Appointment with Dr Death
The unprecedented Rs 11.5 crore award by Supreme Court in a medical negligence case is a dire warning to doctors and hospitals
The unprecedented Rs 11.5 crore award by Supreme Court in a medical negligence case is a dire warning to doctors and hospitals.
Major Pankaj Rai lost his best friend and wife, Seema, three years ago. There’s only one dream that has driven the 55year-old former Army officer from Bangalore ever since: Bring to book the hospital and doctors that put her through a pancreatic transplant when all she needed was a kidney dialysis.
Shishir Chand, 37, of Delhi is driven by an equally intense desire for retribution: His brother Vishal, just 33, died of a sudden heart attack in 2011, alone and far away from home at his new workplace in Jamshedpur. Only because doctors refused to consider his chest pain was a sign of heart attack and treated him for indigestion.
Ratna Ghosh, 56, admitted her sister, Swapna, at a local nursing home in Rishra near Kolkata for a carbuncle removal. She got her back with a swollen and blackened body, missing teeth and in coma. Physically and mentally challenged, as well as mute, Swapna never gained consciousness and died in 2008. Ghosh is waging a solitary fight for justice ever since.
The Supreme Court ( SC) has given them new hope. After fighting for 15 long years, US-based doctor Kunal Saha received ‘historic’ justice on October 24 for the medical negligence that caused his 36-year-old wife Anuradha’s death. It’s a landmark verdict that has, for the first time, ordered the errant doctors as well as the hospital to pay a compensation of Rs 11.5 crore (Rs 6.08 crore plus 6 per cent interest a year for almost 15 years), the highest compensation for wrongful deaths ever ordered in India’s history. The strongly worded 210-page ruling against AMRI Hospitals and three senior Kolkata doctors—Sukumar Mukherjee, Baidyanath Halder and Balaram Prasad—comes as a wakeup call for all. “It has been a long wait,” says Saha over the telephone from Ohio, US.
It was in April 1998 that Anuradha and Kunal Saha came to Kolkata on vacation. Within a few days, she developed rashes and fever. Dr Sukumar Mukherjee prescribed Depomedrol, 80 mg twice daily, for three days. “Anuradha basically received a dangerous steroid preparation at 20 times its maximum recommended dose,” says Kunal. Within three days, she was admitted to AMRI Hospitals. Another three days and her condition worsened. Her skin started to peel off and her entire body, except the skull, was denuded of skin. Nobody even thought of stopping the injection. What she was not treated for was her real condition: Toxic epidermal necrolysis ( TEN), a life-threatening skin condition usually caused by drug reaction. Anuradha
breathed her last at Breach Candy Hospital in Mumbai on May 28, 1998.
Kunal’s journey began in June. The state medical council gave the doctors a clean chit. But in 2003, a trial court found three doctors guilty and sentenced them to jail for three months. The physicians moved the Calcutta High Court, which set aside the court order. Kunal moved the Supreme Court, which found the doctors guilty in 2009. He appealed to the apex court again, seeking compensation of Rs 97 crore. “The system here treats patients like guinea pigs. I hope that changes now,” he says.
About time, too. In September, a doctor cut the intestine of a patient instead of her fallopian tube in Balasore, Odisha, by mistake; in June, a child got burnt due to a short circuit during an operation in Surat; a nurse put the wrong patient through a blood transfusion in Kozhikode in May. Medical errors are among top 10 global killers, says the World Health Organization. But now for the first time, Dr Ashish Jha from Harvard School of Public Health has quantified the magnitude of the problem. The report, Global Burden of Unsafe Medical Care, published in the September issue of British Medical Journal, shows India records 5.2 million medical injuries a year. They range from incorrect prescription, wrong dose, wrong patient, wrong surgery to wrong drug.
The medical fraternity is finally taking note. “Such complaints have been rising ever since the SC brought the patient-doctor relationship under the ambit of the Consumer Protection Act in 1995,” says Dr Girish Tyagi, registrar of Delhi Medical Council, the appellate authority for dealing with such cases in the NCR. “In the last two
years, the number of cases has doubled, from 15 a month to about 30. A lot of complaints are about overcharging, misbehaviour, needless procedures, fake doctors, non-specialists performing procedures beyond their expertise and wrong decisions with fatal consequences,” he adds. Although warnings and temporary suspensions are issued to errant doctors, deregistration for life is still not the norm, he points out.
In one corner of Indra Roy Road in South Kolkata, a brand-new office sports a new sign, People for Better Treatment ( PBT). “Every day we get four-five complaints from all across India,” says Malay Ganguly, the man who started the non-profit organisation PBT along with brother-in-law Kunal Saha in 2001. PBT has now turned into a mass movement against medical malpractice. To groups like
PBT, the biggest obstacle is the Medical Council of India ( MCI) and its state units. “They are known for protecting their peers,” says Ganguly. Section 8.2 of MCI’S Code of Ethics and Regulations states that names of suspended doctors must be widely publicised. “MCI and state medical councils never publicised such names,” he says. In a unique departure, on September 18,
MCI put out a public notification in a local newspaper in Delhi about four suspended doctors.
In medico-legal cases, however, part of the problem lies in the legal connotation of the word ‘negligence’. “The failure of a doctor and hospital to discharge their obligation is a civil wrong, called tort in law, a breach of which attracts judicial intervention by way of awarding damages,” says M.N. Krishnamani, president of the Supreme Court Bar Council.
In 1969, the SC laid down that the doctor owes to his patient certain duties pertaining to the decision whether to undertake the case, the treatment and administration of that treatment. It was in 1995, in the landmark case of Indian Medical Association vs V.P. Shantha, that the apex court declared that the patient is like a consumer and that the doctor renders ‘service’ and can be proceeded against for ‘deficiency in service’.
Over the years the SC has, however, given a varied interpretation of negligence. In the Poonam Verma vs Ashwin Patel case, 1998, the court held that for medical negligence to be the subject of criminal liability, the act had to be recklessness and deliberate wrongdoing. In 2004, the court ruled that criminal liability for a patient’s death could occur only for “gross negligence”. In 2005, indiscriminate prosecution of doctors for criminal negligence was held counter-productive by the court ( see box).
By 2009, however, the SC, sensing the public mood, came up with a series of judgments that ordered exemplary damages to victims. In Nizam Institute Of Medical Sciences vs Prasanth S. Dhananka, the court awarded young software engineer Dhananka an unprecedented compensation of Rs 1 crore, observing that in deaths or permanent injuries caused by reckless practice of medicine, the victim should be compensated not only for direct loss (salary) but also for non-pecuniary damages (pain and suffering). In the same year, the apex court redefined medical negligence to include new categories—medicine overdose, not informing patients about side effects of drugs, not taking extra care for diseases with high mortality rate and hospitals not providing amenities that are fundamental for patients— as in Anuradha Saha’s case.
In the last 15 years, while some doctors campaigned with the MCI and Indian Medical Association to address issues like negligence and corruption in the medical field to “regain people’s confidence”, others expressed fear that the Anuradha Saha case would make doctors think twice before treating “risky” patients.
India has few laws that regulate medical practice. Nor are there protocols in place in every hospital to ensure “rational medicine”. Till doctors decide to streamline their trade, patients will take recourse to law to punish an errant doctor. “Anuradha died in the most unbelievable manner,” says Kunal. “But now I believe she died for a bigger reason, so that thousands of Anuradhas can live.”