With their gleaming facades, five-star lobbies and rockstar doctors, big private hospitals are now a fact of life in India’s urban landscapes. Well-heeled middle-class patients and those with enough insurance now rush to them, hoping for world-class treatment but sure that either way it will cost them a bomb. “The choice is limited and the costs of care in the private hospitals are going up,” says Alok Mukhopadhyay of Voluntary Health Association of India.
Experts blame this in large part to the expensive superstructure created at these mega hospitals—the extensive use of technology, needless tests, prescriptions of expensive medicines, and fancy salaries to consultants among others. Though many of the hospitals have registered themselves as trusts and avail tax breaks, there is no regulation to ensure that they meet their commitment to poor patients. “Private hospitals are not open to oversight—monitoring and clinical quality is a huge question mark,” says Ravi Duggal, country coordinator, International Budget Partnership. Duggal has done extensive studies on healthcare in India.
Duggal blames the present unregulated status of private sector healthcare on the failure of the Union government to get the Clinical Establishment Act, 2010, enacted and the lack of initiative by states to bring in similar legislations. The irony is that while an overburdened public sector health structure is straining under the load, private hospitals are growing rapidly—but only in terms of number, not necessarily in quality of care.
Consumer advocate Jehangir Gai says that though healthcare costs in India may seem more affordable when compared to the West, “it is still out of reach of the average people. One illness can wipe you out. It is not individual hospitals but the whole system that is flawed”. He narrates a story from a medico- legal conference he attended where a doctor admitted to “being compelled to leave for not meeting income targets” of the hospital.
When The Paddle Fell
September 14, 1984, was a black day in my life, the day I slipped into a coma during a routine knee surgery which turned awry due to medical negligence at the Apollo Hospitals, Chennai. It was only later that I learnt that I had suffered bradycardia, cyanosis, muscular atrophy, ataxia, hypoxia, cerebral ischemia, pulmonary oedema resulting in cerebral anoxia and brain damage due to a failure of oxygen supply to the brain. In a cruel twist of fate, the tragedy happened just 20 days after I got the prestigious Arjuna award.
I didn’t know what to do next as many of my family members felt that taking action against a leading hospital would put me in danger of being isolated by the medical fraternity. All my efforts to convince the hospital to set right their wrong failed. I consulted my friend and lawyer who felt legal action was the only remedy, if at all. There were no consumer courts at the time and a civil suit of this nature would involve enormous court fees. Therefore, I had to bring down my claim on damages.
Recently, I saw a judgement where an NRI was given a huge amount as damages by the courts. The financial compensation may not really cover the extent of damage to the affected person, but it is a deterrent against such future negligence. My personal view is, if the negligence is proved, the punishment should be severe and apart from money, the doctor’s licence to practice should also be revoked.
I’d like to congratulate the courts for taking such a bold step. I am also happy that in spite of protests from some medical practitioners’ groups, this western doctrine of awarding damages when there is negligence has come to stay in our country.
My case (No. CS 690/1985) was won on the basis of the Law of Torts, which is seldom used in India. The principle of res ipsa loquitur was invoked successfully in my case (although it is not commonly used in Indian courts of law). I continue to suffer from visual impairment, lack of proper coordination, balance and an inability to read small print. I continue to suffer from nystagmus (oscillation of the eyeball). In spite of extensive treatments in India and abroad, though there has been much improvement, chances of a complete recovery seem remote. However, I continue to do my best for society by following my passion of teaching children the game of table tennis.
I am grateful to all the lawyers and doctors who did stellar work to help me recover to this stage. I am also happy to state that on October 28, 2013, a bhoomi puja was performed on the land given to me by the government of Tamil Nadu to construct an international sports complex. I am hopeful that my cause will attract enough sponsorships and donations to help me complete my dream. In parting, I would also like to mention that the erring surgeon finally did apologise to me and my grandfather. But what good is it? As my grandfather’s reply to him succinctly put it, “Can any human being not feel sorry?”
Medical Negligence
B.P. Suresh Kumar breaks down on the phone. Not once, but many times. The Bangalore-based advertising professional is recounting the events that led to the death of his son B.S. Sanjay in May 2010. “He was a good boy, you know. So intelligent that he had designed something for Nokia that was patented,” he says. Medically obese, the 35-year-old died due to pulmonary embolism, a blockage in the pulmonary artery that caused a sudden and severe heart failure.
The complication arose after a knee surgery he underwent at the city’s Fortis Hospital on Bannerghatta Road. “Doctors there did not take the precaution of giving him an injection that would have thinned his blood. It costs just Rs 700. And even when one of the doctors there suspected pulmonary embolism, they did not act accordingly,” Kumar adds.
