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Legislation around medical negligence - is it in need of a fix?

Wed, 17/01/2024 - 16:09

The Tamil Nadu State Consumer Disputes Redressal Commission (TNSCDRC), on 8th November, 2023 ordered the Madras Institute of Orthopaedics and Traumatology Hospital (MIOT) Hospital, to pay a compensation of rupees 20,00,000 to complainant Shanthi Kalai Arasan, towards medical negligence.  Over the eight years,  Shanti has been fighting for justice, in the wake of her husband Kailai Arasan's death. 

Medical negligence refers to the dereliction of duty or lack of reasonable care and diligence on the part of a medical practitioner, leading to an injury to his/her patient. An interpretation of ‘reasonable care’ depends solely on the judicial interpretations of various courts of law. Negligence can occur during any part of medical treatment, from diagnosis to treatment.  Examples of negligence could include improper or delayed diagnosis, medical equipment contamination, incorrect surgery, wrong dosage of medication etc. In each of these cases, poor outcomes to the patient could have been averted, had the medical professional adhered to standard protocols of care.  Medical negligence is an offence under the law of torts, Indian Penal Code, Indian Contracts Act, and Consumer Protection Act 2019.

The MIOT hospital was penalised as it failed to shift its ICU patients in response to flood warnings. In December 2015, several flood warnings had been issued by authorities for the city of Chennai. The hospital is sited on the banks of the Adyar River, and therefore flood prone. More significantly, the hospital’s power backup units and oxygen plant were situated in the basement of the hospital.  The hospital had failed to anticipate the consequences of flooding, particularly of its very vulnerably situated basement, and move patients proactively to other hospitals with similar facilities. This would have counted as reasonable care.  As the basement flooded, it led to failure of backup power, and  the failure of critical life support systems, including ventilators. This caused the  tragic deaths of 18 patients, including Shanthi's husband. To add insult to injury,  Shanthi was not aware of her husband’s death until she came across a media report about the incident. 

Subsequent to the event, she  approached the State Commission and filed a complaint against the hospital.

Her complaint highlighted inaccuracies in the death certificate, attributing the  death to underlying ailments instead of acknowledging the lack of ventilator support as a result of flooding. 

The Commission, in the present case, confirmed that this was a clear case of administrative negligence (and not negligence of the medical professional per se) resulting in  the death of 18 patients,  and therefore falling  under the remit of the Consumer Protection Act.

The hospital contended that the flooding of the basement floor was beyond their control. The Commission rejected this contention and observed that the administration should have taken note of the heavy rain warnings given by the meteorological department as well as previous weather conditions and should have shifted their patients to other hospitals where ventilator support could have been provided. 

This is not an isolated case of  medical negligence; around 5.2 million cases a year, ranging from incorrect prescription, wrong dosage, and wrong patient or wrong surgery are being witnessed in India

The state of medical negligence proceedings in India 

The legislation around medical negligence attempts to strike a delicate balance between the responsibility and autonomy of a doctor to make difficult decisions, and the rights of a patient to be dealt with fairly. The burden to prove medical negligence is placed squarely on the shoulders of the patient. This can unfairly pitch a vulnerable patient against the more powerful medical fraternity (powerful in terms of knowledge, and access to resources). To prove medical negligence, the patient needs to establish that the doctor has fallen short of accepted practices of medical care. This in itself can be an impossible onus on laypersons, because how is a layperson to know standards of care, without expert advice and legal assistance.

Establishing standards of care is in fact one of the crucial aspects of medical negligence. Standards of care can only be set by the medical fraternity themselves, thus ironically and indirectly appointing them as judges in the proceedings. And in the same vein, interpretation of terminology such as ‘act of omission’, ‘reasonable care’, ‘reasonably competent’ etc, can determine outcomes for the patient and the doctor.

Inconsistency in awarding compensation is another thorny issue on the subject of medical negligence. There is no exact set of guidelines to arrive at compensation. As each case is complex in its own way, and every aspect of it needs to be weighed for its merits, seemingly similar scenarios can be judged and compensated differently. This again complicates the outcomes landscape for patients, who might be deterred from pursuing legal action. This also vastly increases the discretionary scope offered to judges. Large compensatory awards are also not necessarily better for healthcare. It could result in the practice of defensive care by doctors, which could stymie a patient's access to healthcare in an already constrained system. This can also result in rising insurance premiums and rising costs for patients.

Navigating the Indian legal system has the additional stressors of long, slow, convoluted processes that are enough to dampen all but the most committed of petitioners.

As health awareness grows within the country, and as the number of hospitals increases rapidly, it is incumbent upon policymakers to urgently address concerns around medical negligence. This needs to be done in such a way that acknowledges that medical treatment is ‘an inexact science, with variable outcomes’ while also preserving the patient’s right to justice and in a way that does not erode public confidence in the justice system.

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