Medical malpractice: India
This is a collection of articles archived for the excellence of their content. |
Contents |
Introduction
Raj Chengappa
November 15, 2013
For years, the medical profession in India had neglected the warning symptoms. Shielded by flaccid regulatory authorities and a near comatose judicial system, the four lakh-strong community of doctors was almost immune to charges of malpractice.
Even when the problem grew to serious proportions, they failed to resort to corrective surgery. Now, aggrieved patients are beginning to wield the scalpel. Especially after a ruling made by the National Consumer Disputes Redressal Commission that medical services were liable under the powerful Consumer Protection Act of 1986.
Here's an alarming statistic: 98,000 deaths from medical injuries occur in India every year, reports an ongoing NABH study. Here's another: medico-legal cases have gone up by 400 per cent in the Supreme Court in the last 10 years, according to legal resource, Manupatra. Patients are afraid of an uncaring medical system. Doctors are terrified of assertive patients. Hospital life is under scrutiny, and with it the authority and autonomy of doctors. "Doctors are afraid," says Dr Arvind Kumar, chief of robotic and chest surgery at Sir Ganga Ram Hospital in Delhi. "The trust factor between doctors and patients is slowly coming down and there is no solution in sight."
"Negligent doctors need to be punished. But medical errors are also often 'system errors' and not the result of an individual physician's negligence," says Dr K. Srinath Reddy, former head of cardiology with AIIMS and currently president of Public Health Foundation of India. The scientific basis of good clinical practice depends on combining a well-gathered history of illness, physical signs and results of tests into an estimation of probabilities of possible diagnoses, he explains. While medicine is not an exact science, which always gives a 'yes' or 'no' answer, the 'art' of medicine lies in converting scientific evidence to standard management guidelines created by expert bodies, for all practitioners to follow. "Apart from minimising errors and avoiding unnecessary tests and treatments, adherence to guidelines forms the best defence against allegations of medical negligence," he adds.
The buzz among doctors is also on crippling compensations. In the latest issue of the British Medical Journal, Indian doctors have come head to head. "In India, healthcare is supposed to be regulated by a quasi-judicial medical council that has failed to protect against widespread negligent and irrational treatment," writes Dr Kunal Saha, a US-based doctor who received 'historic' justice-an unprecedented compensation of Rs.11.5 crore-in October 2013, for medical negligence that caused his 36-yearold wife Anuradha's death in 1998. "Large payouts awarded by the courts of law may be the only way to instill accountability for wayward doctors and to save lives."
A bench of Justices Dalveer Bhandari and H.S. Bedi had pointed out the need to protect doctors from "malicious prosecution": "It is our bounden duty and obligation of the civil society to ensure that medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension."
Change will require looking at medical practice and malpractice in a new light: not just at material costs, but that the trust that exists between patients and doctors remains sacred.
Negligence
Compensation for medical negligence
Person blinded as baby by doctors
The Times of India, Jul 02 2015
SC awards Rs 1.8 crore to teen blinded as baby by doctors
Dad fought for 18 years after getting just Rs 5L
Dhananjay Mahapatra
Ordering a 36-fold 4 increase in compensation, the Supreme Court asked the Tamil Nadu gov ernment and a state-owned hospital at Egmore in Chennai to pay Rs 1.80 crore to the parents of a child who had lost her eyesight within a year of birth 18 years ago due to the negligence of doctors.
The child was born 10 weeks prematurely to V Krishnakumar and his wife in August 1996 at the government hospital for women and children. But the neonatal expert and the paediatrician at the hospital never warned the parents that all babies born prematurely were prone to retinopathy of pre maturity (RoP) and that if early preventive measures were not taken, it could re sult in blindness. The parents visited US for surgery But the light in her eyes could not be restored, which had gone out because of medical negligence at the government hospital at the time of her birth. Krishnakumar filed a case under Consumer Protection Act in February 1998 before National Consumer Disputes Redressal Commission in New Delhi seeking Rs 20 lakh towards airfare, medical expenses and stay in the US, Rs 30 lakh towards future treatment and Rs 50 lakh for pain, loss and mental agony .
Though a medical team from AIIMS confirmed negligence on part of the hospital and the two doctors, the national commission awarded just Rs 5 lakh as compensation.
Appearing for Krishnakumar, advocate Nikhil Nayyar argued that the commission failed to take into account the actual expenses incurred by the parents for the treatment of the girl. Nayyar also said the award failed to consider the money required for future treatment and compensation for the prolonged period of mental agony of the child and her parents.
A bench of Justices J S Khehar and S A Bobde ordered the state and other respondents to pay Rs 1.38 crore as compensation and Rs 42 lakh as reimbursement of medical expenses, taking the total award to Rs 1.80 crore.
