Tough to nail docs in negligence cases

Few Options Other Than Consumer Courts For Kin

Max Healthcare has termed the death of CII deputy director general Jayant K Bhuyan “an accident” and said the operating surgeon has taken “moral responsibility’’ for it. The statement added that Bhuyan was there in the hospital for a cardiac bypass and suffered “severe neurological damage which eventually resulted in death”. Bhuyan’s family wants action against the head of the surgical team for medical negligence, a demand that does not look anywhere near being met.

For the families of medical negligence victims in India, the best bet often is the consumer court which ensures a few thousand rupees in compensation for death or permanent damage. Proving negligence in a court of law and ensuring punishment for the perpetrators is a complicated process.

According to experts, in the close-knit medical community, there is an obvious reluctance to testify against a fellow doctor. And as per rules of the Delhi Medical Council (DMC), even if medical negligence is proved, the maximum punishment meted out to a doctor is suspension of two months during which period he or she forfeits the right to practise in Delhi.

A doctor can be booked under section 304-A of IPC for causing death due to negligence only if found guilty by a medical board. “There are cases where medical negligence can be established very clearly. But in cases where it is not so evident, it becomes a problem. Conviction is very rare and it is often because of the reluctance on the part of medical fraternity to nail the black sheep,’’ said a former city court judge, on condition of anonymity.

In Delhi, section 304-A is applicable only after the DMC finds a doctor guilty. “There is a medical board which examines the negligence case against the doctors and gives the report, based on which a criminal case is registered, if at all,’’ said Dr Anil B a n s a l , former president of Delhi Medical Association.

“Of the 110 cases that came to us between January 2007 and April 2008, negligence was proved in 34, but they were mostly related to professional misconduct and ethical issues, not the treatment per se,” said Dr Girish Tyagi, general secretary, DMC.

Legal experts said to convict a doctor, very strong evidence is needed and a doctor has to testify in court. “Only medical professionals can help the court decide whether it is medical negligence or not. The evidence has to be very strong,” said Dr KC Mittal, a senior Supreme Court lawyer. What makes the task of convicting a doctor for negligence even more difficult is that two doctors can have a different approach on treatment and unlike in western countries, in India there is no set protocol for treatment of any given condition. Thus only glaring mistakes can be proved in the court of law. The result: consumer courts become the safest bet.

“We got 385 cases of medical negligence and of that, we found doctors at fault in 90% cases,” said J D Kapoor, president of the State Consumer Commission. Ironically, an act that is seen as negligent in a consumer court need not necessarily be pronounced th same in a criminal court.

Options

1. The doctor or the hospital can be taken to consumer court, where the best one can hope for is a few thousand rupees in compensation. The verdict does not hold in a criminal court.
2. They can also be tried under Section 304-A of the IPC for causing death due to a rash and negligent act. But for that, a medical board has to say it was negligence — a difficult task .

Procedures followed by Delhi Medical Council

1. All medical negligence cases involving doctors practising in Delhi are reported to DMC
2. A board comprising the DMC president, registrar, disciplinary committee lawyer, an eminent person appointed by Delhi govt and a medical expert decide whether the case is of negligence or not
3. A 20-member council meets on a monthly basis to approve the medical board’s decision on negligence. Doctors found guilty may escape with a warning, or for repeat acts, they may be suspended for a month or two
4. Depending on DMC’s report the police or court decides whether to book a doctor or not
5. Between January 2007 and April 2008, DMC looked at 110 cases of reported negligence
6. In 76 cases, medical negligence was not proved
7. In 34 cases medical negligence was proved. The maximum punishment was suspension of two months

Past convictions

Dec 3, 2007

A Delhi court sentenced two doctors of a private hospital to two years in jail for a botched tonsillitis operation on 13-year-old Gaurav Batra, which resulted in his death in June 1995

July, 2007

An Ayurvedic doctor was sentenced to five years RI by a Delhi court for causing the death of a pregnant woman who sought his help for abortion in 2005

Pending cases

Dec, 2005

Archana Mehta died after 52 days in a west Delhi hospital. She had delivered at a private nursing home but was shifted following complications that the family blamed was because of negligence.

Oct, 2005

Aditya Pal (8), who was undergoing treatment for papillomatosis of the larynx and trachea, died of internal burns and infection due to an accidental laser spark during a surgery at Indraprastha Apollo Hospital. The matter is in court.

May, 2008

Kumud Devi from Bihar underwent mastectomy in March 2008 at AIIMS. But the post-surgery biopsy report revealed that it was not cancerous. AIIMS is investigating the matter

Source:-The Times of India Delhi 26 December 2008 P. 6

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