CHAPTER 5-PROFESSIONAL CRIMES-178-230.pdf

8/16/2019 CHAPTER 5-PROFESSIONAL CRIMES-178-230.pdf

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CHAPTER 5

PROFESSIONAL CRIMES

Professional crimes are crimes committed by those who are trained in a specialized fieldof occupation to pursue a career as profession in that field. Profession involves an

individual creatively more in mental rather than manual labor. Examples include

physicians and surgeons, lawyers, accountants and specialists like pilots, engineers etc.

Professional crimes differ from occupational crimes in a sense that for occupational

groups relatively no formal and regular training is required to pursue a particular career.

Traders, businessmen, salesmen etc are some examples.

While presenting and analyzing the data, due to the reasons of brevity and limitation of

space, this humble work is restricted only to cover healthcare profession because of its

closeness to human life. It is obvious that medical profession has its own significance

from societal point of view because of its implications on human life and death affecting

every family and it involves something more than money. Although in functional

scenario, it pertains to a relationship of service provider and a customer but it differs in a

sense that service providing is not limited only to money like other professions but it

involves human life. The service provider (doctor) has significant control over life and

body of the customer (patient). Negligence and malpractice are the dominant causes of

complaint between a physician and the patient. Crimes of medical professionals often

reported in media include, actionable wrongs done in diagnosis of a particular illness, in

performance of a surgical procedure, in prescription of a drug and over doctoring for

financial considerations. A new type of crime of organ trade has also emerged on the

social scene where surgeons are found involved in kidney trade for financial gains

exploiting the poor. Crimes of these professionals are especially serious because theyhave considerable influence and power over their patients with absolute trust and

confidence reposed by the patient (victim) in particular and society in general. There are

stronger reasons to attribute criminal liability to physicians or surgeons than before;

because with advancement of society, hospitals and doctors are working with corporate

objectives than service to humanity. These overriding objectives saddle the professionals

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with more obligations towards their patients as cost of their services is not free to the

patients. The liability features emanating from the cases included in this humble work

include misfeasance, malfeasance, non feasance and crimes of professional privilege.

There is no law to judge the standards of conduct of a doctor except 1Code of Ethics. This

Code of Ethics is promulgated by the Pakistan Medical and Dental Council [PMDC], a

statutory body to regulate medical and dental profession in the country. This Code of

Ethics is more or less in consonance with code of ethics promulgated by world medical

and dental association. Ethical rules are similar for physicians in most countries that

follow the Hippocratic Oath. They have no formal legal force, but can be used as a

reference to provide answers to individual problems. The Hippocratic Oath emphasized

on human values of dignity and respect for human life, compassion, justice, honesty,

gratitude and sanctity. Prominent features of medical practice even today are based on

scientific and medical ethics formulated by Greek Physician Hippocrates (377-460 B.C).

He is traditionally regarded as the founder of medical ethics (Catherine, 2001 p.28 and

Davey, 2001, also see Qidwai, 2004). It is its drive to the heart of medicine that makes

the Hippocratic Oath inspiring even today (Emanual, 1990). With development of

societies and social changes now there is more emphasis on human rights, these ethics

were formalized into laws regulating the medical profession. This is more in practice in

societies where personal patient-doctor relationship has changed into consumer-service

provider relations. The Hippocratic oath is sworn by graduating medical students at more

than 60% of US medical schools, and is perhaps the most enduring medical oath of

Western civilization (Qidwai, 2004). If a physician can study the oath more explicitly,

this strengthens his dedication to the welfare of patients, and the effort will be worthwhile

(Pellegrino, 1990).

Reflections on Legal Provisions

Medical ethics are the conventional rules binding on a doctor to perform his professional

obligation. There are two provisions of law that can be operative against white-collar

1 The current code of ethics was promulgated in 2001 and is a revision of the code of ethics approved bythe Council in 1968 and was further revised by council in 1974 This code was further revised and promulgated in 2001 to comply international standards of ethics.

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professional criminals. These are civil remedies under general law of tort and criminal

liability under public law. There is a liability towards the individual that may be called as

private order of the society and is generally covered under general or special law of tort.

Apart from a civil remedy of suing a professional physician or surgeon for economic and

non economic damages under the law of tort, there is no specific law regulating the

medical malpractice to provide civil remedy to a victim in Pakistan. The general law of

torts regulates rights and obligations of citizens in a free society. A tort is defined as an

act or omission which is unauthorized by law, and independent of contract that infringes

some absolute right of another; or some qualified right of another causing damage or

some public right resulting into some substantial and particular damage to some person

beyond that which is suffered by the public generally; and gives rise to an action for

damages at the suite of the injured party (Salmond, 1987). Tort law is essentially

attributable to private individuals who commit wrong doings to other private individuals

in meeting their obligations who interact and deal with them in their mutual social role in

society.

The essence of tort law is to reallocate risks when one person has wrongfully and without

consent caused harm to another (Earnest, 1990) emphasis added. In case of professional

negligence of doctors, obligation under law of tort is created because they hold

themselves to be possessing special skills and knowledge and they are consulted by their

patients who submit to their advice while undergoing treatment. Hence, they owe a duty

to their patients to use care and due diligence and in case of failure; they are liable under

law of tort (Anoop, 2005). The criminal liability may be in addition to liability under tort

law. The law of criminal liability is laid down in Penal code. It is that sub set of public

legal system that regulates relationships between the state and citizens. There is a general

provision under Pakistan Penal Code2 to deal with professional malpractice or

negligence. Gross negligence or act of malpractice leading to injury or death of a victim

is culpable under section 318 and 319 of this code. These sections deal with offences of

qatl-i-khata (non intentional death) and maximum penalty prescribed by law is under

2 Pakistan Penal Code 1860 is a comprehensive law dealing with conduct of citizens. It was adopted fromColonial British legacy after the country got its independence in 1947. Several amendments have beenmade in original law to bring it in conformance with present day need of society.

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Islamic provision that is diyat or compensation and imprisonment for a term which may

extend to five years as tazir (punishment under state law other than Islamic punishment).

Section 318 deals with offences of qatl-i-khata. It provides that whoever without any

intention to cause the death or harm to a person, causes death of that person, either by

mistake of act or mistake of fact, is said to commit qat-i-khata. In such type of murder

charge there is lack of intention as in case of death caused by a surgeon or physician due

to negligent or incompetent handling of the patient. Here penalty is obviously lesser than

that for intentional murder where penalty is death. This provision of law is perfectly

applicable to medical malpractice where in case of deliberate act on the part of accused

person (surgeon or physician) to do one thing but because of mistake of act or of fact the

end result of such an act was different from that intended by accused person (surgeon or

physician). Elaborating provision of this section superior court has ruled that act depicts

intention of doer, who is supposed to know possible consequences of his act but doer of a

rash and negligent act shows his recklessness and indifference about its consequences

(Monthly Law Digest, 1999 p.2271).

It is worth pointing out that despite abundance of cases of deaths caused due to acts of

negligence and professional malpractice, not even a single doctor has been penalized

under the provision of any law. There are occasional cases where doctors were implicated

under the provision of law but they tend to take shelters behind peer pressures and

technicalities of law. The lax criminal justice system particularly the police adopts lenient

attitude and remains reluctant to register cases or prosecute them even if some influential

victim has succeeded to get a case registered against a doctor. For example, in a case

registered against a doctor, for causing death of a baby boy, PMA gave call to all doctors

to go on strike to pressurize the government to withdraw the case (Doctors Protest, 2005).

The Supreme Court rather had to admonish district Police Officer for delay in submission

of case to trial court in medical negligence case against a doctor. The doctor had operated

upon his lady patient in a private clinic without proper infrastructure and blood

arrangements. Both the lady and new born baby died soon after the operation due to

blood loss (Delay in Challan, 2006). When the trial somehow proceeded in the court, the

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doctors in connivance with lawyers took shelter behind technicalities of law that there

was no post mortem carried out to ascertain cause of death of the victim.

