In recent years, India has grappled with mounting medical negligence cases, which, at approximately 5.2 million per annum as per the National Library of Medicine, have reached alarming levels. Occasional incidents of attacks on hospitals and doctors by the attendants of patients or their friends and relatives due to perceived medical negligence have complicated matters.
The recent demise of Nirmal Choubey, younger brother of Union Minister Ashwini Kumar Choubey, allegedly due to lack of immediate attention at a hospital following his heart attack, and the death of television actress Chethana Raj allegedly due to complications following her plastic surgery, underscore the critical need for examining various aspects relating to medical negligence so as to properly fix responsibility.
Understanding medical
negligence
Medical negligence, which includes medical malpractice, occurs when a healthcare provider fails to meet the required standard of care, leading to harm or injury to the patient. In India, legal measures are in place to ensure patients receive proper compensation for any harm caused. The foundation of medical negligence law in India is based on tort law, emphasising the principle of ‘reasonable care’ that healthcare professionals must adhere to. Guidelines from the Indian Medical Council outline practitioners’ duties, including obtaining informed consent and maintaining ethical standards.
Patients seeking legal recourse for medical negligence in India can file complaints with state medical councils, consumer courts, or civil courts, providing details of the harm, breach of duty, and damages suffered. Notably, not all unfavorable medical outcomes result from negligence, as the complexity of medical treatment allows for various contributing factors. To establish negligence, it must be proved that the healthcare professional failed to provide treatment meeting the required standard.
Compensation for medical negligence cases in India varies based on the severity of harm, covering medical expenses, loss of income, and other damages. Examples of medical negligence encompass misdiagnosis, surgical errors, medication mistakes, failure to obtain informed consent, inadequate follow-up care, birth injuries, and anesthesia errors. Patients affected by medical negligence should seek legal advice to understand their rights and pursue compensation for the resulting physical, emotional, and financial damages.
A look at some incidents
In 2011, the AMRI Hospitals in Kolkata was in the spotlight due to a tragic incident. A devastating fire engulfed the facility, claiming the lives of 92 individuals. Investigations revealed lapses in safety measures and negligence on the part of hospital staff, sparking concerns about the overall safety protocols per se in hospitals.
Shedding light on more cases, sociologist Mukesh Soni, says: “In 2017, the Fortis Hospital in Gurugram faced severe criticism following the treatment of a seven-year-old dengue patient. The hospital’s billing practices came under scrutiny as they were accused of charging exorbitant fees for the child’s care, leading to public outrage. This case threw the spotlight on issues related to transparency and fair billing practices within the healthcare system. The same year witnessed another high-profile incident at Max Hospital in Delhi. A premature newborn, along with its twin, was erroneously declared dead. Subsequent events revealed that one of the infants was still alive, prompting questions about the hospital’s adherence to medical protocols and the accuracy of vital sign assessments.”
What does the law say?
In December 2023, the Indian Medical Association (IMA) expressed gratitude for the exclusion of medical negligence from severe criminal charges under the Bharatiya Nyaya Sanhita (BNS). While doctors are not entirely immune, the amended law reduces the maximum imprisonment for medical negligence to two years, aligning it with Section 304(A) of the Indian Penal Code. The IMA contends that distinguishing medical negligence from criminal intent is crucial, emphasising adherence to civil compensation laws. The amendment aims to provide a balance, allowing patients to seek civil compensation without branding doctors as criminals, fostering confidence in critical medical situations.
Lawyer Ambar Chaurasia explains, “The Supreme Court of India, in the case of M.A. Bivji versus Sunita and Others, reasserted the criteria for medical negligence, emphasizing a heightened standard for holding medical practitioners accountable. In India, the legal definition of medical negligence, not explicitly outlined by statute, pertains to actions deviating from standard medical practices that result in harm to the patient. Criminal consequences fall under IPC Section 304A, requiring the acts to be rash or negligent. Precedents such as Jacob Mathew and Kusum Sharma have set benchmarks for negligence, focusing on reasonable competence.”
The MA Bivji judgment addressed a complaint against a hospital regarding unjustifiable nasotracheal intubation. The court highlighted three pivotal elements in medical negligence cases: duty of care, breach of duty, and resulting damage. Importantly, the court underscored the need for specific evidence to attribute liability to the medical practitioner.
Advocate, Aashish adds: “The court emphasises a higher threshold for holding medical practitioners liable and stresses the need for specific evidence to impute liability. While acknowledging the noble nature of the medical profession and the challenges faced by practitioners, the court’s approach has been lenient. However, concerns arise over the lack of clear guidelines, leading to potential consequences for victims of medical negligence.”
Hospitals in India could face individual or vicarious liability for their services, being susceptible to charges of negligence and potential lawsuits in both criminal/civil courts as well as consumer courts. Recognising the prolonged nature of litigations in civil courts, medical services now fall under the Consumer Protection Act, 2019. This enables complainants to seek compensation for service deficiencies within a specified timeframe of 90-150 days, streamlining the resolution process.
When calculating compensation under the common law, the guiding principle is ‘restitutio in integrum’, which aims to restore the injured party to the position they would have been in without the wrong committed. This entails compensating for financial losses, future medical expenses, and the pain and suffering caused by the negligence of a doctor or hospital.
Unlike in the US, India lacks a jury system for determining culpability and compensation amounts. In India, the judge in consumer or civil courts has complete discretion over the compensation, considering the impact of the judgment, as it sets a precedent for the manner and quantum of damages awarded.
Statistics in India
According to the National Library of Medicine, approximately 5.2 million cases of medical negligence are reported annually in India, indicating a substantial increase over the years. Research suggests a notable 110% rise in yearly incidents, with a 2015 study revealing a staggering 400% surge in medical litigation cases, further emphasising the deteriorating nature of these scary situations.
