‘Some patients recover because they believe in doctors’
We are living in an age where the last profession which anyone would ever wish to get commercialized has now become commercialized. It is the medical profession. Thus, it has now fallen under the ambit of The Consumer Protection Act. This paper talks about how medical negligence is a violation of Human Rights and Right to health which is an implied Fundamental Right and falls under the extended view of Article 21 (Right To Life). It explains the meaning of medical negligence and gives an overview of its consequences. It throws light on the current conditions with respect to medical negligence prevailing in India through statistics. Recent landmark judgment given by the Supreme Court in two infamous Medical Negligence cases is discussed in detail. The meaning of informed consent and Protection of Doctors from unnecessary harassment. The paper is concluded by giving suggestions. The writing style adopted in this paper is descriptive and critical.
Human Rights are rights which every person is born with. It is permanent. Nobody can take it away from a person. Health of a person is the basis of his existence. A person lives longer if has good health. What if the health of a person deteriorates or if the person dies because of the carelessness of a doctor? His Right to Life, Right to Health and Human Rights get violated. Right to Health is an implied Fundamental Right under the extended view of Right to Life. According to Article 21, every person has the right to live with ‘Human Dignity’. Medical negligence has not only left people in worse medical conditions than they previously were but it has also been a cause of death of people with no serious medical ailments. Further we will see how it is a growing evil in a developing country like India.
WHAT IS MEDICAL NEGLIGENCE AND OVERVIEW OF ITS CONSEQUENCES
Negligence refers to the breach of duty by omission which a reasonable person would do or a wrongful action by a reasonable person who would not otherwise do. Medical Negligence is the negligence in the field of medicine, where the medical professional is negligent while dealing with his patients. However, the definition of medical negligence is not given in any of the laws in force in India.
There are different kinds of consequences that a medical professional can face if he is charged for medical negligence. The consequences can be civil in nature, criminal and can also lead to suspension of the medical practitioner.
Consequences for medical negligence are usually civil in nature. Negligence being a Civil wrong falls under Law of Tort. Monetary compensation can be claimed by the plaintiff in consumer forums also as the medical profession now comes under The Consumer Protection Act, 1986. Complaints can also be filed in Lok Adalats.
A Doctor can be Criminally liable under Section 304A of the Indian Penal Code. ( Death of a person by any rash or negligent act) , however, there must be “gross negligence”.
A Doctor can also be suspended if he is found of medical negligence. Disciplinary action can be taken against him.
For understanding the prevailing conditions in India with respect to medicine, we need to look at the statistics.
-98,000 people die in India every due to Medical Negligence
-According to WHO, Medical Error is the 10th killer in the world
-Only 3 big cases of medical compensation since 2010
-One Doctor per 1674 citizens in India, WHO norm 1:1000
-India needs to add 3 million Doctors and 6 million nurses over the next 20 years
-Less than 30 beds in 84% of the hospitals in India.
-India is short of 2.4 million Nurses.
INFAMOUS MEDICAL NEGLIGENCE CASES
CHHATTISGARH STERILIZATION CAMP CASE
In Bilaspur, Chhattisgarh, 13 women died in a sterilization camp in November 2014 and several others were hospitalized. The operations were carried out in an abandoned building and the equipment’s used were not sterilized, there was no adequate supply of water and the medicines used were contaminated.
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83 women were operated within 6 hours which is way above the recommended limit. The doctor conducting the operation, Dr. R K Gupta had not sterilized the syringes, sutures and used the same gloves for conducting the operations. According to Laboratory reports, this led to Septicaemia among seven women out of 13 and presence of Toxins (Zinc Phosphide or Rat Poison) were also found in the drugs given to these women. It was found out that the drugs given were procured from a local drug manufacturer. The quality of these drugs were not examined. This led to the suspension of RK Bhange, Chief Medical and a health officer of Bilaspur as he ordered the drugs. Dr. R K Gupta was released on bail after 27days of the incident.
There have been various sterilization camps conducted in Bihar, Jharkhand, Chhattisgarh where in women were operated by a single surgeon in disgusting conditions. It was conducted on school desks, abandoned buildings. As there was no electricity, flashlights were used and there was no supply of water. There have been deaths of several women due to lack of care, unsterilized and unsanitary conditions.
Keeping all this in mind an excellent judgement was passed by the Supreme Court of India on September 14th 2016, where the court has ordered the closure of all sterilization camps in the country within 3 years. This is a very progressive step taken by the Supreme Court which will help in reducing the deaths caused in sterilization camps. However, the time span of 3 years is very long and can lead to further abuse of women in camps.
The question that arises in this case is why the Doctor could not be criminally prosecuted.
The entire prosecution was declared as ab initio and void on technical grounds. There is a requirement of obtaining a prior sanction of the government. These sterilization camps are carried out under government schemes. No sanction granted by the government indicates their support for the doctor. Dr. Gupta blamed their seniors by saying that they were also involved in the wrong as they were the ones who had given him the targets which he had to achieve.