Work Scenario

To provide for a better societal outlook to examine the social scenario in which

glamorization and de-stigmatization move together, it is worthwhile to present an account

of working environment and functional infrastructure that facilitate this criminal

behavior. Provision of health care services is primary responsibility of state. The state

attempts to provide healthcare facilities through a three tier system. It includes basic

health units and rural health centers. These provide acute and ambulatory healthcare

services. Inpatient care is provided at Tehsil and District Headquarters hospitals. Tertiary

care is provided by teaching hospitals attached to District Headquarters hospitals. These

facilities often remain fund starved and except for some basic tests and medicines, the

patients are asked to arrange for the medicines and surgical accessories. During the year

2006, an amount of Rs.50.0 billion was spent by the government that comes to only

0.57% GDP and estimated $ 0.5 per capita for a population of over 170 million.

Population per doctor is 1254. Population per dentist is 20839 and population per nurse is

2671(Government of Pakistan, 2007b). There is just one specialist available to 14500

people and 320 beds available for 100,000 people (Pakistan Medical Association, 2005).

With a few exceptions, most of the healthcare facilities give deserted look where even no

qualified doctor is appointed. The health care facilities do not meet even the minimum

standards. There are no defined standards to spell out details, qualification and strength of

staff for establishing a basic health unit or rural health center. The salaries paid to the

doctors and staffs are meager and unrealistic.

The doctors working at government hospitals prefer to set up parallel facilities for their

private practice and they use their public positions to lure patients for their private

consultation. Although this private practice by government employed doctors is banned

in some cases. The career structure of doctors for promotion and progression is non

existent. There are no laws to regulate and check private practice of doctors neither

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there are any minimum standards to set up private clinics. This social milieu creates

ample opportunities for fake doctors to practice medicines and perform surgeries. These

quacks outnumber total number of qualified doctors. Rich people have possibility of

availing state of the art healthcare services and the poor pays the price of being poor.

These circumstances have transformed healthcare sector into a corporate heaven for

white collar crimes of professionals and quacks where they have fertile ground to

hoodwink their victims for financial gains. Health care insurance is an alien concept to

the society. The doctors are not required to pay any premium to cover their mistakes and

misdeed because the society is non resistant to their negligence and criminal behavior.

CRIMES OF PROFESSIONAL MALPRACTICE

Everyday news of medical malpractice hit our ears and eyes as these are highlighted by

the media. The professional physician or surgeon remains unpunished for multitude

reasons; both sociological and political. Here are some case examples hinting at

prevalence of deep rooted disease of criminal tendencies among the medical

professionals.

Omaya Shunt in the Head

Mr Umeed, a victim of professional negligence of doctors explains how he lost his wife

due to gross and culpable negligence of doctors of Khan Hospital. A lady of 38 years of

age was treated in city’s most expensive and well equipped hospital having matchlessly

advanced facilities. The lady was admitted to the hospital and was diagnosed as Acute

Lymphoid Leukamia (cancer) and was advised four doses of chemotherapy. An Omaya

shunt was fixed in her head to inject medicines for this treatment. After administering

four doses of chemotherapy, bone-marrow test revealed complete cure and the patient

was discharged with clean chit. The doctors did not remove her Omaya shunt while

discharging the patient neither the patient could point about it. This happiness and

recovery of the patient proved short lived when just after 2 months of discharge from

hospital, she experienced weakness and continuous fever. The doctors re-admitted the

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patient and diagnosed relapse of Acute Lymphoid Leukamia and advised further two

doses of chemotherapy. Trusting the doctors, the husband agreed for this treatment and

these two additional doses of chemotherapy were successfully administered. The initial

symptoms of weakness and fever did not vanish despite repeat doses. The doctors then

decided that the patient should undergo bone marrow test and it was done the next day.

At the same time doctors suddenly decided to remove Omaya shunt through a surgical

procedure without carrying out a thoughtful evaluation of her state of health. The doctors

did not bother to inform the husband and sought hurried consent from the attendant,

illiterate sister of the victim, without any information and explanation about the

procedure. When the patient was brought out of operation room she went into coma and

was continuously suffering from episodes of acute drowsiness due to excessive bleeding

in the brain caused by mishandling during the process of removing Omaya shunt. When

the husband enquired from the doctors about deteriorating state of his wife, one of the

two doctors informed him that surgical procedure was done at low level of platelet counts

of 23000 that was dangerous. He denied responsibility for this negligence and insisted

that his senior surgeon made a decision to carry out surgical procedure of removing

Omaya shunt although it was not so urgent. The senior surgeon could not satisfy except

expressing his sorrows. He proceeded to explain that if the bleeding did not stop there

was only 1% chance of her survival as there has been excessive bleeding owing to

removal of Omaya shunt. The two doctors advised the respondent to give consent for a

last ditch effort to save life as they decided to do some more surgical procedures in order

to undo the effects of bleeding. The husband had no option and agreed to this surgery. In

early morning next day, the two doctors informed the husband that her wife has already

expired before further surgery and they felt sorry for this, frankly admitting their mistake

in negligent handling of the case. Later, the husband approached the doctors to know

about cause of the death and requested them to issue formal death certificate. They

ignored his request and every time he approached them, they adopted delaying tactics.

When they were aggressively pursued, the junior doctor issued him a certificate on

ordinary chit recording ‘brain death’ as cause of death of his wife.

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In this case the death resulted due to two main causes such as incompetent handling of

the case where the doctors undertook surgical operation to remove the Omaya shunt

when the surgery was performed at a time the patient had very low level of platelet count

at 23000. Secondly the surgery itself was performed in an incompetent way, without any

life threatening emergency and without observing standard medical protocol required

even for a normal procedure. Resultantly bleeding in brain could not be stopped after

surgery. Perhaps doctors did this mistake of carrying out a surgery without an objective

assessment of the patient, to correct their earlier mistake of not removing the Omaya

shunt when the patient was discharged after administering initial doses of chemotherapy.

The doctors did not bother to give an appraisal of the patient’s health and their course of

action and associated complications to the relatives to seek their consent. To complete

the ritual, they got a hurried consent from the illiterate sister without giving sufficient

information, so it was not an informed consent by any standards. Later, when the victim

requested the hospital to provide him details of medical treatment, surgery notes and

nursing chart etc the hospital refused to provide these details stating that their protocol

does not allow them to provide medication records to the patients or their relatives.

Unfortunately, there is no law forcing the hospitals to provide the medical records

relating to the treatment of a patient. The case is more complex in case of private

hospitals.

A frustrated husband explained this outrageous treatment of the hospital in following

words:

“They are running this hospital like a corporation where patients and theirrelatives are required to pay their bills in advance like charges of a corporation.They claim to serve the humanity but they are in fact minting money from the public lured through their marketing propaganda that they have best of the

facilities at reasonable costs. The unsuspecting public frustrated with poor healthcare facilities in public sector, rush to these private hospitals but these hospitalshave converted themselves into expansive enterprises working only formaximizing their profits. The doctors at these hospitals forget all norms and ethicsof their profession and tend to protect their own class even if they work in anunprofessional manner and play with the lives of innocent people. They fullyexploit absolute faith of the patient and make use of ignorance of the public tomisguide them to fleece money. These doctors have unquestionable authority and

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there is no mechanism to check their malpractices and acts of reckless negligenceand want of care towards their professional obligations.” (Umeed Ali).

This venting of anger by the aggrieved family may seem exaggerated but everyday

happenings show it otherwise to be very close to unfortunate reality of our life. Theelectronic and print media daily project horrible stories of professional negligence of

doctors involving diagnosis of particular illness, in performance of surgical operation or

in prescription of a drug, where victim is the ignorant, unsuspecting and unaware public.

