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HindustanTimes Wed,17 Sep 2014

Medical negligence and criminal liability

Dr. Kunal Saha, PTI  Columbus, August 12, 2004
First Published: 19:51 IST(11/8/2004) | Last Updated: 17:52 IST(12/8/2004)

This is regard the recent SC ruling on "medical negligence"  and criminal liability for the erring doctors have raised vital questions related to the practice of medicine in India and the fundamental rights for life for the ordinary citizens in the country who have been falling victims in large numbers to the uncontrolled practice of medicine by the Indian medicos.

Many in the medical field, have tried to extract a positive impact of the SC judgment on the plummeting "doctor-patient" relationship across India. Some have even drawn conclusion that this judgment would help preemptively to prevent the "crisis" of excessive litigations against the doctors in the US and restore the confidence of the Indian healers. Arguments have been put forward to draw support from the recent changes in some states in the US medical jurisprudence to limit the level of liability of damages against the doctors.

The US scenario is largely unrelated to the issues discussed in the recent Indian Apex court ruling on "medical negligence". Several fundamental differences in the ways medicine is practiced in India and the US have made it abundantly clear that the same rules cannot be applied to solve the "crisis" in healthcare in these two countries. While doctors in the US have been facing a severe predicament because of an over-abundance of frivolous lawsuits from unscrupulous attorneys for financial compensation, excessive litigation against the medicos is hardly an issue in the Indian environment.

Unlike in most developed countries, ignorance about healthcare is still pervasive among the majority of the Indian population. Indeed, most victims of "medical neglect" in India hardly even realize when they fall prey to the wrongful medicine at the hands of their doctors. To bring justice to the errant doctors is practically beyond the means even of most affluent and educated people in India for reasons more than one. There can be no argument that the vast majority of the cases of genuine "malpractice" by the Indian doctors go unnoticed to all except probably the errant medicos themselves.

In spite of recent increase in public awareness about "medical negligence", only a miniscule fraction of the episodes of bona fide medical neglects even make it to the news. It is common knowledge that the Medical Council in India, the only legal body empowered to take disciplinary actions against the delinquent physicians, has virtually remained as a safe heaven for the errant medicos.

In the US, death from "medical negligence" is almost impossible to go undetected. Thus, any attempt to emulate the American way of practice of medicine for an Indian environment is likely to be misguided. A few bare facts would glaringly display the extreme level of disparity that exists in the practice of medicine between the US and India. Although no official figures are made available on the number of complaints of "medical negligence" that different Medical Councils in India receive each year, in the ongoing public interest litigation (PIL) at the Supreme Court brought by the "People for Better Treatment" (PBT) (a registered humanitarian organization established to support the victims of "medical negligence") against the Medical Councils in India (Supreme Court Civil Writ Petition No. 317 of 2000), the Apex court had sought for an explanation from all state medical councils about the number of complaints against the doctors that they received and actions taken in the past two decades. 

None of the state Medical Councils could provide a complete account for the past 20 years. A few councils have not even kept any record of complaints against the doctors for more than a couple of years while others have some complaints pending for decades. Indeed, the Medical Council of Kerala has listed a complaint filed in 1961 which is still pending. In an affidavit filed in 2001, the West Bengal Medical Council (WBMC) had listed a total of a mere 16 complaints filed against doctors in the previous 20 years, i.e. less than one complaint each year. 

Ironically, the WBMC found not a single doctor guilty for "medical negligence" in these 16 complaints. The Federation of State Medical Board (FSMB) in the US routinely list in their website (www.fsmb.org) the complaints filed and actions taken by different state medical boards (same as "medical councils" in India) in the country each year. In contrast to the Indian scenario, a state in the US comparable to the size of West Bengal would receive between 300-400 complaints against doctors each year and 5-15% of these complaints eventually resulted in "conviction" of the accused doctors. 

This simple math dose not require a genius brain for explanation and it poignantly points to the basic problem in the system of healthcare in India as it establishes beyond any reasonable doubts that there are virtually no "checks and balances" for the doctors in India. These numbers also explains why an observation may not be interpreted in the same manner for the vastly different medical systems in these two countries. Too many frivolous cases for financial damages against doctors were the primary reason why it may be necessary to regulate litigations for "malpractice" claim in the US. 

The suggestion that the Apex court decision also draws support from the recent laws of "capping" the maximum claim against the doctors in some states in the US is clearly not valid in this situation. The Supreme Court ruling has only disfavored the filing of "criminal" cases for wrongful therapy except in cases of "gross negligence".

Indeed, the Apex court's observation is likely to enhance filing of more litigations for financial damages against the doctors in India as it has clearly indicated that doctors should be held responsible to compensate the family of a victim in the event of "medical negligence" resulting even from a mere "error of judgment". The "crisis" of excessive lawsuits faced by many doctors in the US has no connection with the healthcare problems in India. It would be an utter distortion of truth to claim that too many frivolous cases are filed against the doctors in India. 

Indeed, the truth is almost the opposite - too many lives of innocent patients are being lost from reckless practice of wrongful medicines by the Indian healers who are fully aware that there is hardly any chance for them to ever face "real" justice under the protection of a medical environment which is heavily stacked against the ordinary people. In fact, in the history of independent India, not a single allopathic doctor has ever been convicted by the Apex court for "criminal" negligence. 

Though rare, doctors in the US have been put to jail for "criminal negligence" leading to the death of a patient in the recent years. The laws for conviction of a physician for "criminal negligence" under the Section 304A of the Indian Penal Code (IPC) have always mandated that the errant doctor has to be guilty of "gross negligence" and not a simple "error in judgment". From a practical point of view, there was nothing novel in the recent Apex court judgment even though the powerful medical lobby made it appear as if the Supreme Court has ruled that the healers of our country should be held above the "criminal" law. 

Unfortunately, a dangerous signal is likely to spread from this unscrupulous stance of the medical lobby for the practicing doctors in different corners of the country that may have devastating consequences on the hapless patients of India. The careless doctors are likely to become even more careless in the aftermath of such dubious claims by the leaders of the medical community and even more patients are likely to fall prey to the ruthless acts by these fearless doctors. 

There can be no dispute that even the judges at the Apex court had never fathomed about such unfortunate scenarios before passing this recent judgment. One can only hope that the medical leaders of our country would come back to their senses and would desist from promoting any ideas of an "untouchable" status for our healers.

(The writer is President, People for Better Treatment (PBT) and Asst. Professor, Children Hospital, Columbus. The views expressed here is his personal.)

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