We frequently hear of cases of medical negligence which usually result in the deterioration of patients’ medical conditions or even death. Those cases usually end up in court whereby the victims or their relatives seek compensation for the damages done. Consequently, medical authorities have often been ordered to pay reparation to plaintiffs.
In Seychelles, the right to damages as a result of medical negligence is covered by Article 1382 of the Civil Code. Paragraph 1 of the Article states that “every act whatever of man that causes damage to another obliges him by whose fault it occurs to repair it”.
However, is the current legal system perfectly tailored to address societal needs and constraints?
Dr Marco Rizzi, law lecturer and head of the Law Department of the University of Seychelles (Unisey), is of the view that this is far from being the case and that the present legislature can lead to misinterpretation and controversies. This is why he is currently writing an article entitled ‘Current Issues in Medical Liability in Seychelles’.
Dr Rizzi who says he prefers “liability” as a more neutral word than “negligence”, yesterday presented the essence of his research paper to judges, lawyers, law students and representatives of the Seychelles Health Care Agency. The half-day interactive workshop was held at the Palais de Justice on Ile du Port.
The law lecturer presented an analysis of the current situation as well as suggestions for policy reform. This was based on questions on Seychelles’ medical liability regime and related issues to be addressed with solutions. These included legal capacity or efficiency, the ability to respond to social needs and the need for law reform and judicial developments.
He also suggested the possibility of introducing an ‘Accident Compensation Scheme’ like in New Zealand or in Northern social democracies such as Sweden, Denmark and Norway. Compensation schemes he believes will help move from a corrective system which is based on fault to a more patient or victim centered system.
Dr Rizzi also raised the issue of expert witnesses as the plaintiff cannot himself or herself provide the expertise, which thus has to come from the defending side. Does this not sum up to justice for the rich, he asked?, while, at the same time reflecting on the eventual need to set up a Medical Tribunal which will listen and bring remedies to plaints of medical malpractice.
After all, he says, if corrective justice to offer compensation often undermines the legitimate demand of the patient, the key element is not to favour the English or French law but to have a close collaboration between the legal and medical professions, based on evidence and expertise.
He made the reference to the two main Laws on which Seychelles’ own is based – British and French – after he had made a comparative analysis of relevance of foreign laws and precedents. He took more time on the French legislature which says that the obligation to provide medical care is an obligation of means (“obligations de moyens”) which are practically the scientific knowledge and the tools (equipment, medicine, supplies etc.) the practitioner has at his disposal.
So the question remains, is the doctor at fault or is it rather the means? In other words, do we protect the medical practitioner or do we look only at the damage – which unfortunately can be death – and which are the results or consequences of medical liability.
Chief Justice Mathilda Twomey, who was present at the workshop, commented that it came as a result of a review of the medical related law, recorded cases of medical negligence and some decisions taken by judges.
She acknowledged that there has been some difficulty on the concept which is mainly based on English Law and which causes some confusion.
“We must have a Seychellois Law and the workshop will provide some input to the legislature on medical negligence,” she said.
Source : Seychelles NATION