The doctors are bound to follow the code of professional ethics promulgated by Pakistan

Medical and Dental Council [PMDC]. At the time of being admitted as a member of

medical profession, a doctor takes an oath to devote his life to the service of humanity,

honor the noble traditions of medical profession (PMDC, 2001). The professional

obligation of doctor is doing of good and active promotion of good, kindness and charity.

This principle of beneficence obliges a doctor to abstain from injuring others, and help

others to further their legitimate interests by preventing or removing possible harm

(Catherine, 2000). The only exception is that such duty should not conflict with other

stronger duty such as a duty of doing justice ( Tom & James, 2001).

But in our scenario the deviant behavior of privileged class of professionals within the

scope of Code of Ethics indicates that they acted utterly in violation of their professional

liability. They failed to timely respond to the health care needs of their patient, acted

against the interests of the patient whereby they did not bother to evaluate weakening of

physical and mental condition of the patient, carried out surgical procedure without any

informed consent and finally refused to provide medial records to the patient’s relatives.

This all being against the Code of Ethics that clearly stipulates:

“The patient has right to receive information from physicians and to discuss the benefits, risks, costs of appropriate treatment alternatives, and optimal course ofaction. Patients are also entitled to obtain copies of summaries of their medicalrecords, to have their questions answered, and to receive independent additional professional opinions.” (para 10.1 of code of ethics).

These criminal acts of omission and commission are culpable wrongdoings contributing

towards the deterioration of health of poor lady. The deviant doctors went unpunished

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because there is no culture of suing the culprits unlike USA and Europe neither there is

trustworthy legal structure. The work of doctors is highly technical and only a technical

mind can understand what wrongs they do while treating their patients. There activities

remained concealed from the patients or their surrogates. The relatives of the patient are

ignorant of what ill treatment has been inflicted upon them and there is no mechanism of

professional accountability in place. A leading lawyer practicing in medical and other

torts explains this scenario in following words:

“I have come across many victims who come and discuss their sufferings at thehands of doctors. Initially they are very vocal and active against the doctors and pledge to sue them for damages. With passage of time their activism dies down.They are fearsome of lengthy court procedures and show little patience and

resilience to absorb the shocks of judicial process. They feel that after suffering atthe hands of doctors, they are entering into another trouble with the lawyers. It isvery difficult to convince them to have faith in the courts and ultimately they aregoing to get justice in the form of compensation for wrongs done to them.However, very few get convinced and as a result, culture of suing for malpracticecould not develop and the culprit doctors have no fear of accountability and theywalk out freely as if they have done no wrongs. This situation is promoting aculture of high handedness and criminality among the professional doctors andsociety at large remains the ultimate victim”. (Maqsood, personal communication,March 7, 2007).

The judicial system of the country has its own weaknesses and its credibility remains

questionable in the eyes of general public. The recent developments of ousting judges of

the superior court by the military regime to suite their own interests to stay in power have

further shaken confidence of public, fostering a culture of fear, insecurity and

shelterlessness. The government, faced with crises of illegitimacy continues to attend to

their own difficulties and have no time to work for effective legislation to regulate illegal

conduct of white-collar Professionals. In this social milieu, it is evident that when there is

no concern for accountability or fear of being caught, there are more incentives, probabilities and motivation available to the criminals. Absence of a vibrant, secure and

responsive judicial system discourages the public to raise their voice against injustice,

misdeeds and crimes against them and the society. This de-stigmatization of society

promotes glamour for criminal acts and society is forced to pay for such de-sensitized

approach towards individual sufferings. Another lawyer defended the judicial system and

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blamed incompetence of lawyers and the public for questionable credibility of judicial

system:

“Our judicial system is not slow unless the lawyers manipulate to slow down

keeping the client on spending spree. It is the lawyer who is to push his case andnot the judge. The procedural law provide for all remedies where delayis being caused but it is skill of the lawyer who must use it to secure quickerrelief to his client. A judge is left with no option to speed up the trial whenhis attention is drawn to such delaying tactics by opposite party. Even if things aredelayed, the lawyer still has option to approach a superior court to seek directionfor disposal of his case within a fixed time frame”.(Ishaq, personalcommunication, March 11, 2007).

These comments from the lawyer, rather reflect ideal situation that is surely different

from ground realities. A litigant once entrapped in a civil or criminal case, must continue

paying money to lawyers and court staff on each hearing. Long waiting time and

frequent adjournments are not the only irritants of the judicial process. There are many

more irritants that keep laymen away from involving in litigation as long as he can.

Unless the society actively assert to exercise their rights and individuals are proactive, the

social environment will continue to encourage the criminal to move without any fear of

accountability.

Incompetent Endo-Scopy

A lady of 65 years of age explains her ordeal caused by negligent handling of her case by

doctors at a prominent hospital. She was admitted with complaints of bleeding peptic

ulcer with hemoglobin level of 7.3 gm/dl. She was moved to special care unit of the

hospital and was required to be administered at least 4 pints of blood to raise the

haemoglobin level. Despite her shifting to special care unit, she was administered only

one pint of blood and subsequent infusion of blood was delayed by about 4 hours. She

was shifted for urgent endoscopy without additional transfusion of blood despite the fact

that there was a sufficient stock of blood in blood bank and patient’s relatives had

arranged 10 volunteers in addition. The physicians concerned still did not act with due

diligence and during endoscopy discovered that the patient had large ulcer covered with

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slough which was seen occupying almost entire bulb of duodenum coupled with

prominent fold of mucosa. The doctors carelessly proceeded to take a sample of biopsy

from that edematous area without any informed consent or careful evaluation. In this

process profuse bleeding started from the ulcer site so much so that the patient vomited

blood clots. The specialist at this stage came to know of low haemoglobin level and

started shouting at nursing staff in panic. Due to profuse bleeding and delayed transfusion

to make up the deficiency, the patient developed ischemic renal injury and doctors were

constrained to abandon the endoscopy and went on to refer the patient for arterial coil

embolisation requiring surgery. The patient was rushed to radiology unit and radiologist’s

report revealed that the patient was in hypovolemic shock with a blood pressure of 80/60

mmHg when she was brought to the procedure room. The embolisation procedure was

done with a microcath passed through the leg. This further resulted into wound infection

at site of micro cath and Deep Venous Thrombosis (DVT clotting of blood) in the leg

below the level of arterial puncture and pressure point. The lady maintained that this was

also caused due to negligence and carelessness of doctors. She further added that she

vomited blood in massive quantum which soaked her gown, hair and face. Despite her

repeated requests, no one cleaned her body and she remained in this state of dirty smell

and helplessness for over twelve hours unless her attendant protested and called the

supervisor to intervene. This also reflects poor and reckless compliance with aseptic

requirement necessary in such cases. The lady further added, that it was interesting rather

sad to note that the doctor responsible to mess up endoscopy due to his negligence and

incompetence never showed up despite repeated calls and messages by the hospital staff.

The patient was later attended by another consultant. After about few days she developed

swelling on her right leg. The consultant doctors then decided to put in IVC filter and

this invasive treatment was about to start but the relatives of the patient were alerted by

then and they discussed the matter with their family physician in USA who advised low

molecular weight heparin. On their insistence the doctors were constrained to reconsider

their decision and next day, a senior consultant was called and he agreed to this type of

treatment. The patient was discharged from hospital with swollen leg with advice for

follow up treatment. The patient was burdened with heavy amount as hospital bills for

this dreadful experience and she went with more wounds than healing the one brought by

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her. She was taken to Mayo Clinic, Rochester, Minnesota USA by her daughter where

she was symptomatically treated and cured with advice for annual follow up. On her

return from USA the lady requested the hospital for medical records, surgical notes and

log book and names of doctors and paramedical staff treating her during her admission.

The hospital did not respond despite repeated requests.

The case of this lady is an example of violent white-collar crime in the sense that she

suffered because of incompetence, carelessness and deliberate violation by her doctors.

