Feature & Comment
Ihsan vs state: A father’s 12-year fight for justice
The Supreme Court awarded MVR7 million in damages for medical negligence.
For the past 12 years after his eldest daughter lost her hearing, Ahmed Ihsan was a “walking, talking man in a coma.” A short but sturdy man now in his late thirties, the father of three speaks matter-of-factly as he recounts his nightmarish journey through the Maldivian legal system.
Ihsan’s long struggle for truth and justice began when three-year-old Aishath Iyan came down with a fever in July 2007. Three days after she was admitted at the ill-equipped health centre on the family’s native island of Faresmaathoda, a doctor noticed swelling on her hand and referred her to the Gaaf Dhaal atoll hospital on the nearby Thinadhoo island.
On July 14, 2007, a doctor at the regional hospital operated on her hand and prescribed daily doses of gentamicin, an antibiotic used to treat many types of bacterial infections.
Five days later, Iyan turned deaf.
“I wanted to find out the truth, why had this happened, to be absolutely certain why this happened,” says Ihsan.
The former resort worker, who now owns a small café on Faresmaathoda, recalls taking Iyan to a dozen doctors. The family travelled to India and showed test results to a specialist in the capital Malé. All of the doctors agreed her deafness was caused by the medication, Ihsan says, dissecting his daughter’s condition and the ensuing court battles in an almost clinical manner.
Ihsan’s long wait for justice ended with a landmark ruling on July 25 this year. The Supreme Court concurred that negligence was to blame for Iyan’s permanent loss of hearing and awarded the family MVR7.1 million (US$460,440) in damages.
– 12 years, five presidents, three courts –
Ihsan didn’t think of going to court at first.
“This was in 2007. So we applied for welfare from Theemuge [the former presidential palace]. They wrote back saying there’s too many people on the list asking for aid,” he says.
He put in a request to meet officials at the health ministry. Every day for a month, Ihsan went to the office and waited for hours. But his persistence was in vain as officials ignored him.
Ihsan decided to sue the health ministry after talking to his friend and lawyer Shaheen Hameed.
A frustrating decade followed of officials “hiding behind receptionists refusing to meet me” and judges failing to stick to schedule. Many hearings were cancelled at the last minute because state attorneys failed to show up in court.
Iyan is now 15 years old and due to sit for her O’Level examinations this year. In 2008, with financial assistance from friends, the family spent eight months in Sri Lanka for Iyan to undergo surgery to wear a cochlear implant, a device that includes a microphone with a transmitter that picks up sound and relays to a receiver inside the ear.
Hearings began at the civil court while the family was in Colombo. Aside from the first trial date, Ihsan says he never missed a hearing.
The lawsuit was based on the failure to inform parents of side-effects and to check Iyan’s weight before prescribing the medication. Gentamicin doses are determined in relation to the patient’s weight. Nurses and expert doctors testified during the trial. The hospital followed established procedures in treating Iyan, the state’s witnesses insisted.
As delays mounted, Ihsan met the judge and offered to foot the bill for delivering subpoenas to nurses in Thinadhoo. In 2009, the civil court rejected Ihsan’s compensation claim. There was no proof that Iyan’s disability was caused due to negligence, the judge ruled.
In the High Court appeal, Ihsan accused the hospital of tampering with documents.
The allegation was confirmed by police when they performed tests. Parts of prescriptions including dates were written over correction fluid, they found. Notes by nurses had been changed in the same manner. The hospital’s inpatient records were also checked but forensic police lacked the technology to verify suspected tampering.
“The hospital ended up telling a thousand lies to cover up one lie,” Ihsan says.
The High Court appeal lasted six years before a judgment was handed down. Hearings had been cancelled countless times after Ihsan made the long trip from the southern atoll to the capital.
“It’s very easy to say ‘cancelled’ but they can’t fathom how frustrating and demoralising it is for someone who comes here for that hearing,” he says.
But Ihsan was never disheartened.
“I always had faith that we would get justice. I knew and was prepared from the beginning to go all the way [to the Supreme Court]. I just wasn’t sure if it would happen while I was still alive, because of how slowly it was moving. I didn’t want my daughter to say her father didn’t do everything possible to get justice for what happened.”
Ihsan fought through the reign of five presidents. He sought help from the Human Rights Commission, petitioned the relevant ministries and requested meetings with several attorneys general.
“It’s not just one government, the state failed my daughter,” he says.
When the High Court upheld the civil court judgment in 2015, judges acknowledged discrepancies in the state’s defence but ruled that negligence could not be proven conclusively. According to expert testimony, an adverse reaction to gentamicin could be caused due to a gene present in 17 percent of people even if it was administered properly, the court noted.
But Ihsan refused to concede defeat and took his daughter to Sri Lanka for genetic testing.
“In the genetic centre I went to, they sat me down and gave pre-counselling sessions,” he says, recalling how they tried to manage his expectations. “I didn’t care what the result was, I wanted the truth and to be rid of all doubt.”
The results came in a few months later and provided the grounds for the final appeal. Iyan did not carry the gene that could have caused a negative reaction.
– ‘Historic’ ruling –
In its jugdement, the Supreme Court concluded that doctors at the Thinadhoo hospital had failed to record Iyan’s weight or order tests to determine the exact type of infection before prescribing gentamicin. They also failed to properly explain side effects or refer Iyan to another hospital where testing could have been carried out.
An overdose of the antibiotics could have resulted in loss of hearing, the court noted, citing expert testimony from doctors.
The lower court decisions were based on forged documents and state witnesses made contradictory statements, the apex court ruled, reprimanding the doctor who treated Iyan for failure to maintain the “technical standards, carefulness and the professional standards expected of a person in his capacity.”
The MVR7 million compensation award included MVR719,600 for cochlear implant surgery and rehabilitation, and MVR899,500 for servicing, changing batteries and buying spares every six months for the next 35 years.
The state was also ordered to compensate Ihsan for MVR300,000 spent on the cochlear implant and MVR200,000 for the expenses of staying abroad for the surgery. The rest of the award was MVR3 million as compensation for opportunities lost due to physical disability and MVR2 million for psychological distress caused by negligence.
Ihsan hopes those who face a similar predicament would not have to wait 12 years for redress.
“We have cut out a path, so follow it. This is a win not just for me, but for all Maldivians. I think this has proven that anyone can take the state to court and win,” he says.
In the wake of the “historic” ruling, former attorney general Husnu Suood predicted a “huge impact” on law and medicine in the Maldives.
“Firstly, for the first time the court has clearly recognised vicarious liability of employers for the negligence of its employees. Secondly, the court says that the amount of the damages awarded should not be excessive but reasonable,” he explained in a tweet, taking note of the compensation awarded for psychological distress and loss of earning capacity in addition to the expenses for surgery, rehabilitation and servicing the implant.
The Maldives Medical Association welcomed the judgement but raised concerns over its implications.
“Our doctors in rural setups (and sometimes in capital too) are working with severe limitations with regard to resources available,” the MMA said in a statement.
“There is some concern that expert medical testimony was overlooked in view of document tampering and presumption of overdosing (versus under-dosing). There is some worry that this could be the beginning of a litigious culture, leading doctors being pre-emptively defensive and a breakdown of doctor-patient trust, and this could lead to reluctance of foreign or local doctors to continue to work here, malpractice insurance driving up costs of healthcare.”
The association called for a ‘no-fault’ compensatory mechanism “instead of a litigatory model to ensure mishaps are acknowledged, responsible parties are held fully accountable, all necessary corrective actions are taken and the aggrieved are compensated in a timely manner without hassle.”