‘Next to creating a life, the finest thing a man can do is save one’
– Abraham Lincoln
Microorganisms are now feared more than Weapons of Mass Destruction by humans in the contemporary world. Physicians and the health care sector are the first and last lines of defence against the growing dangers of diseases in the human population. In India nearly 30 lakh incidents of medical mistakes and adverse occurrences are reported each year, resulting in an unbelievable number of victims resulting out of the mishaps from drugs, hospital-acquired infections, and blood clots resulting out of negligent treatment that is administered.
In accordance with data published by the WHO, even in affluent countries with a high capita per person, one in ten patients suffer injury while receiving medical care. The main causes are unfavourable circumstances. The tragic part is that about 50% of it can be avoided. The concern over patient safety is now much more apparent in light of these disturbing findings. This is done to make sure that the processes and procedures used in healthcare services must be strengthened.
Litigation and claims are mounting. Studies and statistics from the Delhi Medical Council itself show that in the preceding two years, the number of cases alleging overcharging, unnecessary treatments, the wrong doctors, and incorrect rulings has surged from roughly 15 complaints per month to 40 complaints per month. Although the pandemic may have slowed litigation, the real lacuna in medical health care services may become apparent as societal impediments slowly reopen.
The Universal Declaration of Human Rights (UDHR) contains the right to health under international law. It establishes a moral and legal foundation for higher standards of care and offers direction on important social, legal, and ethical challenges. Despite some of the ways in which we as a legal community have grown, when it comes to the advancement of medical jurisprudence in our nation, law enforcement is far behind. Our cultural affinities and attitudes toward the medical care providers may also play a significant role.
In other words, it is the judiciary’s duty to adopt a different mindset when handling matters of medical negligence. The traditional practise of being forgiving of doctors, placing a heavy burden of proof on complainants and victims, and not enforcing punitive penalties against negligent parties have all contributed to the issue of the general public’s health care degrading. The situation has worsened due to doctors being treated with disrespect.
Even when ‘gross negligence’ as defined by the United States Code, other countries’ jurisprudence or by the obiter dicta of our own courts, is proved beyond all doubts, the punitive measure done against wrongdoing people and things is almost a comical attempt to make the victim whole. The enforcement pillar of our society does not understand that a professional accused of severe negligence should be tried under the same standards as crimes against human life under the Indian Penal Code. The truth is that a person charged with murder and a doctor accused of severe negligence do not receive the same legal treatment, despite the fact that the doctor’s wantonness would have otherwise qualified as the murder of another person. When a doctor is accused of violating a patient’s right to life, a fundamental right, the judiciary’s perspective is influenced by historical and cultural notions of doctors as life savers and life-givers.
After viewing numerous cases, it is extremely clear to see that the Supreme Court of India is reluctant to convict medical practitioners of criminal charges, even when carelessness is shown. For courts, proof of negligence is never sufficient; when it is absent, the situation changes.
It has been made abundantly evident from numerous cases that the Supreme Court of India is reluctant to convict medical practitioners of criminal charges, even when carelessness on the part of the practitioner has been proven, for courts, proof of negligence is never sufficient, though when it is absent, the situation changes but when it is proven beyond doubt then the court asks to prove it how severe it is and wants to go in the depth of the negligence and the plaintiff is asked to prove that how ‘gross’ it is and when the plaintiff tries to justify gross negligence according to international standard then court try to rely on the judgment of Jacob Mathew Vs. State of Punjab & Anr. of 2005 and the guidelines laid down in this judgment about dealing with criminal negligence cases attributed to Medical Practitioners, acts as an escape route as nowhere ‘gross’ negligence is defined in the IPC.
Though the situation cannot be altered overnight but following measures could be taken into consideration for protecting the interest of the victim and minimisation of death caused due to medical negligence:
1. Universal Health Care should be the goal, for which government should allot more money to the medical budget. Estimated public health expenditure in India is less than 2 per cent of the country’s GDP, which should be increased up to at least 3 per cent as with all the other countries abiding with UHC have a GDP above 3 per cent.
2. Section 304A, needed to be expanded, incorporating the difference between Ordinary negligence and Gross negligence, wilful misconduct, and when gross negligence amounts to recklessness.
3. The difference between civil and criminal negligence should be written down in the letter of law. If a doctor is supposed to be prosecuted under criminal negligence, then it should be ‘gross’ in nature, which has not been defined yet; a new section 304 AA should be added in IPC- The term ‘Gross negligence’, will include charge of culpable homicide if facts exhibiting wantonness and a wilful disregard for life to support a finding of implied malice, or upon the unlawful killing of a human without malice, or commission of an act which is legal although it may cause death, in an unlawful manner.
Another definition of ‘Gross Negligence’ that should be added to all statutes that deal with negligence should be “Gross negligence – means a failure to use even slight care or conduct that is so careless as to show complete disregard for the rights and safety of others. Wilful [misconduct] occurs when a person intentionally acts or fails to act knowing that (his, her) conduct will probably result in injury or damage. Wilful misconduct also occurs when a person acts in so reckless a manner or fails to act in circumstances where an act is clearly required, to indicate disregard of the consequence of (his, her) action or inaction”
4. Transparency should be maintained in the records of doctors who have been blacklisted. If the erring doctors continue to practice without remedial courses being attended and accepted by the medical community as a representative of their collective skill and experience, their licence to practice medicine should be permanently terminated.
5. Judiciary need to change its attitude while deciding the case of medical negligence under criminal provisions.
6. Exemplary compensation if a hospital fails to provide patient medical records.
7. The terms ‘error’ and ‘adverse event’ should not be used interchangeably as adverse event happens because of drawbacks in the system which should be removed. Occurrence of medical errors can be reduced by applying strong sanctions on the doctors involved.
8. A non-punitive method to decrease medical errors is by adopting an incident reporting model by health care providers, which further should be documented to identify the causes of human errors in conscious attempt to reduce errors.
9. Strategies to Prevent Medication Errors: Failure Mode and Effect Analysis (FMEA) and Root Cause Analysis (RCA) should be implemented.
10. Licence of the doctors should be suspended when they are found not following Standard Treatment Guidelines issued by Ministry of Health & Family Welfare, Government of India.
11. Medical Practitioners should strictly follow the medical literatures and the protocols which have been established by years of practice unless a very good reason and in the interest of the patient, other circumstances exist.
12. There is a need to set up a separate tribunal to decide the medical negligence cases in India with quorum comprising of Two High Court Judges and 3 Doctors panel.
13. Preferentially retired High Court judges should exclusively decide medical negligence cases. This forum should not be exclusive, the victim should have choice to choose the forum to get justice, he can peruse either in civil, consumer or under this tribunal.
14. Litigation in civil cases take an exceptionally long time which has served as a deterrent for victims to fight for justice. Swifter timelines have to be prescribed to reduce the burden on the litigant.