Medical Negligence Redressal Very Low In India Despite Huge Number Of Cases Filed

Even though thousands of medical negligence cases are filed in various consumer courts in the country, just 4,000 cases get resolved at Consumer Dispute Redressal Commissions at the state and national level annually.

This shows plight of people running from pillar to post seeking redressal of medical negligence cases. Medical malpractice occurs when a hospital, doctor or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of errors in diagnosis, treatment, aftercare or health management.

A doctor or other medical practitioner, among others, has a duty of care in deciding whether to undertake the case or not, duty in deciding what treatment to give, duty of care in administration of that treatment, duty not to undertake any procedure beyond his or her control, and it is expected that the practitioner will bring a reasonable degree of skill and knowledge and will exercise a reasonable degree of care, said Mahendrakumar Bajpai, advocate- Supreme Court, specialising in cases of medical negligence and director of Institute of Medicine & Law. 

Professional misconduct by medical practitioners is governed by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, made under IMC Act, 1956. Medical Council of India (MCI) and the appropriate State Medical Councils are empowered to take disciplinary action whereby the name of the practitioner could be removed forever or be suspended. 

Since 2012, only 167 errant doctors have been temporarily blacklisted by the MCI, with the duration of the suspension ranging from three months to five years. Not one doctor has lost his or her medical license permanently.

Pointing out some of the recent trends observed in medical negligence cases, Bajpai said “Hospitals have been found to frame legally untenable internal standard operating practices (SOP) which are later turned down by the courts as unacceptable. Patients allegations relating to improper advice for investigations and improperly done investigations, are rising exponentially for the second consecutive year, but the courts are generally not interfering with the doctor's decision.”

He further said patients' allegations relating to anaesthesia are rising steadily, especially about non-anaesthetists administering anaesthesia. Doctors across the country are now more proactive in defending themselves in legal proceedings. Some black sheep amongst doctors were found manipulating/fabricating medical records while some others drew the court's anger for trying to avoid legal duties and responsibilities, he added.

He pointed out one of the main causes of medical negligence is doctors' non adherence to Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002. It is learned that 90 per cent of doctors lack adequate information about the said regulations making them vulnerable in legal tangle over medical negligence. Most of the hospitals have not set up alternative disputes redressal mechanism to address medical negligence issues as per the Supreme Court order, he opined. 

Refuting his contention, Dr KK Aggarwal, past national president of Indian Medical Association, said “Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002 has been incorporated in curricula of medical courses to make physicians aware about their professional conduct.”

Dr Aggarwal attributed significant rise in private healthcare facilities, complicated cases and lack of public awareness over the years for increasing medical negligence cases in the country. 

He said suffering of ailment by the patient after surgery does not simply mean medical negligence. In the matter titled as “Dr SK Jhunjhunwala versus Mrs Dhanwanti Kumar & others., the Supreme Court vide judgement dated October 1, 2018 has held that simply proving the suffering of ailment by the patient after the surgery does not amount to medical negligence. The doctor can be held for medical negligence only if the suffering of any such ailment is because of improper performance of the surgery and that too with the degree of negligence on the part of the doctor.

The duo said implementation of Clinical Establishments (Registration and Regulation) Act will definitely lead to decline in medical negligence cases. Though the Centre has been pushing for the implementation of the Act which seeks to regulate all clinical establishments in India and set treatment guidelines for common diseases and conditions. The states have to ratify this law and implement it. About five states including Arunachal Pradesh, Rajasthan, Assam and Jharkhand and all Union territories except the NCT of Delhi have adopted and implemented the Act. Sikkim, Bihar, Mizoram, Uttar Pradesh and Uttarakhand have adopted the Act, but not yet implement it. Pharmabiz