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Saturday, Aug 24, 2019

The wait never ends:  Medical negligence complaints rise but justice eludes victims

Complaints of neglect rise by 30-40% over the past five years but less than 10% doctors are held accountable.

health Updated: Aug 30, 2017 09:07 IST
Rhythma Kaul
Rhythma Kaul
Hindustan Times, New Delhi
Less than 10% of doctors charged with medical negligence are proven guilty.
Less than 10% of doctors charged with medical negligence are proven guilty.(HT File Photo)

Sixty-five-year-old SP Manchanda has been fighting a long battle for justice since his daughter Nikita allegedly died due to medical negligence during child birth in May 2009.

A resident of north-west Delhi, Manchanda filed a first information report (FIR) at the Saraswati Vihar Police Station claiming negligence by hospital staff. Since then, it has been an uphill task. He has approached every possible department concerned to get the case moving.

“It is stuck in the Delhi High Court where the accused doctors went after Medical Council of India pronounced them guilty of negligence. The court stayed the matter saying a similar matter was pending in the Supreme Court on technical grounds and we should wait for the verdict in that case,” Manchanda, who lost his wife last year, told HT.

The hope to seek justice for his daughter has somewhat diminished.

“Even after all these years of single-mindedly pursuing the case nothing seems to have worked out. It’s not easy; you are required to leave everything else and pursue only the case. Also, you need to have strong financial backing as it costs a bomb to fight the case, which is not possible for a common man, especially a working one,” he says.

Rising cases

Cases of medical negligence are on the rise because people are becoming more aware about their rights and are raising a voice against suspected malpractice.

Sometimes, mistakes can be fatal. Gross medical negligence is a serious offence and punishable under the law.

When is a doctor responsible?
There is damage to organs due to negligence
A wrong course of treatment prescribed because of wrong diagnosis
When the treatment chosen is not the accepted or established medical norm
An instrument is left inside the body or a wrong part is removed
A hospital runs out of essential supplies, such as oxygen cylinders etc
Allopathic treatment is provided by practitioners of alternate medicine
Prescriptions, test reports, discharge summary or receipts are not provided

“Complaints of medical negligence have increased by 30%-40% over the past five years and each case takes at least a few years to be investigated,” says Dr Girish Tyagi, member, Delhi Medical Council (DMC), which has the mandate to probe medical negligence cases. It gets 20 to 25 complaints every month. “Of these, five or six are accepted for review, based on evidence,” says Dr Tyagi.

Complaints are on the rise all across India. Bihar Medical Council (BMC) has received 91 complaints since 2010, of which 47 cases are still pending at the hearing stage. Of the 268 cases filed with Andhra Pradesh Medical Council, action has been taken in 38 complaints. In Kerala, situation is better with 225 out of the 267 cases having been acted upon.

Long road ahead

Those who do file a complaint, have years of struggle ahead of them. Less than 10% of doctors charged with the offence are proven guilty.

The complaint is put before an executive committee, and if there is merit, another panel, including experts from the field to which the case relates, looks into the allegation. The second panel collects proof like patient records and scans.

In DMC, once the complaint is submitted, the case is likely to come up for hearing only after two to three years.

“If the committee feels that there is a case of negligence it is referred to the disciplinary committee. The disciplinary committee then has a hearing with the complainant, the hospitals and the doctors involved, after which it passes a judgment. This judgment then has to be approved by the general council of all 23 DMC members,” Dr Tyagi adds.

Doctors who are proven guilty usually get off lightly, with the punishment ranging from a strict warning to permanent cancellation of license to practice, which has not happened thus far.

A doctor is not negligent when
Several methods of treatment are available and the doctor chooses one
The disease is not cured
There is an error in judgment (versus wrong diagnosis)

In the history of medical negligence cases, the highest compensation of Rs 5.96 crore has been awarded to Dr Kunal Saha in 2013 by the Supreme Court of India, for which he had to fight for close to 15 years.

The US-based Indian-origin doctor had lost his wife to medical negligence by doctors at a Kolkata hospital during their visit to India in 1998.

Institute of Medicine & Law’s annual medico legal review held last year reported that Punjab, with 24% of all medical legal cases, was the top litigating state in the field of medical negligence. West Bengal, Maharashtra and Tamil Nadu follow with 17, 16 and 11% respectively.

Dr. K Senthil, former President, Tamil Nadu Medical Council, said, “We get some 20 to 30 cases per year, predominantly relating to alleged negligence by doctors. But in most of the cases, the complaints often disappear when asked for proof. In cases, where there is some element of proof, we do act.”

Better regulation

There is an urgent need to regulate India’s pluralistic medical landscape, especially when about 80% of the country’s healthcare delivery system is managed by the private sector.

Experts are of the opinion that regulatory bodies should be held accountable.

“It is mostly the state councils that hear cases and the Medical Council of India (MCI) comes into the picture only when the accused challenges the verdict or the state medical council is sitting over a verdict for long, which rarely happens,” said an MCI official.

Former MCI chairman, Dr KK Talwar, says, “Regulatory bodies have got diluted over the years and it is high time that these are revamped. As the public is becoming more aware, these bodies should be stricter and create a mechanism to build confidence among people.”

With the loss of faith in regulatory bodies, people are moving to courts for justice. “More than the backlog, it is also the prevalent belief that the investigation won’t be impartial because doctors are part of the investigating team and that is driving people away. To avoid that, one should try to have these bodies chaired by some ex-judge, or someone from the social sector or some ex public servant with a social standing,” says Dr Talwar.

When to go to a consumer court?
India’s Medical Council Act has provisions to take disciplinary action against erring doctors. Consumer courts provide an additional remedy for getting compensated under the Consumer Protection Act.
If a doctor or hospital is not found to be negligent in a criminal case, it does not affect the case under Consumer Protection Act as gross negligence and intent to commit a crime is the parameter in criminal cases.

Councils often tend to get frivolous complaints. “Most complaints we receive against doctors are frivolous in nature and have been dismissed by the Bihar Council of Medical Registration (BCMR),” says BCMR registrar Dr Sahajanand Prasad Singh.

To strengthen a case, there are certain steps a complainant must follow. “The first thing is to collect the in-patient file which will have details of what procedures were done ,” says Dr Tyagi.

How to avoid negligence

Communication or lack of it plays a crucial role in cases of negligence. “There needs to be better communication between the doctor and the relatives of a patient. If we don’t tell them about expected complications they’d not understand and confuse complications with negligence,” says former MCI chairman Dr SK Sarin.

Dr Sarin also stresses on the need to conduct an exit exam for MBBS doctors. “We need to have basic skills test for doctors, to check their clinical acumen. Mentor-mentee relationship can also be promoted so that there is someone supervising the treatment,” he says.

Lastly, a doctor should know when to seek help. “A doctor must know the limitations of their knowledge and when to call for assistance ,” says Dr Sarin.

This is Part 3 of a series on what ails India’s public health systems. In Part 1 and Part 2, we looked at India’s public health expenditure and the doctor-patient ratio in the country.

(Inputs from KV Lakshmana in Chennai, Ruchir Kumar in Patna, Ramesh Babu in Thiruvananthapuram and Srinivasa Rao Apparasu in Hyderabad)

First Published: Aug 30, 2017 09:03 IST

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