Kumar filed a complaint with the Karnataka Medical Council (KMC). An order from them in January this year confirmed negligence, and Dr Jeevan Pereira, an assistant surgeon and one of the six named in Kumar’s complaint, was delisted from its register for six months. Kumar is also expecting to hear from the Medical Council of India (MCI) which finished its hearings in August. “Let what happened to my son not happen to anybody else,” he says.
Kumar is part of a small band of ordinary people who have been notching key, even if small, victories in the battle against medical negligence, clawing back out from the abyss the death of a loved one has thrown them into. Giving them a shot in the arm is the recent landmark verdict of the Supreme Court in favour of Kunal Saha (see ‘End the Omerta of the Lambs’)—awarding him an unprecedented Rs 5.96 crore in compensation.
It was a protracted battle of 15 years for the NRI doctor, who lost his wife Anuradha in 1998 to negligence at Calcutta’s AMRI Hospital. In 2009, the SC had directed the Nizam’s Institute of Medical Sciences, Hyderabad, to pay Prashant Dhananka Rs 1 crore in damages. An operation to remove a chest tumour had damaged his spine, leaving him paralysed waist down.
It’s a tough battle given the grinding justice system, corrupt medical councils, influential doctors and a medical set-up prone to muzzling cases of negligence that belie the branding spiel of new-age hospitals featuring smiling faces, food courts, film theatres and even ‘happy hours’ for services.
Utsab Basu, a Calcutta-based corporate legal consultant, is another of the persevering tribe. His wife Bandana, who was diabetic, died of cardiac failure while undergoing a cataract operation at ophthalmologist Vijay Pahwa’s Russel Street clinic in the city in November 2004. “The doctor led me to believe his clinic was well-equipped to handle an operation on a diabetic patient, but it was clearly not the case. I had told him to have an anaesthetist and a cardiologist on standby but they weren’t there either. Not just incompetence, it was a case of greed,” Basu says.
Nine years on, and a few victories along the way, his battle is far from over. It began with a complaint to the state health department, which filed an FIR in 2005 and also sought expert opinion from Calcutta Medical College’s forensic and ophthalmology department which indicated serious medical negligence. The doctor was arrested early 2005 but released on bail. The wheels of justice have moved slowly since then.
Two separate cases filed by the state against the doctor at a local court, one for negligence, the other for running a clinical establishment without the requisite licence, are still in progress. “Meanwhile, a defamatory suit filed against me for Rs 5 crore in the Calcutta High Court in 2006 was dismissed in February 2007,” says Basu. Pahwa apparently now practises from another clinic elsewhere in the city.
The biggest stumbling block in ensuring criminal liability in cases of medical negligence arises out of a 2005 Supreme Court ruling that calls for “credible opinion” from another “competent doctor” to support accusations of rashness or negligence. Introduced as a safeguard against frivolous prosecution, it has instead helped protect guilty doctors because rarely do their compatriots testify on behalf of a patient in medical negligence cases.
“Even in cases where there has been obvious negligence, doctors are plain scared to express themselves publicly,” says Sanjay Nagral, a Mumbai-based surgeon who has offered his opinion on several occasions. Groups like the Association for Consumer Action on Safety and Health, Swasthya Adhikar Manch and People for Better Treatment (PBT), an NGO Saha founded, help people overcome this lacuna.
Sudhir Sahu, a bank professional who went on to win a case at a consumer forum against doctors from the chl-Apollo Hospital in Indore where his father Ramlakhan Sahu died, faced precisely this hurdle. “No doctor was ready to write anything against those responsible for my father’s death. When Dr Anant Phadke did, the court did not accept his opinion because it said he was not practising medicine regularly and was more involved in social causes,” says Sahu.
While doctors may not venture to offer an opinion against their colleagues, they do not hesitate to rally around an accused from their profession. “This is the flipside. They do not hesitate to give dozens of affidavits supporting other doctors even if it means siding with what is wrong,” says Dr M.S. Kamath, honorary general secretary, Consumer Guidance Society of India, and a medico-legal expert. “Some of our judges are really obstinate. Their insistence on expert opinion can make life miserable,” he adds.
Even the family members of someone as influential as the late and former chief justice J.S. Verma are not spared the agony. They are fighting to prove alleged medical negligence at Gurgaon’s Medanta Hospital, something the PM earlier this month promised will be looked into. Ensuring criminal liability in medical negligence cases is a complex task; many choose instead to focus on securing conviction in different state medical councils or the MCI and consumer courts first. The latter do not insist on “credible opinion” in determining civil liability.
Even so, the going is tough. Bangalore-based architect Parikshit Dalal, who lost his wife Kapali Patne and an unborn child at the city’s Santosh Hospital, knows it well. Wheeled in for a caesarean delivery in April 2010, the hospital said Kapali died because of an adverse reaction to an anaesthetic drug. A post-mortem, however, found fractured ribs and pelvic joint, the latter suggesting a fall.
