SRI LANKA: Doctor’s negligence results in the removal of a person’s kidney

Dear friends, 

Mr. Alahakoonge Supun Piyal of Pahala Madampella, Katana in the Gampaha District was admitted to the Negombo Base Hospital for medical treatment for abdominal pain on 18 June 2010. He underwent surgery for the removal of a kidney stone and when his condition worsened he was transferred to the Ragama Teaching Hospital. There the doctors informed him that right kidney was infected and ‘certain parts’ were missing due to the surgery. In order to save his life the doctors then removed the kidney. Supun has complained to the relevant authorities about the irresponsible actions of the doctors at the Negombo Base Hospital but justice has been denied for him. This illustrates how, in similarity with the Sri Lanka Police, the medical authorities refuse to take action against their own. 

CASE NARRATIVE: 

According to the information that the Asian Human Rights Commission (AHRC) received Mr. Alahakoonge Supun Piyal of Pahala Madampella, Katana in the Gampaha District is married and the father of two children. 

In March, 2010 he suffered with abdominal pained and went to the Negombo Base Hospital for medical treatment. The doctor who examined him, Dr. Jude R Wijesekara, explained that he had a stone in his right kidney which needed to be removed surgically. He was advised to be admitted to the hospital on 18 June of the same year for the surgery. 

Supun was duly admitted to the hospital on 18 June and was subjected to several examinations. After considering all the reports Dr. Wijesekara performed the surgery on 21 June 2010 following which, Supun remained heavily sedated for two days. 

When he regained consciousness he found that he was in the Intensive Care Unit (ICU) of the hospital. Then he was transferred to the Ward 6. 

On 23 June Dr. Wijesekara came to Supun and informed him that the removal of kidney stone was done but there were large hemorrhage during the surgery so he needed to take more nutritious foods. Several days later while he was still in hospital Supun suffered severe pain in his abdomen again. 

On 28 June Dr. Wijesekara informed Supun that due to some problems in the area of the surgery they had to transfer him to the Ragama Teaching Hospital for further treatment. Supun was taken to the said hospital by an ambulance on 30 June and admitted. 

Then he was admitted to Ward No. 32 and subjected to several examinations. Dr. Namantha Nandasena explained to him that in order to try and repair the damage done to the right kidney during the earlier surgery they had to operate again. This was done on 7 July. 

After he regained consciousness the doctor informed him that they had reopened the area of the first surgery and found that it was infected and full of puss. Further they have noted that the internal part of the right kidney was not clear enough to see. They also noted that certain parts of the right kidney were missing. Upon finding this the doctors could not proceed further and were unable to complete the surgery. They told him that further examination was required until they could perform the next surgery. 

Supun was again subjected to several examinations and was treated as a indoor patient. 

Then Supun learned that doctored examined several of his reports. When they studied his IVU report the senior consultant surgeon informed him that his right kidney was seriously infected. He further expressed his opinion that, “The mason has done the carpenter works at the Negombo Base Hospital”. 

The next day the Dr. Nandasena came to Supun again and informed him that they have to remove his right kidney in order to save his life. This was done on 26 July. Following this operation he was treated at the hospital till the 10 August and discharged. 

While at home he developed a high fever and was again admitted to the same hospital on 19 August and treated until his discharge on 31 August. 

Supun states that the doctors at Negombo Base Hospital negligently performed their duty while examining him and executing the surgery. Further he states that they conducted the surgery without proper medical skill and professional discipline. 

Supun further states that he is now facing severe distress due to the permanent lost that caused by the neglectful procedure of the doctors. He further stresses that the damage done by the doctors cannot be assessed. 

Supun made a complaint to the Sri Lanka Medical Council, Health Ministry of Sri Lanka, Inspector General of Police, Human Rights Commission of Sri Lanka and to the Headquarters Police Station of Negombo but none of these authorities have conducted efficient investigations unto the incident. He further maintains that the state of Sri Lanka have an obligation to ensure him a fair trial and justice regarding his violations of rights. 

The government of Sri Lanka must do all they can to protect his life by providing proper medical treatment for him. He should be given the highest attainable medical facilities. 