A doctor and advocate practicing in the Supreme Court of India, who wishes to remain anonymous, shares: “India faces challenges in the realm of medical care, similar to global counterparts. Despite advanced nations grappling with medical issues, they excel in tracking and responding to problems, evident in the high number of lawsuits and compensations. In contrast, India’s medical negligence statistics, particularly in West Bengal, reveal inadequacy, with only 515 cases reported from 2001 to 2010, and a mere 9% dismissal rate for doctors. Although recent years have witnessed increased awareness, the National Crime Records Bureau’s death reports seem inconsistent, with 218 cases in 2018, 201 cases in 2019, and 133 cases in 2020. Some attribute the fluctuation to COVID impact on reporting, while others see it as a potential improvement in healthcare. However, incidents like the 2022 Amit Kataria case in Gurugram underscore the ongoing struggle.”
The medical fraternity’s response
Doctor Jagadeesh Kumar V, Consultant Physician, KIMS hospital, says, “Negligence is exponentially increasing in almost all sectors, and the medical domain too with no exception. The key observation goes to, ‘How do we define medical negligence’.
How can we label medical negligence?
“An accusation is not confirmation of medical negligence. The timing of a doctor’s consultation significantly impacts outcomes and the occurrence of negligence. Unfortunately, India, being highly populated and a developing country with limited electronic health records, faces challenges in efficiently validating reports, and reviewing patient files. Many doctors are compelled to see patients within unacceptable time frames, leading to a heightened risk of negligence. For a thorough examination, an experienced doctor ideally requires an average of 20 minutes per patient. The heavy workload placed on doctors substantially increases the probability of negligence.”
According to him, the medical industry encompasses a diverse workforce, ranging from watchmen to chairpersons, investors, promoters, doctors, nurses, housekeeping, phlebotomists, billing, insurance, counselors, and IT teams. However, the prevailing narrative that solely attributes medical negligence to doctors is unfair. Our medical laws need a more systematic evolution to comprehensively analyze and redefine medical negligence.
He amplifies: “It is crucial to recognise that medical negligence should encompass actions beyond doctors, extending to patients themselves. Often, patients refuse or challenge doctors’ instructions and concurrently engage in alternative treatments without notifying their healthcare providers. This situation creates an uneven burden, where allopathic doctors bear responsibility while patients freely combine instructions from various treatment modalities. A more nuanced approach is essential to address this complex issue in the healthcare system.”
Alternative medical practitioners often claim success in treating emergencies, despite rarely handling them. To understand the issues in the medical sector, we must address the commodification of medical education and healthcare. “Medical education is sold, health is sold, and seats in medical colleges are sometimes obtained without qualifying marks. This allows underqualified graduates to enter the healthcare system with no proper criteria. The blame for these ills lies on the system that permits such practices. Medical negligence is a complex issue, unfairly burdening doctors. Hopefully, the future will bring positive changes for society and aspiring young doctors,” concludes Dr Jagadeesh.
Highlighting the plight of hospitals in rural areas is essential in the context of medical negligence awareness. Dr Ramesh Kathuria, ENT specialist, asserts: “Many rural healthcare facilities face challenges like inadequate infrastructure, limited resources, and a shortage of qualified staff. This situation often leaves doctors in these areas feeling helpless, struggling to provide optimal care. By educating the grassroots-level functionaries about these challenges, we can foster a broader understanding of the complexities faced by healthcare professionals in rural settings, encouraging support for improved infrastructure and resources to enhance medical services and reduce instances of negligence.”
Citizens’ awareness
Implementing a comprehensive strategy can effectively raise public awareness about medical negligence by combining traditional and modern communication channels.
“Targeted public awareness campaigns can disseminate information through television, radio, and online platforms, educating the public about recognizing signs of negligence and understanding patients’ rights. Community workshops and seminars, led by healthcare and legal experts, have a potential impact of empowering the attendees with knowledge and addressing specific concerns,” observes Dr Rajni Sharma, a gynaecologist.
Distributing educational material in healthcare facilities and integrating information into healthcare-related apps can ensure individuals encounter relevant information in both physical and digital spaces. Collaboration with educational institutions can include modules on healthcare rights and ethics, ensuring future generations are well-informed. Partnerships with advocacy groups and the establishment of legal aid clinics can provide additional support and resources. “Media collaboration, such as investigative reports on negligence cases, can inform the public and hold healthcare institutions accountable. Continuous updates through various channels can keep the public informed about evolving standards, legal changes, and advancements in patient rights, reinforcing the importance of vigilance. This multifaceted approach can empower individuals to be proactive advocates for their own healthcare rights,” states Dr Rajni.
In 2019, the World Health Organization, ahead of launching a campaign on patient safety, in solidarity with patients on the very first World Patient Safety Day on 17 September, stated that millions of patients are harmed each year due to unsafe health care worldwide resulting in 2.6 million deaths annually in low-and middle-income countries alone. Most of these deaths are avoidable. The personal, social and economic impact of patient harm leads to losses of trillions of US dollars worldwide.
“No one should be harmed while receiving health care. And yet globally, at least 5 patients die every minute because of unsafe care,” said Dr Tedros Adhanom Ghebreyesus, WHO Director-General. “We need a patient safety culture that promotes partnership with patients, encourages reporting and learning from errors, and creates a blame-free environment where health workers are empowered and trained to reduce errors.”
Four out of every ten patients are harmed during primary and ambulatory health care. The most detrimental errors are related to diagnosis, prescription and the use of medicines. Medication errors alone cost an estimated US$ 42 billion annually. Unsafe surgical care procedures cause complications in up to 25% of patients resulting in 1 million deaths during or immediately after surgery annually.