Once in trouble, the lady was deserted by the doctor instead of consulting his colleagues

to arrest the situation, the attending doctor vanished from the scene showing weak moral

courage and professional strength. The established custom of the profession is that

essence of decision making lies with the patient after he has been given full details of

illness by the examining doctor. In developing traditional conservative societies like ours,

this decision making is mostly done by family members who stay in touch with the

doctor and the patient is generally kept out of anxiety of knowing his disease or health

status. However, in this case example the doctor neither explained details of treatment to

the family nor he sought consent from any one. He even did not ensure that proper blood

transfusion has been conducted to bring the patient to a befitting position to afford

clinical procedure. This criminal conduct of the doctor is not reason based but is

discretion based where rights of the patient are completely violated without any

thoughtful deliberations. This is rather a practice followed across the profession in our

society. The Code of ethics emphasizes that:

‘The patient has the right to courtesy, respect, dignity and timely responsiveness to hisor her health needs’. (para 10.3).The patient has the right to continuity of health care.The physician has an obligation to cooperate in the coordination of medically indicatedcare with other health care providers treating the patient.(para 10.5).

The daughter of the lady, who was in USA at the time of her treatment, explained the

difference between professionalism and answerability in Pakistan and USA in following

words:

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“As the doctors enjoy unquestionable authority in Pakistan and there is no checkon their day to day working, such violations of ethics and professional obligationcontinue to prevail. They can desert the patient half way of her treatment to pursue another profitable activity or run away when their competency fails toaddress the situation. They do not prefer to consult their senior colleagues if

they end up in difficulty. They ruthlessly ignore their primary obligations towardsthe patient and hospitals employing these doctors also remain indifferent towardstheir malpractices and rather they protect and patronage them by failing to providedetails of treatment, documents and names of doctors treating the patient. It ishorrible situation that there is no law that can regulate conduct of these professionals and the hospitals those are running like a profit generatingenterprises. If such situation arises in USA the doctor must have to pay millionsas compensation for negligence and may be his license to practice would have been cancelled. Every doctor is USA is compelled to have his professionalnegligence covered through an insurance for any liability arising out of his professional malpractice or negligence but in Pakistan neither they have any fear

of such prosecution not there are aggressive victims to pursue such negligence.There are no competent lawyers to make a case and there are no courts tounderstand the gravity of harm doctors are doing to the society. I wished I couldfile a suit for damages against the doctor and the hospital merely to set a precedence and send a message that human life is not so cheap but I do not knowhow long will it take and what will be the result of such exercise.”(Afsheen, personal communication, October 7, 2007).

In a developing society like ours, concept of suing a physician for his negligence is alien

both to victims and the physician and perhaps to the courts as well. This gives the

physicians and surgeons unbridled opportunities to deal with a patient the way they

choose, whether they are competent or not and whether their diagnosis is correct or not?

Neither regulatory mechanisms is in place, nor are the procedures for inquiring against a

doctor so enduring that a common man can withstand. Doctors betray the confidence of

their unsuspecting patient and the victim patient continues to pay financially and

physically. This trend is more in practice in rural society where majority of the

population is vulnerable. This sort of negligence and malpractice is a broad based

category of tort law and essentially is a white-collar crime because it involves breach oftrust. The medical professional causes unrecoverable harm and injury to his patient due to

his failure to meet established standards of care warranted by his professional obligations.

The purpose of suing a professional physician or surgeon has two dimensions, firstly to

compensate the victim and secondly such penalty must serve as deterrence for other

professionals and in the end society gets benefited from such steps of corrective social

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engineering. The culture of medical malpractice litigation is virtually absent from our

developing society. There is a social dimension of this desentization of deviant practice

of professionals by the victims. The unsuspecting traditional society places unlimited

confidence in physician that carries inherent dangers of providing unlimited opportunities

to the physician for malpractice and fleecing money from the victims. The privileged

position of physician grants him absolute immunity and when something goes wrong it is

believed to be divine will. The privileged position of physician is derived through a

historical understanding of the healer as an instrument of mercy (Moazam, 2000). This

confidence often integrates the physician into family and it is usually not possible to seek

treatment from a medical professional unless he is known to the family or at least some

such reference exists. This privilege inspires glamour for professional deviance among

the physicians and thus their deviance goes unnoticed and concealed from the victims.

Although this trend is slowly changing in some smaller educated and inquisitive

segments of society but due to absence of an institutional mechanism this white-collar

crime continues unabated. There are no civil society groups that could resist and halt this

alarming situation. There is no data recording cases of professional malpractice as there

are no appraisal surveys or performance evaluation by any regulatory organ to assess the

damage being caused to the society. This also places the victim in disadvantageous

position and this area of white-collar criminality remains concealed within the four walls

of operation theatres, patient’s wards, clinics and the doctors. There are no lawyers to

work on contingency fee basis and there are no consumer friendly NGO’s to promote

awareness. On the contrary professional physicians in USA and Europe are under so

much pressure from legal profession and consumer groups that physicians have to resort

to defensive medicines (NetWork, 2006). Such pressures are, however, regulated through

comprehensive and balanced legislation in each state and civil society organizations are

proactive to pursue actionable wrongs to assist the victims. Our society is voiceless and

hence element of de-stigmatization is prominently observable among both the victims

and the perpetrators.

Defensive medicine is a practice of advising medical tests and procedures or

consultations of doubtful or irrelevant clinical values so as to exclude every possibility to

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protect the prescribing physician from medico legal litigation (Bajpai, 2006) where the

patient raises any claims. Some jurists call this practice as crooked and preemptive acts of

physician so that in case something goes wrong, physician has in record, something to

show in his defense. This adds to the costs of patient care that is to be borne by the

victims. In our society physicians do not have to adopt these techniques because neither

the patient can afford it, nor the physician needs it. In a survey recently conducted in

USA there are startling findings when compared to our social scenario: Surgeons

annually pay an average of USD.75,000 on insurance premiums. On top of these

premiums, doctors who practice very defensively add as much as USD.21 billion to the

health care bill every year. Twenty percent of the tests prescribed by doctors were not

necessary, but they are the result of defensive practicing by doctors who do not want to

be held liable (quoted in Bajpai, 2006) A UK based surgeon of Pakistani origin explains

his experience regarding professional liability:

“There is a general perception among many Pakistani immigrants settled in UK,USA and Canada that Pakistani surgeons are more skilled than their counterpartsin these countries. This belief is more prevalent among those Pakistaniimmigrants who are yet not entitled to medical insurance cover or yet have nosuch cover affordable to them. Some of these people have their personalexperience to tell that they were successfully treated in Pakistan by Pakistanisurgeons at fraction of costs charged by a UK, USA or Canada based surgeons.

They also experienced that Pakistani surgeons readily carried out such surgeriesthat surgeons from UK were reluctant to perform. Seemingly, this perception ofPakistani immigrants appears to be correct but it is not the case as we arecomparing apples with oranges. This impression gathered by Pakistaniimmigrants is in fact reflection of absence of that culture of medico legallitigation that prevails in USA, UK and Canada. A surgeon practicing in Pakistanworks under no fear of a law suit for negligence even if he makes a mistake. He isout to conduct a surgery as he thinks proper and there is no check and hence nofear. Where any mishaps occur the surgeon walks out without any feeling of guiltshame or fears and the victims have no remedy. In UK even the most experiencedsurgeons refuse to treat a complicated surgery despite having better resources

only to escape the blame of negligence and face a law suit. It is not the skill orarticulation of surgeon, it is his bravery rather recklessness that works under thisscenario of freedom at the cost of victims. I know many cases of spoiled surgerythat were repaired by UK surgeons.” (Amer, personal communication, October11, 2007).