ADDITIONAL COMMENTS: 

State obligation for highest attainable standard for physical and mental health: 

The State of Sri Lanka has signed the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 28 Sep 1976 and made its Accession on 27 Apr 1977. Following that the state of Sri Lanka is suppose to fulfill its obligations within Article 2 of the convention undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. Further to that the state of Sri Lanka has undertaken to guarantee that the rights enunciated in the ICESCR Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 

According to the Article 12 of the ICESCR the state of Sri Lanka recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Furthermore the state of Sri Lanka is obligated to take steps to achieve the full realization of the rights envisage in ICESCR. This includes the prevention, treatment and control of epidemic, endemic, occupational and other diseases. Further the creation of conditions which would assure to all medical services and medical attention in the event of sickness. 

Lately the Supreme Court of Sri Lanka, in the case of SCFR/326/2002, Justice Fernando has upheld the state obligation in accordance with the article 12 of the ICESCR. 

“However good the standard of treatment in State hospital may be, there is no doubt that many Sri Lankan do opt for treatment in private hospitals sometimes in the belief that treatment and care is better, and sometimes because of fears in regard to delays, over-crowding, strikes, shortages of equipment and drugs, etc. Citizens have the right to choose between State and private medical care, and in the circumstances the Petitioner’s wife’s choice of the latter was not unreasonable and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural rights recognizes the right of everyone “to the enjoyment of the highest attainable standard of physical and mental health.” 

General Comment 6 of the ICESCR: 
We recall the section 4 of the General Comment 6, emphasis that 1982 the World Assembly on Ageing adopted the Vienna International Plan of Action on Ageing and In 1991 the General Assembly adopted the United Nations Principles for Older Persons and in these section under the headed “care” proclaims that older persons should benefit from health care. 

Further we recall the Article 9 of the ICESCR the right to social security and its emphasis on General Comment 6. According that article 9 of the Covenant provides generally that States parties “recognize the right of everyone to social security”, without specifying the type or level of protection to be guaranteed. However, the term “social security” implicitly covers all the risks involved in the loss of means of subsistence for reasons beyond a person’s control. 

We strongly state that the section 34 the General Comment 6 has emphasis that Article 12 of the ICESCR has the right to physical and mental health with a view to the realization of the right of elderly persons to the enjoyment of a satisfactory standard of physical and mental health, in accordance with article 12, paragraph 1, of the Covenant, States parties should take account of the content of recommendations 1 to 17 of the Vienna International Plan of Action on Ageing, which focus entirely on providing guidelines on health policy to preserve the health of the elderly and take a comprehensive view, ranging from prevention and rehabilitation to the care of the terminally ill. 

According to the section 35 of the General Comment 6 it states clearly, the growing number of chronic, degenerative diseases and the high hospitalization costs they involve cannot be dealt with only by curative treatment. In this regard, States parties should bear in mind that maintaining health into old age requires investments during the entire life span, basically through the adoption of healthy lifestyles. 

General Comment 14: 
We recall the General Comment 14 of the ICESCR on ‘older persons’ with regard to the realization of the right to health of older persons, the Committee, in accordance with paragraphs 34 and 35 of General Comment No. 6 reaffirms the importance of an integrated approach, combining elements of preventive, curative and rehabilitative health treatment. Further it has emphasis on the measures aimed at maintaining the functionality and autonomy of older persons; and attention and care for chronically and terminally ill persons, sparing them avoidable pain and enabling them to die with dignity. 

Budgetary allocations: 
We emphasis that according to the section 47 of the General Comment 14 the state of Sri Lanka is obligatory to article 2.1 of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources. 

According to the Health Ministry of Sri Lanka, 4.6% of the annual health budget was spent on management of patients and this was calculated as 350 million rupees. We stress that the state of Sri Lanka has to allocate enough state resources in this particular subject considering the higher necessarily of the day. 

Necessary legal enactments: 
Recalling the section 59 of the General Comment 14 we appeal that the state of Sri Lanka should adopted a domestic law enabling its citizens or group victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations should be entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition. National ombudsmen, human rights commissions, consumer forums, patients’ rights associations or similar institutions should address violations of the right to health. 

Right to information of the Patient: 
We recall the rights of the patients’ emphasis by the World Health Organization and stressed those rights to be protected for all the citizen of the country. 

SUGGESTED ACTION: 
Please send a letter to the authorities listed below expressing your concern about this case and requesting an immediate investigation into the allegations neglectful conduct of the medical doctors at Base Hospital Negombo, and the prosecution of those proven to be responsible under the criminal law of the country. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department. Further, please also request the IGP to have a special investigation into the conduct of the medical doctors. 

The Asian Human Rights Commission has written a separate letter to the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. 

To support this case, please click here: SEND APPEAL LETTER