Person born despite mother’s tubectomy
February 6, 2022: The Times of India
The Madras HC has directed the Tamil Nadu government to provide free education till graduation to a girl child born after a botched family planning procedure on her mother in a staterun hospital. “All the school and other fees paid shall be refunded by the state government; all her expenses on books,stationery, uniformsand other miscellaneous educational expenses, would also be met by the state,” Justice Krishnan Ramaswamy said.
The HC also told the state to pay Rs 10,000 a month for expenses till the girl is 21.
Free care by doctor: can’t file consumer case after that: SC
Sheetal Joon, Dec 9, 2021: Latestlaws.com
The Supreme Court has reiterated that a Doctor providing free medical services on behalf of the hospital cannot be sued under Consumer Protection Act for deceptive practices.
The Bench comprising of Justice Hemant Gupta and Justice V. Ramasubramanian has established that such service wouldn't fall within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986 and the ground that the medical officers are salaried employees of the Hospital, doesn't hold.
The Court was dealing with a plea assailing the NCDRC order in which the National Forum has upheld a District Forum decision wherein it dismissed Appellant's petition holding that she doesn't fall under the definition of a "consumer" within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act.
The Court observed that in terms of Section 2(1)(d)(ii) of the Act, a Consumer is the one who hires or avails of any services for a ‘consideration’ which has been paid or promised or partly paid or partly promised.
"Since the admitted case of the appellant is that the appellant has not paid any consideration for availing the services of the respondents - doctors and the nurses, she would not be covered under the definition of consumer to avail the remedies under the Act.”
The Court rejected the contention of Appellant's Counsel that that payment for service availed is not a necessary ingredient to file a complaint under the Act and relied on a receipt of service-charge while citing SC Judgement in "Indian Medical Association Vs. V.P. Shantha & Ors, 2011 Latest Caselaw 410 SC".
The Court stated that the above ruling isn't tenable as it specifies the below:
"A medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the Hospital does not fall within the ambit of 2(1)(0) of the Act being free of charge, the same service cannot be treated as service under Section 2(1)(0) for the reasons that it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. It was thus concluded that the services rendered by employee-medical officer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1)(0) of the Act."
The Court further observed that Consumer Court isn't the right redressal forum to provide her the remedy.
"In fact, in a common written statement filed, an objection was raised that the appellant should file a suit in a competent Civil Court by depositing proper court fee and not in Consumer Court as the suit is not maintainable before the Consumer Court."
Non-availability of operation theatres: SC
Utkarsh Anand, Dec 2, 2021: The Hindustan Times
Doctor can’t be held guilty of negligence just because a patient died: Supreme Court
The bench said: ‘In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable...’
No doctor can assure life to his patient but can only attempt to treat everyone to the best of his or her abilities, said the Supreme Court, as it underscored that a doctor cannot be held guilty of medical negligence just because a patient has not survived.
“There is a tendency to blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family members to not accept the death in such cases. The increased cases of manhandling of medical professionals who worked day and night without their comfort has been very well seen in this pandemic,” lamented a bench of justices Hemant Gupta and V Ramasubramanian.
The bench added: “In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable...The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.”
It underlined that there must be sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. “Every death of a patient cannot on the face of it be considered to be medical negligence,” said the bench.
The court said this while allowing an appeal filed by Bombay Hospital and Medical Research Centre against the National Consumer Disputes Redressal Commission’s order to pay ₹14.18 lakh to the family of one Dinesh Jaiswal, who died in June 1998 following unsuccessful surgeries of his gangrene in his limbs.
The family attributed Jaiswal’s demise to negligence in conducting surgeries, absence of the treating senior doctor, lack of operation theater, and a broken-down angiography machine. The hospital, however, refuted all allegations, stating the best possible treatment by present medical professionals and within the resources available was provided.
In its 2010 judgment, the national consumer commission invoked the principle of “res ipsa loquitur” (mere occurrence of certain event can lead to an inference of negligence of the other side) to hold the hospital guilty of medical negligence. But the top court on Tuesday set aside this judgment, noting the order suffered from legal as well as factual infirmities.
“It is a case where the patient was in serious condition impending gangrene even before admission to the hospital but even after surgery and re-exploration, if the patient does not survive, the fault cannot be fastened on the doctors as a case of medical negligence. It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is expected to provide reasonable care which is not proved to be lacking in any manner in the present case,” held the bench.
The court underlined that there was never a stage when the patient was left unattended and mere fact that the main treating doctor had gone abroad cannot lead to an inference of medical negligence because the patient was admitted in a hospital having 20 specialists in multi-faculties.
