By Dr S Saraswathi
(Former Director, ICSSR, New Delhi)
Transfusion of HIV-affected blood to a pregnant woman causing her to contract the disease is shocking news showing medical error as well as negligence in a government hospital a few days ago. The lapses have occurred in receiving blood donation of a person with the disease and in testing the blood before administering it to the patient. Irreversible consequence of these lapses is spread of the disease to the woman and her baby.
This incident is immediately followed by another complaint of transfusion of HIV-affected blood to a pregnant woman against a hospital and its staff.
In another incident, overdose of anesthesia administered before a caesarian section crippled a woman and confined her to bed from which she has not recovered even after nine years. Reasonable care and caution were obviously not taken before and after the surgery like monitoring oxygen levels.
In the first case, two government hospitals in Tamil Nadu — one that supplied the blood and the other that treated the patient were concerned. The second occurred in the heart of Chennai — supposed to be a coveted destination for medical tourism from neighbouring countries. The hospital denies any possibility of contaminated blood in their possession, and refuses to accept any responsibility in the matter. The third happened in Ahmedabad in a hospital which lacks basic life supporting facilities for undertaking surgeries.
Many such incidents are happening in the country, but not all are reported or pursued by the affected to book the culprits. In 2016, the Supreme Court issued an order directing the Centre to ask States to take steps to end the oppressive practice of sterilizing women in large camps — a practice emanating from the absence of rights-based approach and open encouragement to malpractices.
Is the common defence that doctors are not Gods, but do their best to cure the patients applicable to cases of errors and negligence? Errors in judgement may happen as reaction of patients cannot be exactly assessed, but error in conducting the treatment is avoidable.
Medical negligence is commonly understood as breach of duty owed by a doctor to his patient to exercise reasonable care and skill which results in some physical, mental, or financial loss. It is concerned with the duty to care, breach of the duty, cause of the breach, the damage caused, and possible remedy including financial compensation to the victim. The Supreme Court defined the term in a case in 1992 as “want of reasonable degree of care and skill or wilful negligence on the part of medical practitioners in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to his body injury or permanent disability or loss of life”.
Medical errors may occur in diagnosis, prescription of drugs and dosage, and procedures followed in administering the drugs and handling the patient. The Supreme Court took medical negligence as a serious offence in the famous Saha case in 1998 and levied a heavy amount of Rs. 5.96 crore as compensation to be paid by the offenders. The judgement was termed by the court itself as a “deterrent and a reminder to those doctors, hospitals, and nursing homes who do not take their responsibility seriously”. The penalty, which was higher than what the Consumer Court earlier awarded, signified the enormity of the offence of medical negligence at times.
The Medical Standard of Care used to measure negligence is defined as the “level and type of care that a reasonably competent and skilled health care professional with a similar background and in the same medical community would have provided under the circumstances”. Conformity and deviation from the Standard shows the negligence.
Medical negligence and its extreme form of ill-treatment of patients are reported more in treatment of mental disorders than physical. It needs to be dealt with as an independent issue.
Medical negligence is a problem known even in ancient times. The concept of medical responsibility is traced by researchers to ancient Mesopotamia in their Code of Hammurabi, which introduced the concept of holding medical professionals accountable for deaths and injuries that could have reasonably been prevented. Ancient Greece and Rome were said to have treated medical negligence with severe punishment. The Roman law provided for compensation for injuries during treatment. Many European countries adopted varied versions of the Roman law. In the old German Empire, it is said that if a patient died, the doctor was handed to the family of the deceased to be treated as they decided.
Ancient India was not behind others in this matter as concepts of professional ethics, duties, and liabilities of doctors were specified in ancient documents. Manusmriti provided penalties for lapses in medical treatment according to their severity and intensity of the damages caused to the patients. Kautilya’s Arthashastra prescribes legal duties and liabilities of doctors who should inform administrative authority regarding the treatment. Such ideas of protecting helpless patients from irresponsible doctors continued throughout history.
In the modern era, cases of medical malpractices began to appear before courts in the US in the beginning of the 19th century and became common by 1960. Today, with the advancement of the concept of consumer rights and practice of Tort Law, medical negligence is considered a serious offence. An article in a medical journal even suggested that medical negligence was the third cause of death in the US after heart disease and cancer.
In Britain, under the Medical Act passed in 1858 medical practice was limited to those enrolled on the Medical Register so as to reduce irresponsible medical practice. On the other hand, China has a lenient law which punishes only serious cases of medical malpractice.
The Supreme Court of India, in a historic judgement delivered in 1995, made doctors accountable for any act of “medical negligence” and ruled that they could be sued for compensation under the Consumer protection Act, 1986. Doctors and hospitals which render free service are exempt from the purview of this Act.
The National Health Policy of India adopted in 2017 shifted emphasis in health care from “sick care” to “wellness”. Its principles are centred on professionalism, integrity and ethics, equity, affordability, universality, patient-centred and quality car, accountability, and pluralism. If these are followed earnestly, medical negligence and errors can be effectively checked. Unfortunately, medical profession is fast becoming a business with declining service values helping promotion of negligence and unethical practices. The latter is invisible, but pervasive operating in numerous ways.
Hospitals are part of our social system in which human inter-relationship is important in a situation where a patient depends on the doctor and the hospital for his life and well-being.
Health care all over the world is going through a crisis of trust. Unless trust is built up among medical professionals, patients and their families, and medical institutions, blame games will go on and court cases multiply with growing awareness of their rights by citizens. Trust cannot be thrust on anybody or anything. It has to be earned. Medical fraternity has to look inwards and restore the service values of the profession.—-INFA