Medical negligence and exploitation rampant
By Nantoo Banerjee
Who is worried about the death of thousands of people of all ages in the country’s public and private hospitals, health centres, nursing homes and clinics due to medical negligence, staff cruelty and exploitation? Not our lawmakers, for certain. The government, very often, treats the cases of such deaths as casually as those in road or rail accidents. Even the judiciary’s hands are generally tied in the absence of strong legal deterrent to hand down exemplary punishments to offenders be they health administrators, doctors, surgeons, anesthetists, nurses or government inspectors. Until a decade ago, Indian society looked at death and disability by medical negligence, wrong treatment and cruelty rather philosophically blaming destiny. The public attitude is changing. Medical negligence now account for the second largest number of pending cases before the country’s various consumer courts, cheating by real estate dealers and promoters being the No. 1.
The immediate provocation for revisiting the issue of ‘medical negligence’ is the 2nd doleful anniversary of the worst case of medical negligence and staff cruelty at the Kolkata-based high-profile AMRI Hospitals where 93 ‘in-patients’ died the most horrific death on December 9, 2011, in their chambers, beds and critical care units in a late-night fire and asphyxia. The skeletal night duty hospital staff, including junior doctors and security men, had no authority of evacuate or release the patients without settling their bills. High-cost medicare at AMRI offered no emergency exit for 93 admitted patients who were forced to die in engulfing flame from burst oxygen cylinders illegally stockpiled in the basement car park.
The state government declared a paltry compensation of Rs. 3 lakh each and the AMRI Hospitals management almost an equal amount to the next-of-kin of the victims. According to reports, only around 50 per cent of the compensation claims have been settled so far. Some of the compensation receivers decided to use the amount to sue the AMRI management and the state seeking much higher compensation and strong punishment to the private corporate hospital management. The latest Supreme Court judgement awarded a US-based Indian doctor, Kunal Saha, a record compensation of Rs. 5.96 crore in a case of medical negligence that resulted in his wife’s death. The NRI doctor doggedly fought the case for 14 years at various levels of judiciary. At one stage, the case was even dismissed and the complainant was slapped a ‘penalty’ for making those ‘allegations.’
The Supreme Court ordered the compensation which in effect exceeds Rs. 11 crore, taking into account the simple bank interest on the penalty amount over the years, for the death of his wife, Dr. Anuradha Saha, clearly sending out a message that it was not about Anuradha Saha alone. “We, therefore, hope and trust that this decision acts as a deterrent and a reminder,” it said. On a private visit to Kolkata, Anuradha Saha developed skin rashes and fever. A well-known physician Dr. Sukumar Mukherjee prescribed a drug for her and she was later admitted to the AMRI hospital under the care of three other physicians. Soon her skin started to peel off and she was diagnosed with a life-threatening condition caused by drug reaction. She was removed to Mumbai’s Beach Candy Hospital in critical state and died, subsequently. Dr. Kunal Saha sought compensation of Rs. 200 crore. He would have probably asked for and received a much higher compensation if it happened in the US where medical negligence is a highly punishable offence.
The legal journey and expenses involved to secure similar ‘exemplary compensation’ by relatives of AMRI fire victims from the hospital management raise little hope as the Indian law on medical negligence itself is absolutely archaic, weak and highly favourable towards doctors and hospital establishments than towards their victims. There is little sting in the 253-year-old British-made Indian Penal Code (IPC) dealing with ‘medical negligence’, the continuing validity of which has never been questioned by our lawmakers in Parliament, allowing the country’s corrupt and chaotic health administration system get away with blue murder. The IPC of 1860 contains the law of ‘medical malpraxis’ in India under sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338. A physician can be charged with criminal negligence only if it can be proved that the patient’s death was due to the result of his malicious intention, or gross negligence.
In such cases, all that an accused physician has to prove is that he used ‘reasonable and ordinary care’ in his patient’s treatment to the best of his judgment. He is, however, not liable for an error in judgment. The law expects a duly qualified physician use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cure. It is recognized that criminal liability of a physician may result from a high degree of negligent conduct. What the IPC calls criminal negligence is largely a matter of degree carrying no precise definition. To prove a case of criminal negligence of a doctor is like chasing a mirage.
A doctor can be arrested under IPC section 304-A, which is a bailable offence. If he is convicted under this section, he gets a maximum two years’ imprisonment or fine or both. But, if the patient is alive even with loss of limb or limbs due to medical negligence, the doctor is charged under sections 337 or 338. The punishment under section 337 is up to six months’ imprisonment or fine of Rs. 500 or both. Section 338 doubles the quantum of punishment – one year’s jail or fine of Rs. 1,000 or both. Few will disagree that in the 21st Century context and with the massive advancement of medical sciences that has taken place since the World War II, increasingly focusing on diagnostic precision, the use of highly sophisticated instruments and failsafe treatment, the merit of a case of careless medical, surgical or hospital procedures causing loss of lives or limbs can’t be adjudged under a 253-year-old law. The inadequacy or incompetence of Indian law to effectively deal with growing cases of medical negligence coupled with the nexus among dishonest doctors, public and private hospitals, nursing homes, diagnostic labs, drug and equipment peddlers, etc. and the poor supervision by the government to regulate the health care sector are providing protective shields around those, whose collective goal is to fleece customers or patients at any cost. Proper medical attention is rare under the existing environment.
The unfortunate part is Kunal Saha, himself a medical scientist, failed to save the life of his dear wife, who became a victim of medical negligence and drug experiment.
In last few months, at Pune alone, 11 illegal nursing homes, all boasting the services of eminent doctors and consultants were ‘unearthed’ by the Maharashtra government. In fact, a good part of the healthcare business across the country is illegal. Thanks to the soft attitude of the state, Parliament and justice system to healthcare-linked corruption and malpractices, health administrators are becoming increasingly careless and even monstrous. As usual, the common man is at the receiving end. (IPA)