“The patient was in a critical condition and if he could not survive even after surgery, the blame cannot be passed on to the hospital and the doctor who provided all possible treatment within their means and capacity,” it said.
On the aspect of delay in re-exploration after the initial surgery threw up complications due to non-availability of an operation theater, the bench noted that it was only a matter of chance that all the four operation theatres of the hospital were occupied when the patient was to undergo surgery.
“We do not find that the expectation of the patient to have an emergency operation theatre is reasonable as the hospital can provide only as many operation theatres as the patient load warrants. If the operation theatres were occupied at the time when the operation of the patient was contemplated, it cannot be said that there is negligence on the part of the hospital,” it said.
The court added that a team of specialist doctors was available and also attended to the patient but “unfortunately, nature had the last word” and the patient breathed his last. “The family may not have coped with the loss of their loved one, but the hospital and the doctor cannot be blamed as they provided the requisite care at all given times,” it maintained.
The deceased’s family was paid ₹5 lakh as interim compensation by the top court in March 2010 when it had agreed to examine the hospital’s appeal. The bench said that this amount shall be treated as ex gratia payment to Jaiswal’s family and will not be recovered by the hospital.
Guidelines
Patients' consent essential before invasive procedures
Holding that a patient has an inviolable right with regard to his or her body , the National Consumer Disputes Redressal Commission has said that doctors must take consent of a patient or his family members for any invasive procedure during treatment.
A bench of Justice Ajit Bharihoke and Anup K Thakur said provision of taking consent could be overlooked only if urgent intervention was required to save the life of a patient. It held Delhi-based Hospital Sitaram Bhartia Institute of Science and Research guilty of negligence by not taking consent before inserting a catheter for central venous line procedure on a patient and directed it to pay a compensation of Rs 7 lakh to him.
“Unless the procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay the procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without consent of the patient. In the instant case, the insertion of catheter by Central Venous Line procedure being an invasive procedure carrying certain risk of complication, including injury to the jugular vein or bursting of the blood cells, the team of doctors was legally required to obtain consent of the patient,“ it said.
Advocate Nikhil Jain, appearing for the patient, contended that the doctors had not taken consent of family members and alleged that due to their negligence, the jugular artery was ruptured resulting in profuse bleeding and he had to be shifted shift to another hospital for treatment.
The hospital, however, said procedure of insertion of CVL in the patient's neck was a routine procedure like giving injection and consent was not required as it was not a surgical or invasive procedure.
Refusing to accept its plea, NCDRC said there was no merit in the contention and putting CVL in the body of a patient could not be equated with ordinary procedure.
“A central venous catheter (CVC) al so known as central venous line or central venous access catheter, is a procedure in which catheter is placed into a large vein. A catheter can be placed in veins in the neck, chest, groin or through veins in the arm. It is used to administer medication or fluids that are unable to be taken by the mouth. From the record it transpires that in the instant case, the CVC was tried to be placed by the team of doctors in the internal jugular vein, which went wrong resulting in injury to the vein and excessive bleeding. The aforesaid procedure obviously is an invasive procedure which admittedly carries the risk,“ it said.
“It is not the case of the hospital that there was an emergency threatening the life of the complainant, which could justify the procedure to save the life without seeking consent,“ it said.
The hospital, however, said it may approach the Supreme Court. “We haven't received the copy of the order yet.After seeing the order, if order is adverse we will approach the Supreme Court,“ said Dr Shubhra Verma, General Manager (Operations), Sitaram Bhartia hospital.
Patient’s consent not essential for medical negligence
Saeed Khan, Sep 9, 2022: The Times of India
AHMEDABAD : The ambit of a patient’s consent to surgery cannot be stretched to “cover” a doctor’s “negligent and reckless acts”, the Gujarat high court said while upholding the criminal prosecution of two orthopaedic surgeons on a complaint filed by IPS officer Satish Verma.
Verma, a 1986-batch IPS officer, was probing the Ishrat Jahan case when an allegedly botched hip surgery by the two surgeons in 2012 left him with a lurching gait and made even walking difficult. He allegedthat the surgery meant to repair a hip fracture ended up shortening his left leg, causing him to lose balance.
A case filed by the officer in a magisterial court sought Dr Jyotindra Pandit and Dr Rikin Shah’s prosecution for “causing grievous hurt through rash and negligent acts that endanger life”.
Rejecting the doctor duo’s petitions challenging their prosecution on the ground that the patient had given his consent to the surgery, Justice Nikhil Kariel said “improper fixation of an implant” was the “immediate and natural conse-quence of their negligent act”.