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This intelligent comparison of contrasting difference of professional and social

environment prevalent in western societies and in our society indicates the

unquestionable opportunity available to physicians and surgeons in our society to

multiply their fortune towards their cultural ideal of acquiring their goals by whatever

way they have at their hands. This societal contrast also strengthens the argument that

glamour for white-collar crime prevails as a norm where no fear of accountability or in

other words de-stigmatization is prevalent as a norm. White-collar crime flourishes if the

society is de-stigmatized and with this process glamour for criminality also develops.

Sutherland explained this phenomenon of white-collar criminality in following words:

“The crimes of the upper class either result in no official action at all, or result insuits for damages in civil court, or are handled by inspectors and byadministrative boards or commissions with penal sanctions in the form ofwarnings, orders to cease and desist, occasionally the loss of license and only inextreme cases by fines or prison sentences. Thus the white-collar crimes aresegregated administratively from other criminals and, largely as a consequence ofthis, are not regarded as real criminals by themselves, the general public or thecriminologist.” (Sutherland, 1940).

In a recent research by Harvard school of public health published in current edition of

New England Journal of Medicines (May, 2006) it is established that every malpractice

suit filed in United States has a meritorious basis and rejects claims that civil justice

system is inundated with frivolous lawsuits. This research supported the rejection by US

senate of a recent piece of legislation proposing compensation limitation of USD.250,

000 for non economic damages for medical negligence. ("Malpractice Lawsuits," 2006, p.

A18).

Unscreened Blood and Hepatitis C

A very complex and interesting practice of shedding away with responsibility shows how

indifferent towards their obligations and de-stigmatized sub culture of medical profession

is in our society. Another victim of professional negligence, reports that he was admitted

to Khan Hospital with complaint of chest pain. He was advised Coronary angiography

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for correct diagnosis. Later, the patient was advised Coronary Artery Bypass Grafting

(CABG) by a renowned cardiac surgeon of the hospital. The patient gave his consent to

the recommendation and was admitted to the hospital for CABG. Two days before

surgery all necessary tests of his blood were conducted at the state of the art laboratory of

the hospital and the patient was cleared for surgery accordingly. The hospital

management informed the relatives of the patient hours before surgery to arrange for six

donors for fresh blood and patient’s relatives managed to arrange six volunteers for blood

donation but they were not asked to donate blood and were kept in waiting. Six days

after the surgery, the patient was discharge from the hospital with follow up medication

and dietary advice, walk and exercise etc. Two months after discharge from the hospital

the patient started experiencing unprecedented Nausea and vomiting. The patient

approached his surgeon who informed him that this condition is nothing to do with

CABG and advised him to consult his physician. The physician advised him liver

function test. The patient reported the same hospital with LFT reports and was further

advised test for Hepatitis profile, and ultra sound abdomen. When the patient revisited

his physician with these reports, he confirmed that the patient had an attack of Hepatitis

‘C’ and ‘E’ viruses. This was shocking and startling news for the victim. The patient

then recalled that Hepatitis is caused by contact with blood and blood products, blood

transfusion and use of shared, poorly sterilized syringes and instruments. He realized that

the only occasion in his life when he was given a blood transfusion was at the time of his

CABAG. Thus the patient who went for the purpose of surgery to get rid of heart

problem was further a prey to another fatal disease caused due to negligence and lack of

care by his doctors. He was advised further course of treatment by way of interferon

therapy injection for 24 weeks. He was advised to arrange for another Rupees 400,000/00

and was informed of side effects of this treatment, those included continuous fever, bone

ache, flu, cough, general weakness depression and hair loss.

Horrified with new dilemma, the victim requested the hospital authorities and virtually

begged for fair treatment requesting to arrange for his treatment at their cost. But hospital

authorities refused to pay any attention to his requests and completely disowned him. He

launched a written complaint to the management for an impartial inquiry to ascertain

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cause of his agonies, reimbursement of his payments and treatment of his newly acquired

disease of hepatitis ‘C’. But his follow up remained unsuccessful as no one was prepared

to accept the liability. No one could satisfy him as to why the doctors preferred to

transfuse blood from their blood bank instead of using the blood arranged through

volunteers of his family. The hospital management informed the victim that they have

conducted thorough inquiry into the matter and concluded that fault does not lie with any

of the doctors or hospital management. Interesting part of this reply was that hospital

management declined to disclose names of doctors conducting this inquiry and what was

terms of reference of this inquiry and why the victim was not associated with this inquiry

being the ultimate sufferer. Dis-satisfied with handling of his complaint by the hospital

management he made written complaints to Federal and Provincial Health Ministers.

Provincial Health department nominated one member committee consisting of a specialist

doctor to investigate the complaint. Federal Health ministry instead of taking any action

advised the victim to approach Pakistan Medical and Dental Council to redress his

grievances. The PMDC did not do much and conveyed their conclusion that probability

of acquiring hepatitis with best screened blood is 3%. The one member committee

constituted by provincial government gave clear findings to the effect ‘the probability of

patient’s acquiring the Hepatitis C through blood transfusion given at Khan Hospital

during his surgery is very high’. Similar findings were extended by the hospital chief

pathologist confirming that sensitivity of best screened blood to detect contamination of

hepatitis C is 97%. The victim approached PMDC and stressed upon his complaint. In

response to his complaint he was informed that a meeting of the disciplinary committee

of PMDC was scheduled on a fixed date and he was required to appear before this

committee to present his case. He effectively represented his case in presence of the

defaulting hospital representatives. However, on conclusion of this hearing, he was

informed by the chairman of this committee that they have no legal authority to take any

disciplinary action against a hospital implying that their organization is only to regulate

individual doctor’s conduct. If he had any complaint against a particular doctor, only then

the committee was in a position to take an action. His dilemma was that he was not

having evidence to level allegations against a doctor and hospital refused to provide

records of his treatment. He was advised to approach a court of law to redress his

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complaints. All his efforts and hopes were frustrated at this point. He called this situation

connivance of peers for the benefits of peers. Sense of mutual solidarity and self-

protection make criminal opportunities more attractive by reducing the chances of

receiving severe punishment” (Coleman, 1994).

This case is unique in the sense that the victim was well educated and aware of his

rights. He used all available regulatory mechanism of the country to redress his

grievances but nothing could cure his sufferings. This is sheer act of gross negligence

severely culpable by all moral and ethical standards. The most pronouncing part of this

case of moral apathy is that hospital management is not forthcoming to provide free

treatment to the victim. Perhaps they are not prepared to leave even a symbolic or implied

orientation to show their lack of care and in their view it will amount to accepting the

blame of negligence if they provide treatment to the victim. This deep rooted moral

apathy is what Durkheim called ‘acute anomie (Durkheim, 1960). In this case violation of

professional ethics involving negligence and informed consent are in issue.

Administering medical treatment without consent would be considered a failure to

respect a patient’s autonomy, thereby violating his right to self-determination (Tom &

James, 2001). The patient must understand the risks, benefits, nature, probable results,

alternative options and difficulties of recommended treatment. The hospital management

did not inform the patient about the probable risk margin of 3 percent of contamination of

blood transfused to the patient that was particularly essential when relatives of the victim

had already arranged volunteers for supplying safe and fresh blood. The hospital

management acted without an informed consent depriving the victim of his choice to

arrange safe blood or even refuse to undergo surgery at all under given circumstances.

The ultimate objective of undergoing surgery or medical treatment is that the doctor owes

an implied warranty to his patient that his quality of life would improve after he

undergoes recommended treatment. It is ethical liability of the doctor and hospital to owe

this obligation when something goes wrong. They attract their customers (patients)

projecting themselves as possessing special skills, knowledge and technology to treat

their ailment. But this trust was breached when the victim claimed his right in this case.