KUNAL SAHA CASE
In May 1998, Mrs. Anuradha Saha, Dr. Kunal Saha’s wife died after becoming a victim of TEN (Toxic Epidermal Necrolysis) who used to stay in USA had come to India to attend a wedding. Soon after, Anuradha Saha noticed rashes on her body and concluded that it could be an allergic reaction. The couple consulted Dr. Sukumar Mukherjee who was a doctor in AMRI Hospital, Kolkata. He prescribed Depomedrol which is an injection so that the long- acting glucocorticoid could relieve the inflammation caused in her body. It is a long- acting drug so there is a prescribed dosage of 40 to 120 milligrams at 104 week interval mentioned by the drug manufacturing Pharmacia. Dr. JS Pasricha of AIIMS has stated that usage of Depomedrol is for chronic diseases and not for acute diseases like TEN and must not be used twice in a day. Dr. Sukumar Mukherjee had prescribed 80mg of depomedrol twice a day for two days and also wysolone which being a steroid composes of methyl prednisolone. This was an excessive dosage along with this it was found out that emergency care was not provided, the nurses were not keeping watch on the patient and patients of TEN have to be kept in an ICU. However, a room was turned into an ICU by the hospital. All these reasons led to her death.
This was the first medical negligence case where the highest compensation was given in the civil court. Rs. 5.96 crore was the compensation given which after adding all the interest crossed Rs. 11 crore.
Dr. Kunal Saha wanted to criminally prosecute the doctors and the hospital under Section 304A of the IPC. But in the court it was said that, there is no substance for criminal prosecution because Doctors or Surgeons do not undertake that they will positively cure the patient. Human body is unpredictable and there are certain situations which are beyond the control of the doctor. It was difficult to conclude that the injection prescribed by the doctor, the dose of which was so excessive that it would amount to deficiency in service by the doctor. The hospital could not be charged criminally just because they were not having burn wards due to which the deceased suffered. This was also without substance. When a criminal appeal was filed in the Supreme Court, the appeal was rejected.
A Doctor is supposed to disclose all the facts to the patient. After disclosure of all the facts it depends on the patient whether to would want to go ahead with the treatment. There is a fiduciary relationship between a doctor and a patient. When the patient agrees for the treatment after listening to all the facts and the risks involved he is said to give an informed consent. However, if the doctor does not disclose all the facts and the risks involved in the treatment of the patient and the patients agrees for the treatment which he could have otherwise declined if the risks would have been disclosed. If the patient’s health would get affected by such a treatment, it may amount to medical negligence as there was no informed consent.
PROTECTION OF GENIUNE DOCTORS FROM HARRASSMENT
Just because a few doctors who have been negligent, all the doctors cannot to labeled as negligent. It is not only embarrassing for such doctors but also a form of harassment. Doctors are considered to be our saviors. From the time, the medical profession has come under The Consumer Protection Act, there have been a lot of complaints filed against the doctors. Because of this there has been a fear instilled in the mind of the doctors. For example, initially when a person had symptoms of a heart attack, a doctor would give them an injection of pethidine before sending them to the cardiac care unit so that they could save them. In few cases the patient died before even reaching the hospital. Now, as this profession falls under The Consumer Protection Act, the doctors who inject pethidine have been blamed if the patient dies, due to this many of the doctors have stopped injecting this medicine in cardiac arrest cases. Doctors who become reputed, treat their patients well due to which the patients start trusting the doctors. There are a lot of times wherein the doctors skip their lunch, family time and regular life just to save their patient’s lives. The Court takes strict actions against doctors who are negligent but genuine doctors who are sincerely dedicated to their work must be protected from harassment and embarrassment.
Public awareness must be created with regards to medical negligence. People must be aware of their rights and the actions which needs to be taken if there is a victim of medical negligence. Most of the people are not aware that a case can be filed against the doctor who is responsible for negligence and compensation can be claimed by the party affected. This can be proved by the fact that there have been only 3 major medical cases for compensation have been filed since 2010.
To understand this topic in detail the opinion of Dr. Pravin Kumar Rai, a medico legal, who was also an ex-student of Amity University has been taken. He opined that the nature of the medical profession is to save lives, doctors do not give their services to intentionally hurt any patient, they work in the good faith of the patient. Doctors cannot be criminally prosecuted is because their intentions are clean and the main ingredient of a criminal prosecution is mens rea. He is of the idea that it is extremely difficult to criminally prosecute a doctor where they can be held criminally liable only if there is “gross negligence”. The burden of proof lies in the person who files the case. Explaining further he said that the human body is unpredictable, every body is different. Where steroids are used to treat a patients sometimes a higher dose is given to the patient depending on his condition. Doctors are humans and not god. They too can make mistakes. Doctors are humans and not miracle workers. There are situations where the doctors gives his 100% to save a patients life but the patient unfortunately dies. This is the reality. This is life. However, nothing can restore a human life which has gone. No amount of compensation by the court in a medical negligence can restore the value of the life lost.
This article is authored by Pratima Sharma, student of B.Com LL.B at Amity Law School
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