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

India Today - - INSIDE - By Da­mayanti Datta

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.”

AFILE PIC­TURE OFKUNALAND ANURADHASAHA

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