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The regulatory mechanism of PMDC could not help the victim. On question of providing

record of treatment a senior physician candidly shares:

“It is not possible to keep a befitting record of systematic treatments given to the

patient. There is lot of load on the doctor and he records his advice and it is dutyof paramedical staff to follow the advice. There are no dedicated staff andresources available to keep the records. It is very occasional where treatmentrecords are sought by any body after the patient has been discharged. Obviously itis in interest of the doctors to keep secrecy. If anything goes wrong the recordsmay be tailored to meet the eventuality if a patient or his relatives become nasty.When the patient is not insisting, why should a doctor be forthcoming to leaveevidence of what treatment he gave to his patient? In case of governmenthospitals, keeping records of treatment is impossible because many of the tests arearranged from private facilities by the patient himself. It is only in armed forceshospitals that keep complete records of treatment because there is accountability

and patient’s duty is directly related with his state of health”. (Amjad, personalcommunication September 12, 2007).

It is individual attitude and competence of the doctors that chalks out their behaviour. If

they are competent they need not keep any secrecy. This manipulation by the doctors

against their ignorant and unaware patients is a manifestation of amoral attitude of

professionals who attempt to take advantage of their privileged position disregarding

their moral and ethical obligations towards their patients. They hide their incompetence

behind the disadvantageous position of their patient. They tend to violate their

professional ethics without any fear and this practice has become an established norm.

This position strengthens the argument that absence of law or its non enforcement

provides breeding grounds for white-collar crime to take roots in the given social

environment.

On question of informed consent, a senior surgeon working in a government owned

teaching hospital advocates his stance as to how he does not consider it necessary to

inform the patients about details of surgery to be performed:

“I have been carrying out invasive surgeries of complicated natures. Based on myexperience with patients, I can say that it is not necessary to explain details ofsurgical procedures to the patient or his relatives. They become apprehensive andin a number of cases it has happened they disappear from the ward on the day

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when their surgery is scheduled. They report to the surgeons when their case hasalready been spoiled by the quacks or they end up with these quacks afterknowing about details of surgical procedures. Ordinarily they have stronger beliefin quack of their village or town than in explanation of surgeon. It is this situationthat places the surgeon into moral quandary to save the life of the patient and save

him from becoming a victim of quacks who will charge him lot of money and stillwill spoil his ailment further. It is in patient’s interest that he is informed of onlywhat is barely essential”. (Naseer, personal communication, September 18, 2007).

This position hints an enigma of our society that patient does not understand what is in

his interest. He wants to have an easy way out of his ailment and seemingly surgeon’s

stance seems operative under these circumstances. But this practice of disclosing ‘bare

essentials’ opens the doors of corrupt practices for some physicians who overstate the

ailment or over prescribe the drugs for their patients to fleece money. This practice is

more prevalent in rural areas where bulk of population of society resides and physicians

are also the partners or owners of the pharmacies attached to the hospitals. The ethics of

informed consent can ideally work in social scenarios where patients also have capacity

for an intelligent and rationale choice.

The ignorance and unawareness speak from the experience of a physician whose gestures

of saving life were misunderstood by an attendant of a patient. A Cardiologist explained

his experience with ignorant relatives of a patient who had suffered heart attack and when

he was trying to resuscitate him. He received an emergency call that a patient was

complaining severe chest pain and his blood pressure was dropping. On arrival, he noted

that the patient had a heart attack and had serious trouble in breathing. In an attempt to

resuscitate the patient, he attempted to press his chest to give movement to his lungs. The

younger brother of the patient stabbed the physician in his back blaming that he was

trying to kill his already troubled brother. When the doctor successfully resuscitated the

patient the suspecting younger brother came to know of factual position, and he had noface before the physician. In such an ignorant social milieu, the physicians continue to

have opportunities for glamorous pursuits to fleece money with full impunity among the

de-stigmatized and unaware society around him that lacks virtues of assessing what is

and what is not in their interest.

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In such social circumstances professional white-collar crime flourishes where there is no

medical malpractice litigation culture in a society and there is no corresponding

regulatory mechanism. In religiously conservative society of Pakistan, where something

goes wrong it is attributed to God’s will without objective application of mind to explore

independent reasoning. There are only two judgments on medical malpractice litigation

in Pakistan from 1947 to 2003. This situation is perhaps due to ignorance, illiteracy,

poverty, unawareness and non activism of civil society against professional crimes. The

unwarranted high and unquestionable social status accorded to the doctors in our society

and absence of vocal civil society organizations are other reasons. Here is a case where a

sub inspector of police himself landed in jail instead of arresting a doctor accused of

negligence. A district judge refused bail to a doctor nominated in a murder case. The

doctor was accused of gross medical negligence resulting into death of 2 years old boy.

The judge assigned the duty to an Assistant Sub Inspector of Police to arrest the doctor

and investigate the case. The police officer violated the court order and he himself landed

in jail instead of arresting the doctor (Bail Plea, 2006).

Permanent Loss of Hearing

Another victim of doctor’s negligence at Khan Hospital describes his ordeals after having

suffered a moderate head injury caused due to a road accident. On initial assessment it

was found by the attending doctors that he was stable and having deep laceration on his

forehead. At the time of admission to the hospital he was having perfect hearing, smelling

and vision ability. He was initially treated in intensive care unit of the hospital and next

day was shifted to a private ward. During his treatment lumber puncture was done for

collection of cerebro spinal fluid for examination. Three doctors carrying out this

procedure decided to insert VP shunt into lumber. The patient or any of his relatives

were not informed of probable risks associated with such procedures. Few days after this

invasive procedure, it was revealed that the patient had got meningitis from the

contaminated hospital environment due to lack of precaution and care. When the doctors

handling the case came to know of this development, they decided to remove the VP

shunt and replace it with ventricular drainage. This was however done after an

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unreasonable delay of a week placing the patient on high risk. During this period he was

placed under heavy doses of antibiotics having known side effects of adversely affecting

the hearing nerve. Seeing no improvement in his condition the doctor’s team decided to

go for another surgical procedure to remove VP shunt and replaced it with omaya

reservoir. The victim experienced severe pain in his head with acute swelling and

complained impairment of hearing, vision deterioration and smelling ability. The doctors

team did not inform the subject about meningitis and kept it concealed after keeping him

on heavy doses of antibiotics, and later discharged him from hospital declaring him fully

fit. They advised him that disabilities of hearing, vision and smelling are temporary and

informed him that these are routine side effects of invasive surgical procedures. He was

having swelling on his head at the time of discharge and the doctors advised him nothing

to worry about. They made no mention of meningitis at this moment. The victim was

advised follow up visits if required. The condition of the subject continued to deteriorate,

particularly his loss of hearing continued. His elder brother took him to the same doctor

and insisted for a thorough check up. The doctor took CSF of the subject and informed

his attendant to visit later on receipt of analysis report of CSF. As the condition of the

patient was deteriorating, his brother insisted for his admission and doctors had to agree

to this request. The patient was again subjected to invasive procedure of inserting the VP

shunt without any brief from the doctors. With this treatment the condition of the patient

did not improve and he continued to suffer from fever. He was placed under heavy doses

of antibiotics. The doctors realized their mistake and immediately decided to remove VP

shunt under the circumstances. When the relatives of the patient protested over his loss of

hearing, sight and smelling ability, the doctors pretended that he was still under treatment

and after the effect of medication is over, he will be normal. However, the patient could

not recover from these situation months after his discharge from hospital. His brother

suspected some lack of care and breach of duty. He approached the two doctors for

providing him copies of all medication records, nursing and surgical notes for a second

opinion. The doctors continued delaying provisioning of records on one reason or the

other to hide their omissions and commissions. The doctors advised him to wait for about

10 months when his brother will normalize. But the patient made no progress during this

period.

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Tired of false promises of the doctors; brother and father of the patient aggressively

pursued management of the hospital to provide medical records for a follow up treatment

from some other specialist. Finally they were provided with a summary of medical

treatment. This summary for the first time disclosed that the patient had developed a

profound sensory-neural hearing loss confirmed on audiometric and the patient had

permanently become deaf. None of the doctors disclosed this to the patient or his

attendants during his treatment merely to prevent the patient to know of their malpractice

and malfeasance and a possible reaction from the surrogates of the victims.

