Twenty-six-year old Rajkumar never imagined that he would lose his wife Priya to a cotton swab. Five days after her C-section operation on December 27, the 24-year-old from Vridhachalam in Tamil Nadu died due to sepsis, which was caused by a cotton swab being allegedly left inside her by the doctors.
Priya is just one of the many victims of medical negligence in Tamil Nadu in recent months. Though many victims have filed complaints, the number of cases that has actually resulted in the doctors getting punished remains low.
According to the Minister of State for Health and Family Welfare Ashwini Kumar Choubey, in 2017, 69 cases of medical negligence were awarded punishment by the Medical Council of India (MCI). This formed 44% of the cases referred to MCI by the state medical councils. In 2018, 28% or 40 cases referred to MCI by state medical councils awarded punishments to doctors and in until June 2019, 46% or 28 doctors were punished by MCI for medical negligence.
Doctors investigate doctors
Medical negligence complaints in India are usually received by the State Medical Councils, where the accused doctors are registered. A complaint may also be filed with the police.
The State Medical Councils conduct inquiries and investigate the case with the help of a panel of expert doctors. The order of the State Medical Councils can be appealed in the MCI by the patient or the doctors. The punishment awarded by the MCI ranges from warning the doctor who is found guilty to removing the name of the doctor from the Indian Medical Register/ State Medical Register for a specified period. The MCI order can also be appealed in a court of law by the aggrieved party.
However, experts have often emphasised the need for a panel with members from various walks of the society to investigate cases of medical negligence.
Sylvia Karpagam, a public health researcher, points to the lack of an independent, neutral and external regulatory committee to hold doctors accountable for their actions and says that doctors, in general, hesitate to question other doctors. According to MCI Regulations, professional incompetence of doctors shall be judged by a group of doctors and not by any external, independent body. This indicates a possible conflict of interest among the doctors’ groups, Sylvia points out.
“In private, doctors agree that a case was medical negligence and that they wouldn't have done that to their patients if it were them. But in public, nobody will ask questions of other doctors. They will always look to protect their group interests and this is why even most inquiry panels set to investigate such cases don't hold the doctors guilty,” she explains.
In fact, a Parliamentary report on the Indian Medical Council (Amendment) Bill 2013, had highlighted the possibility of a conflict of interest between the inquiry team and the accused doctors in cases of medical negligence.
“There are reports that the medical professionals probing into the allegations of medical negligence are very lenient towards their colleagues guilty of negligence and none of them is willing to testify another Doctor as negligent. The immediate impact of this arrangement is that the percentage of prosecution in the medical negligence cases by the MCI is almost negligible,” reads the report. It also made the following recommendation - “The Committee, therefore, recommends that all such cases of such medical negligence should be inquired into by a Committee of experts drawn from various fields and experience including social activists, patient's representative, etc.”
Patients face more heat
Maitreyi Krishnan, a lawyer practising with Manthan Law, says that in medical negligence cases, the onus of proving that the doctor is negligent is often on the patients. Sylvia agrees, stating that the inquiry panels of expert doctors which investigate cases often ask technical questions to the patients and their families, thus putting them in a tough spot.
Also, fighting medical negligence cases in courts is a long-haul process.
“For cases involving medical negligence, there is compensation attached to it. We have quite a number of cases in which compensation has been awarded to the aggrieved party,” Maitreyi says. She adds that only those who have the time and resources to pursue the case in the court will opt to do so. “Cases of people from economically and socially vulnerable groups will never go to court. So, you will never hear about them,” she adds.
FIR plays major role
Maitreyi also highlights that the first step to taking the case to court is the FIR, which in most instances are not filed under the correct sections of the IPC.
In Priya’s case in Vridhachalam, the police have registered a case of unnatural death (section 174 of CrPC) based on a complaint from her husband Rajkumar.
"The case must be registered under IPC section 304A (Death by negligence) instead of section 174 of CrPC (Unnatural death). This FIR must be registered for a case to move forward since section 174 includes death by suicides and many such kinds," she says, adding that having the case under section 174 of CrPC does not set the law in motion.
Maitreyi also points to the image that doctors have in India, one of service to society. This in her opinion makes it difficult to accuse them of a crime.
“There is this thought that they are doctors, they are doing their job etc. So, if doctors do something wrong, it is not considered a criminal error. That is how it is perceived. So, this is how people think about it and hence the police think twice before registering it as criminal complaint,” she explains.
Sylvia also attributes the failure to register a proper FIR to the high level of influence doctors have in society. “Because of the collusion between doctors and police, it will usually be very difficult to make the police register a proper FIR, take proper statements from witnesses etc. They misplace files, make complainants come to the station and hospital again and again etc thus making lives difficult for the patient/victim’s family,” she points out.
Bring in strict regulations
Sylvia says that the medical education system in India itself needs a thorough overhaul. “People who are coming in are good in academics, but it is also important that when they qualify they have a strong sense of ethics, integrity and morals,” she states, adding that the idea of ethics is still very small in the country among the professionals and the students.
Apart from this, she adds that strict implementation of existing regulations and bringing in new ones is long overdue in the country.
“Hospitals don't follow rules themselves. For example, how many hospitals do you think still have periodical mortality meetings? They are supposed to account for every death that has happened in their hospital -- what went wrong, when, how etc. But most of them don’t do that properly,” she points out. She also adds that it would also help if the punitive action goes beyond holding the junior-most doctor accountable. “Officials in the higher levels must be held accountable. That might help a bit.”
Maitreyi concurs that there are serious shortfalls in private medical practice in India. “There is a need for strict implementation of a law which regulates the domain of private practice, which we know has become a very commercial activity,” she says.