Death trap

Patients who are victims of medical negligence suffer twice over in their fight for justice.

By Akshat Agarwal

Namrata Bhargav wondered why she was experiencing severe abdominal pain since delivering a baby through a caesarean section about six months back. Initially, she dismissed it as something normal, thinking it to be the after-effects of surgery. But when the pain persisted, she got worried. Unable to even breastfeed her newborn due to the incapacitating pain, Namrata decided to get a few tests done.

Following a CT-scan, she was horrified to know that there was a large cotton gauze, the size of a hand towel left inside her abdomen during her caesarean operation, causing an infection in her intestinal wall. And what was more shocking was that it happened at Fortis Hospital in Noida, that boasts of the best of amenities.

These shocking cases of medical negligence are on the rise. Horror stories of objects being left by careless surgeons inside patients and rodents attacking infants in hospitals are hitting the headlines on a regular basis.

There are few professions which have as much esteem and reverence attached to them as the medical profession. As a profession that deals with extremely sensitive matters of life and death, it is also one where utmost care and commitment is required. However, with the growth in professional medicine in the country, cases of medical malpractice or negligence are rising correspondingly.

Since a certain degree of medical expertise is assumed to be possessed by all professionals in the field, their offering of a service can be seen as an implicit undertaking to the patient of their adequacy and skill. Moreover, the fact that human lives are involved, makes this a delicate situation: a mistake or an oversight on the part of the professional can cause severe damage to the person of the patient. There have been many cases where the sheer carelessness of a trained individual responsible for the care of the patient has caused injury or death. In the US alone medicalnewstoday.com reports that 1,95,000 deaths occur every year due to medical malpractice or negligence. Malpractice in India is perhaps just as prevalent, but lack of reportage and documentation means that no reliable figures are available.

What is medical negligence?

Medical negligence, as the term suggests, is negligence in the field of medicine. It occurs when a healthcare provider, by some act or omission, fails to fulfil a duty owed to a patient, and thereby causes harm to the patient. The healthcare provider here might be a surgeon, a nurse, or any professional working in the medical field.

These are the essential factors for a claim of medical negligence:
A duty was owed: A legal duty exists whenever a hospital or healthcare provider undertakes care or treatment of a patient (for a payment)

A duty was breached: The provider failed to conform to the relevant standard care

The breach caused an injury: The breach of duty was a direct and proximate cause of the injury

Damage: Without damage (losses which may be pecuniary or otherwise), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damage can occur without negligence, for example, when
someone dies from a
fatal disease

Legally, such an act of negligence can be the subject of a civil suit for the recovery of damages. In cases where it leads to the death of the patient, criminal proceedings under Section 304A of the Indian Penal Code can be brought against the accused healthcare providers for negligently causing death.

However, it is no easy task to fight such a case. The law provides certain protections to medical professionals, on the grounds that such cases cannot be treated at par with ordinary cases of negligence. In Jacob Mathew vs State of Punjab, the Supreme Court laid down certain guidelines to be followed by the authorities if a complaint of criminal negligence comes up.

One, the police cannot proceed against a doctor who has been accused of medical negligence without obtaining a second opinion from a medical professional, preferably a government doctor. Two, the court will be bound to follow this procedure: it must seek the opinion of a qualified doctor to ascertain whether there has been negligence or not, as judicial officers can hardly be expected to be familiar with the nitty-gritty of medicine and medical procedures.

Finally, the police cannot arrest a doctor accused of negligence in a routine manner. This protects doctors from the constant
fear of arrest. The court reinforced this idea in Martin D’Souza vs Mohammad Ishfaq, where it said: “While this court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country, particularly after the medical profession was placed within the purview of the Consumer Protection Act.”

The bench, consisting of Justices M Katju and RM Lodha (now chief justice of India) went on to say in its judgement: “This (guidelines) is necessary to avoid harassment to doctors, who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameter laid down in Jacob Mathew’s case, otherwise the policemen will themselves have to face legal action.”

The same apex court, however, has also shown its willingness to grant large sums as compensation where legitimate cases of negligence have been proved. In a milestone judgement in October 2013, the Supreme Court awarded Dr Kunal Saha `6 crore as damages for the death of his wife Anuradha due to the negligence of a prominent doctor in Kolkata. She had a minor skin infection and the doctor prescribed steroids—to be taken twice a day. Normally, it should be given only once a week. This led to an allergic reaction—her skin started peeling off—and finally, her death.

After a gruelling 15-year legal battle, wherein the NRI doctor fought tirelessly for justice, the court ruled in his favor. But Dr Saha had a significant advantage over the average litigant, as his medical knowledge helped convince the Supreme Court. Moreover, he had the resources to fight the protracted case, which most of those who fall victim to medical negligence do not have. Nevertheless, this case set a precedent, where large sums, hitherto unheard of in Indian medical jurisprudence, could be awarded.
As increasing cases of negligence in India, even in expensive private hospitals, continue to rise, it becomes imperative to evolve a suitable mechanism for dealing with such complaints and claims. There is no doubt that there are a lot of frivolous and vexatious complaints against doctors, from which they must be safeguarded. However, it is essential that this be balanced with the interests and rights of patients.

The creation of a specialised tribunal is a solution suggested by many medical experts, and that includes the Indian Medical Association. Unlike consumer forums, which deal with the consumer complaints in general, such a forum would deal specifically with medical cases. This would allow for the appointment of medical experts as adjudicators, instead of their current role as amicus curiae or friends of the court. Such a framework can be created under the Consumer Protection Act through an amendment.

Until concrete steps are taken towards the creation of such a steady mechanism, the hundreds of cases of medical negligence currently in the backlog, as well as the new cases arising every day, will continue to be a tough battle for the victims. Perhaps more ominously, until greater accountability and harsher punishment for negligent professionals are enforced, the indifferent attitude of doctors, even in the highest places, will continue to endanger life and limb in India.