This case is a worst example of criminal negligence on the person of the victim by the

professionals. This perhaps in no way qualifies to be a case of simple negligence and may

perhaps be placed under the category of criminal negligence. The doctors had treated the

patient the way they wanted with little concern about his consent and personal autonomy

and feasance. They were never concerned with briefing the patient or his relatives what

they were going to do and what were possible risks associated with their proposed

treatment. They were not diligent to what is warranted by their professional ethics. There

is a plethora of legal cases in USA and European legal literature where doctors have been

penalized for failing to inform the patient about what is going to be done with his body.

The importance of informed consent was first highlighted in an American Case. Justice

banjamin Cardozo explained this concept making following statement:

“Every human being of adult years and sound mind has a right to determine whatshall be done with his own body; and a surgeon who performs an operationwithout his patient’s consent commits an assault, for which he is liable”(Schloendorff Vs Society of New York Hospital, 1914).

As moral values in conservative society of Pakistan emanate from the religious teachings,

the code of ethics promulgated by PMDC, particularly integrates Islamic perspective of

ethics for physicians. It lays down that:

“In Islam, human beings are the crown and are Allah’s vicegerents on earth. Theyare endowed with reason, choice and responsibilities, including stewardship of

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other creatures, the environment and their own health……………………..Islamic bioethics emphasizes the importance of preventing illness, but when preventionfails, it provides guidance not only to practicing physicians but also to the patient.The physician understands the duty to strive to heal, acknowledging Allah as theultimate healer. Islamic bioethics teaches that the patient must be treated with

respect and compassion and that physical, mental and spiritual dimensions of theillness experience be taken into account (emphasis added) (para 7.0).

There is separate Islamic code of medical ethics (1981) formulated by Islamic

Organization of Medical Sciences. There are specific laws of medical practice in various

countries like USA, Canada, Europe and Australia that make the physicians’ duty bound

to explain the planned treatment to their patients with reference to risks involved, and

options available. In case of Pakistan, the only available remedy is under civil law of tort

and during 60 years history of country this remedy has seldom been exercised by any

victim against a doctor. Although there are few cases where courts have awarded decrees

for damages in other tort cases like road accident due to negligent driving, electrocution

due to negligence of electric supply corporation etc. The criminal law of the state does

provide punitive measures for negligence and breach of trust but it is considered very

strange and unusual to prosecute a physician for his misdeeds. In our social scenario,

there is no law that particularly regulates deeds of these professionals. They have

complete impunity with open field to fleece money from their victims and still harm

them. Sutherland explained and elaborated this situation as under:

“White-collar crime flourishes at points where powerful business and professionalmen come in contact with persons who are weak. ……It is similar to stealingcandy from a baby. Many of the crimes of lower class, on the other hand, arecommitted against persons of wealth and power in the form of burglary androbbery. Because of this difference in the comparative power of the victims, thewhite collar criminals enjoy relative immunity” (Sutherland, 1940).

On question of ethics, a trainee surgeon working as registrar in a government hospital

explains his learning experience in following words:

“Our professor while explaining the surgery procedure lays a special emphasisthat whatever activity takes places in the operation theatre must not be disclosedto any one out side. Matters of operation theatre must remain within four walls of

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the operation theatre. Everybody including paramedics follows this unwritten principle and if something goes wrong, it is never disclosed even to other professional colleagues. Surgery notes are often written to record that everythingwas performed well within the procedural protocols even if it was not so performed. Our seniors followed the same practice after they qualify their final

exams to become consultants. I also feel this to be a convenient way of avoidingany blames of professional errors (Naseem, personal communication, September17, 2007).

This legacy of professional expediency brings us to a confluence of Coleman’s theory of

motivation and opportunity and Durkheim’s anomie theory. The professional physicians

place disproportionate emphasis on their cultural ideals of accumulating wealth even by

violating all norms of social normative system and ethics of their profession whereby

they jump over the boundaries of their professional ethics at the cost of bringing danger

to the lives of their patients and still manage to repel any blames. Coleman (1994)

elaborated this phenomenon in his seminal work while presenting his theory of

motivation and opportunity:

“Occupational sub-cultures play an important role in facilitating many types ofwhite-collar crime by promoting the spread of the knowledge and techniquesnecessary to transform a potential course of criminal action into a psychologicallyavailable opportunity. Because these subcultures typically have diversemembership, they provide a source of communication independent of the industry

or organization in which an individual works. Accountants, physicians andlawyers for example, learn about opportunities for whit-collar crime as they learntheir profession and are socialized into its subculture………………Althoughsubcultures in law, medicine and the other professions do not directly condonecriminal behavior, the sense of mutual solidarity and self-protection makecriminal opportunities more attractive by reducing the chances of receiving severe punishment” (Coleman, 1994).

This display of professional solidarity is often seen and heard when doctors proceed on

organized strikes often under the umbrella of Pakistan Medical Association to protect

their colleagues accused of negligence or misconduct. Moved by this highly unethical

practice of strikes by doctors to give illegal protection to their colleague, a UK based

surgeon of Pakistani origin stated:

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“Doctors have started protesting against the registration of criminal cases againstsix doctors for leaving forceps in a lady’s abdomen leading to her unfortunatedeath. These protesting doctors should thank their stars that they are working in acountry where cases of professional medical negligence are dealt with this way.Working in one of the western countries would have lead them to cancellation of

registration and taking away of the right to practice depending upon the role played in the negligence. The public and the medical community have to realizethat cases of professionals have to be dealt with in a professional way and there is price to pay. The head of department is as responsible for any negligence ascaptain of the team.” ( Saeed, 2006).

In another case, the Supreme Court of Pakistan acted against the doctors proceeding on

three days strike to protest against arrest of their colleague on charges of negligence. This

was a rare case where the Supreme Court took suo motu notice of media reports that three

children died because of the alleged negligence. The Supreme Court commented: ‘how

could government doctors go on strike?’ and ordered the provincial Government to

transfer all the doctors of the district hospital replacing them from a fresh team other than

from their home district (Protesting doctors, 2006).

Unwarranted Procedure

Mr Khan, another sufferer of gross professional negligence explained how he lost his

wife at the age of just 29 years. Both of them decided that their family was complete and

they did not want more children. For this purpose they approached their family

gynecologist working at a renowned hospital. She advised the lady to go for an

ultrasound before undertaking any procedures. The ultrasound report clearly indicated

that the lady had no signs of pregnancy as there was no definite gestational sac or any

free fluid seen. The walls of uterus known as myometrium were found to be swollen

clearly indicating that she will have her normal menstrual periods within a week’s time.

Despite this clear report, the gynecologist fabricated a false story to fleece money by

advising the lady that she had a missed abortion. A type of abortion when embryo dies

and gestation sac is retained in uterus for weeks and months. The lady was told by the

gynecologist that she was carrying a fetus inside and she may later develop bleeding

disorder. The unwitting and unsuspecting lady blindly believed the doctor and got

horrified with her diagnosis. The lady was advised by the gynecologist for a minor

surgery and advised her to get admitted in the hospital. After consulting her husband, the

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unfortunate lady decided to get rid of her disease and next day was fixed for surgery. The

unsuspecting couple reached the hospital early morning the next day and all pre-surgery

tests were conducted. The proposed surgery was scheduled in the after noon. The

husband was informed of successful pre-surgery evaluation and was asserted by the

gynecologist that she was quite expert in conducting such type of procedures. The

husband was never informed that this surgery was being planned under a general

anesthesia. The lady was taken to operation theatre for proposed surgery in the

afternoon. In the evening, the husband received a surprising call from the hospital that he

must reach the hospital immediately as condition of her wife was critical. He was

shocked to see her wife lying speechless and unconscious. He was informed by the

gynecologist that her wife has suffered a cardiac arrest during the surgery. He was

consoled by the gynecologist that the lady was stable and breathing without any

mechanical support. The suspecting husband did not trust the gynecologist this time and

managed to seek private consultation from a renowned neuro surgeon who examined the

lady at the hospital and confirmed that the brain activity of the lady have become dead.

