quality of medicines and equipment or is the food being given appropriate,” says Bundhoo. Take the recent polemic around dialysis patients, for example. Covid-19 hit those undergoing kidney treatment. But it did so in a system that was already riddled with problems.

Once again, let’s see another the National Audit Office report, this time of 2019-2020. The report pointed out that the public health system spent Rs 550 million to treat some 1,400 dialysis patients in public health institutions. Many of these patients, the report pointed out, “were still undergoing dialysis with central line catheters as vascular access rather than fistula. The latter being generally less prone to infections upon prolonged use”. The report also noted that 60 percent of dialysis machines being used were between 13 and 19 years old, whereas the normal lifetime of such machines ranges between 10 to 12 years.

“Most cases are due to simple incompetence,”  laments Boolell hinting at a watering down of standards or hiring doctors within the public services, “the rules of the medical council keep changing and now we have a profusion of ‘specialists’ qualified from all over the world. In the past it was the rule that you had to be allowed to practice in the country you got your training in before being recognized as a specialist in Mauritius, but now, apply the right pressure and you can get in”.

The number of medical doctors has indeed seen some growth. In 2016, according to government figures, there was a doctor for every 456 people in the country. By 2020, there was a doctor working for every 367 people. Boolell hints that there is a class dimension to this problem. “The poorer a patient is, the more there is the risk of  lack of care, or being kept fasting or being left dehydrated for too long,”  he adds. He recalls a case that was referred to him as a forensic specialist. A man admitted in a public hospital with a fractured left arm stayed in hospital for four weeks. All throughout that time, the plaster around that arm was not being tended to or changed; so doctors had no idea of the gangrene that was developing underneath. In the end, the man died. With no relatives to press a claim for medical negligence against the hospital or the doctors involved, the case went largely unnoticed.

Another issue is what he terms ‘defensive medicine’ where doctors fearing negligence or malpractice charges divert hospital resources such as unnecessary X-rays and CT scans to cover their own cases. “It all just slows everything down”, argues Boolell. Here is another case referred to in his 2016 book Forensics in Paradise regarding another common complaint: swabs and instruments left inside bodies leading to infections and death: a middle-aged man in Victoria hospital was brought in for an autopsy after undergoing surgery in the public hospital; he underwent another at a private facility. After that, his condition became worse. A second surgery by the private doctor found a forgotten swab in the body and removed it. But the septicaemic shock was too far gone and the patient died. Both the body and the swab ended up on Boolell’s forensic table. The swab it turned out was being used at the private clinic. One doctor was trying to pass the buck onto another. There was no follow-up on the case. What makes the public health system particularly susceptible to negligence, according to Bundhoo, “is that many specialists work in both the public and private health systems; in the public hospital they can see up to 50 patients in two hours, whereas in the private clinic the same doctor would space appointments 15 minutes apart, so a maximum of eight patients in those same two hours”.

According to Boolell, the scale of medical negligence might actually be under-reported within the health system. “In other countries, any death within an institutional setting is automatically followed by an autopsy to rule out negligence or institutional fault. In Mauritius, however, in most cases, simple medical certificates are drafted.” This particular problem was brought to the fore in the case of Dr. Nesha Soobhug in November last year after she had ascribed a child’s death in a medical certificate she came up with to natural causes when the evidence clearly pointed in another direction. Given this problem, Boolell says every month he gets at least five requests to conduct private autopsies, “a lot of them are stillborn babies and a lot of the cases involve gynaecologists and paediatricians”.

Aside from all these issues, the problem of medical negligence is difficult to weed out of the public health system simply because it is not an effective way to keep bad apples from maturing within the system. Here is the government’s own National Audit Report (2018-2019) once again: the health ministry keeps no records of doctors investigated by the Medical Council, nor does it keep records of disciplinary actions taken against doctors within the public health sector. Both of which, the report argued, are important when deciding which doctors should climb the rungs within the public health service. And by implication which should be weeded out for negligence. Clearly, the problem of negligence within the public health system is a much more deeply-rooted problem than the simple headlines we are seeing today.