“Instead of rectifying the erroneous fixation, the doctors appeared to have misguided the complainant by informing him that all was well. . . (such) acts on the part of the doctors reveal a culpable state of mind and (this) could come under the ambit of criminal negligence. ”
The magisterial court had ordered the two surgeons’ prosecution in 2014, following which the latter moved the HC, claiming there was no negligence on their part. They said Verma’s initial complaint to the national consumer forumled to a panel of seven doctors from AIIMS Delhi probing the case and giving them a clean chit.
The court didn’t receive a copy of the report.
On the doctors’ contention that the patient signed the consent form, the court said consent was for the procedure, based on the knowledge that the surgeons would exercise the requisite skill. “Had the implant failed, the case would not have fallen in the ambit of negligence, but the scope of consent for the operation can’t be and ought not to be permitted to be enlarged to cover negligent and reckless acts,” it said.
Removal of uterus to save life not medical negligence
In a landmark judgment, the National Consumer Disputes Redressal Commission (NCDRC) – the apex body of consumer disputes redressal in the country – has held that if hysterectomy is done to save the life of a patient, then it is not medical negligence and denied compensation to a woman who said removal of uterus had deprived her of becoming a mother again.
In 2002, a woman’ uterus was removed post childbirth owing to her medical complications. She moved NCDRC seeking Rs 35 lakh compensation from the doctors who performed the surgery on the ground that she had been deprived of becoming a mother in future.
A bench of Dr S M Kanitkar and Dinesh Singh noted both the mother and child then born were leading a normal life. “We do not find any deficiency/negligence in removal of uterus, as it was essential in that condition to save the life of the patient – mother,” the bench said.
The commission further stated that as the patient’s ovaries had been left intact, she hadn’t lost the her chance to have another child totally as it was possible through advanced medical techniques like assisted reproductive technology or surrogacy.
In her complaint, the woman alleged that the consent of her family members was not obtained by the doctors before the removal of her uterus. It was also claimed that her attendants were humiliated by the doctors and their staff.
The doctors, on the other hand, denied any deficiency or negligence on their part. As per their claims, they had conducted a normal delivery and a healthy child was born. During the procedure of suturing, the woman’s condition deteriorated. Despite their efforts to stop uterine bleeding, the doctors were unable to control it. By then the woman’s condition had turned serious. Her life had to be saved at any cost, the doctors said. “Therefore, the emergency hysterectomy was performed. It was not a medical negligence,” it was submitted. The commission found the complaint to be “frivolous and vexatious”. It said, “We are, however, refraining from imposing cost.”
Leaving piece of drill in patient tolerable
A consumer forum has absolved a doctor of the charge of medical negligence for inadvertently leaving a fragment from a drill, which broke off during surgery , in a patient's elbow. The forum quoted medical texts to say that instruments break during operations, and that the fragments left behind are “well-tolerated by the human body“, adding that additional surgery to remove them is not justified. Petitioner V Vasudevan had moved the district consumer disputes redressal forum against Dr Sudhakar Williams, seeking
compensation for medical negligence.
Vasudevan said he was admitted to Dr Rangarajan Memorial Hospital, Anna Nagar West, after an accident in April 2009. Around 30 months after the surgery on his right elbow, Vasudevan, who said he suffered continuous pain in its wake, consulted another doctor. An X-ray of the elbow showed a fragment from the drill lodged in his bone, and Vasudevan underwent surgery in another hospital to have it removed. In his defence, Williams said Vasudevan experienced pain because of injuries sustained in the accident. The doctor's counsel said that medical literature stated it was common for small pieces of the surgical drill to break and get lodged in the bone.
A bench comprising forum president K Jayabalan and member T Kalaiyarasi noted that Vasudevan had not provided any evidence to prove that the fragment caused him any injury .
Sex between doctor, patient
Unethical even if consensual: MCI
Chaitanya.Deshpande, April 18, 2020: The Times of India
Sexual activity between doctor and patient, even if consensual, will be against good medical practice, says the ‘guidelines on sexual boundaries for doctors’ adopted by the Medical Council of India (MCI). Even if it is the patient who attempts to initiate it, it will be unethical for a doctor to enter into such a relationship. A relationship with a former patient too is discouraged and can be construed unethical.
The guidelines, framed by the Indian Psychiatric Society, are gender neutral and have been posted on the MCI website.
“We were forced to form some guidelines after the Delhi high court questioned us about MCI’s rules against sexual misconduct. It was acting after taking suo motu cognisance of a case involving a doctor of Indian origin in the US in 2017. The doctor was earlier registered with MCI. The court directed us to adopt the existing guidelines of IPS after examining them,” a member of MCI’s ethics committee told TOI.
However, academicians, said there was nothing new in the guidelines. Many of these points are taught in medical ethics and medical etiquette to every doctor during their MBBS course, said Dr Ajit Pathak, controller of examination, Maharashtra University of Health Sciences.