The gynecologist still rejected this assessment and insisted that the lady is breathing on

ventilator. The husband brought his family doctor who also confirmed that the lady is

already clinically dead and there appeared to be no justification for the lady to be kept on

ventilator except to hoodwink and extract money by deception. The gynecologist

disappeared from the scene but nursing staff still insisted to keep the lady on ventilator as

she might recover and come out of shock. The lady was pronounced dead after two days

and the hospital management demanded Rs.45000/00 from the husband before handing

over dead body. The cause of death on death certificate was recorded as ‘cerebral anoxia

and edema cardiac arrest (lack of oxygen supply to brain and cardiac arrest due to

abnormal accumulation of fluid).

The hospital management refused to provide medical documents, reports, nursing notes

etc despite repeated requests by the husband. When the husband aggressively followed

the hospital management, they provided a case summary. The gist of the summary was

that the deceased lady developed sinus badycardia and hypo tension and went into arrest

but was immediately revived by cardiopulmonary resuscitation and she started breathing

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without any mechanical support. The summary further depicted that later oxygen

saturation began to drop and she developed respiratory distress and was put on respirator.

The next day her ECG revealed that there was no brain activity and ultimately ventilator

was removed. The husband contested this self serving summary and declared it as

misleading, false and concocted.

This case is something more than what medical professional ethics encompass. It is a

combination of criminal negligence, breach of trust, malfeasance, misfeasance and

trespass on human body without any justification and informed consent. The lady doctor

fraudulently and cunningly lured her unsuspecting patients to go for an elective procedure

that was not diagnosed during ultrasonic evaluations. The victim was not informed about

the details of the procedure; risks involved and alternate possible options. General

anesthesia was administered without any information to the victim and her husband. The

explanatory story given to the husband is that all difficulty happened when procedure was

about to be completed to show that everything was done professionally as far as

procedure was concerned. The victim asserts that: death of his wife took place due to

over dosing of anesthesia or even if his wife suffered a cardiac arrest the attendant

doctors failed to assess well in time and she died because of their incompetent handling.

It is a case of contumacious recklessness of the professionals on one hand and projects

their ruthlessness, devoid of all norms of ethics, morality and professionalism.

Instead of accepting their mistake they even did not abstain from hoodwinking the

husband to keep him merely on hopes knowing well that their incompetent handling of

the case had taken life of the lady. Another aspect of this case example is that hospital

management did not provide records of treatment. This pattern of refusing to provide

treatment record also indicates their deliberate attempt to prevent the victim from

knowing the actual facts. If they have performed their professional obligations well, they

must be forthcoming to display their innocence. But their refusal is reflecting their

malafide objective to retain an option to temper this record in their favor if matter leads to

further probe. This case of negligence is perhaps the worst of its kind. Such type of

criminal behavior goes unpunished in our society because of the crises of law

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enforcement and ab-initio absence of law to regulate such illegal conduct. A lawyer

commented on this scenario of medical negligence:

“When doctors make mistakes they bring mental torture and physical pain to the

patients and their families. But when these mistakes are brushed aside, the distressdeepens. Medical negligence is not something new, but it is not accountable inPakistan. People accept pain and loss as something ordained, something that was bound to happen. Someone has to break silence.” (Hasan, 2006).

This case is a case of moral bankruptcy hinting at new dimension of glamour for white-

collar criminality among the professionals, that just to make few thousand rupees they

preferred to do unnecessary procedure without any signs and symptoms. The

unsuspecting couple fell prey to their luring on a hope of healthy and happy life. Butcriminal conduct of professionals to deceive their victim pushed them into most

unfortunate and unfair disadvantage where innocent children lost their mother and the

husband a caring wife. There is no effective mechanism in place that could bring a ray of

hope and remedy to check this flagrant violation of rights by the elite professionals. The

lady gynecologist would have landed in jail if it would have happened in USA or Europe.

A journalist well aware of the subculture of medical profession commented on this

situation in following words:

“One do not have to be surprised to see that such type of malpractice and professional mismanagement are an accepted way of life for these professionalsand they will not have even an iota of feelings of shame or guilt if someone dies because of their negligence or malpractice. They live in such a protectivenormative structure of their subculture that it will be quite unusual for a doctor ifhe is arrested for such sort of gross negligence of playing with human life. If he isstill arrested due to some influences, he will claim his innocence exploitinggrounds of discriminatory treatment because everyone else is also doing the samesort of malpractices and why he is to be penalized? All his colleagues will come

running to rescue him from these troubles with utter disregard to quantum of hisor her felonious conduct.”(Ghazi, 2007).

How these professionals tend to ignore high values of their professional ethics when they

enter their practical life. This case is a reflection of motivation of white-collar criminal

that is derived from financial self-interest. Coleman (1994) argues that the desire to make

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more money and the desire to protect what one already has are two closely related aspects

of the phenomenon termed as financial self-interest. For the doctors, this phenomenon of

self-interest provides motivation to these professionals to ignore their obligations towards

the victims and moral and ethical codes. This is one aspect that brings in motivation for

criminal affinity. There appears to be something wrong at the stage of professional

education and training that basic rules of ethics are not correctly emphasized and

inculcated and with passage of time these doctors forget their ideals and move to pursue

other beneficial goals.

Corneal Opacity

The case of an advocate is another horror story who explains his sufferings as a result of

negligent and casual handling of his case of corneal opacity by doctors at a renowned

hospital. The victim was having complaint of corneal opacity in his right eye. Impressed

by the reputation of a Corneal Specialist and ophthalmologist, he traveled from far flung

area of Bahawalpur. He was advised corneal grafting to get rid of his complaint. He was

specifically advised by the said specialist ophthalmologist that if he wanted cornea to be

imported from Sri Lanka, he will have to pay Rs.18, 000/00 but it will have inherent risks

of infection and non immunization. The doctor recommended that if the cornea is

imported from USA; it will be quite perfect, duly tested and immunized. The doctor

further added that this cornea will cost Rs. 60,000/00 and recommended it advocating

complete safety. The unsuspecting victim agreed for American cornea in view of

persuasion by the doctor and agreed to pay Rs.60, 000/00 in advance. After about a

month, the victim was called by the doctor confirming receipt of cornea from USA and

was advised to report for corneal grafting surgery in two days. The doctor assured him

that the cornea imported from USA has been examined by him and it was perfectly

alright. The procedure was completed the next day and the victim was transferred to

recovery room. Next day, the doctor insisted to discharge him with advice that

subsequent follow up is to be conducted by another doctor in another city without

explaining the reasons. The intelligent patient refused to agree to this advice and insisted

that he would like to be treated in the same hospital unless completely recovered. To his

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utter disappointment and surprise the doctor did not turn up in disregards to his ethical

and professional responsibilities. He was attended by another junior doctor. When the

bandage was removed, from right eye, he immediately felt something wrong with his

vision as it was grossly eroded. He conveyed this fact to the attending doctor and insisted

that specialist doctor conducting the surgery must be called. He was pacified with

comments that these are side effects of medicines and soon his vision will be alright. The

ophthalmologist conducting the surgery did not turn up during next two days and his

junior doctor recommended discharge from hospital and further follow up in OPD. After

about 2 days, the victim felt worsening vision with passage of time. Finally, he got hold

of the specialist conducting the surgery and sought his advice. He pacified him by saying

that he has been advised perfect medication and his

Documents

CHAPTER 5-PROFESSIONAL CRIMES-178-230.pdf