“To cover up their lapse, they didn’t even operate on her to save our child and instead cooked up the anaesthesia story,” says Dalal, who is fighting three cases—in the local sessions court, at the National Consumer Forum and at the MCI. When he brought two medical experts to a hearing at the Karnataka Medical Council, he was told to bring a lawyer. He went to the high court and won the right for him, and others like him, to be supported by medical experts in hearings at medical councils.
They invariably are closed-door affairs with only the complainant and his or her legal counsel, something that allows people without a medical background to be intimidated. Even the management of these councils has been controversial, with elections held rarely—KMC didn’t have one for 17 years—and recent reports of corruption in the election of representatives from Andhra Pradesh to the MCI. The defence of tainted former MCI president Ketan Desai by the Gujarat Medical Council after he was appointed head of the department of urology at the B.J. Medical College in Ahmedabad also does not inspire confidence in these bodies as regulators. “The last three years have been spent in just ensuring the case moves forward and that we are not snubbed at every step,” says Dalal.
It’s an ordeal Pankaj Rai, a retired major of the Indian army, is also familiar with. His wife Seema died of a botched-up kidney and pancreas transplantation in 2010, also at Bangalore’s Fortis Bannerghatta. “They wheeled her in without proper informed consent from her. And how could they carry out a pancreatic transplant when Seema was not registered to undergo a pancreas transplant and when they did not have the licence to carry out one?” asks Rai.
It’s a clear violation of the Transplantation of Human Organs Act, 1994, punishable with up to five years in prison and a fine of Rs 10,000. An inquiry by the MCI in February this year found transplant surgeon Ram Charan Thiagarajan at Fortis guilty of violating the Indian Medical Council Regulations, 2002, and ordered the state medical council to delist him for a year. Thiagarajan, however, won an interim stay from the high court on the ruling, something Rai has appealed against.
On the other hand, the National Accreditation Board for Hospitals and Healthcare Providers also withheld its accreditation for transplantation services at the hospital in September last year. A separate case where Rai has accused Fortis nephrologist Rajanna Sreedhara of perjury is under progress at the KMC. A Fortis statement refused comment in both these cases as the matter is sub judice.
However, even in cases where medical councils have held negligent doctors guilty, the self-regulatory system has been hesitant to hand out strong deterrent punishment. In most cases, the doctors are derecognised for a cursory three or six months. In this time, they go on to practise abroad or elsewhere in the country. In B.P. Suresh Kumar’s case, Pereira moved to Oman within 15 days of his son’s death.
So tolerant are our authorities, perhaps even indulgent, when it comes to medical negligence that Sukumar Mukherjee, one of the three doctors held guilty for the death of Anuradha Saha, was empanelled by the West Bengal government as an advisor on medical issues last year. “The quantum of punishment should be a cancellation of licence for at least five years or permanently,” says Mihir Banerjee, vice-president of the PBT. “These regulators, in fact, are shielding errant medicos. How do you expect regulation if it applies only light punishments?” he asks.
Even the decision to deroster doctors has never been publicised, something that prevents public shaming. The MCI, though, in September took the never-before step of publishing the names of four doctors (two from UP and Maharashtra each) whose licences had been cancelled in the Delhi edition of Hindi daily Dainik Jagran.
The ineffectual regulatory environment has prompted calls for radical changes, among them the inclusion of non-medical representatives in various councils. “Abroad, a third of many medical councils comprise non-medicos to oversee the proceedings,” adds Banerjee. Some have also suggested the creation of a medical tribunal, like the income-tax and labour tribunals, headed by a judge and a doctor.
Other recommendations include a southern branch of MCI and more branches of state medical councils in bigger states. Many are hoping the attention the Saha judgement has brought will help relieve some of these bottlenecks. Rai speaks for many others like him when he asks, “Like many Indians I am a common citizen who pays his taxes dutifully. We can live with bad roads, potholed ones, power cuts and erratic power supply. But why deny our constitutional right to justice if justice is at all a right?”
End The Omerta Of The Lambs
Last week, the Supreme Court passed its final verdict in the much-publicised case of “medical negligence” that led to the death of my wife Anuradha, who was a child psychologist in the United States. After a legal battle that ran 15 years, the court unequivocally held four senior Calcutta doctors and the AMRI Hospital responsible for Anuradha’s death and awarded a compensation of around Rs 11 crore (including interest), by far the highest awarded in Indian medico-legal history.
Anuradha died while on a short social visit to India in 1998, succumbing to the most unscientific and reckless treatment. She was only 36. As new immigrants to the US, we were on the threshold of our professio–nal careers and the American dream when this happened. I was in a state of shock, having watched her die from what had been diagnosed as a simple “drug allergy”.
Nevertheless, I embarked on a seemingly impossible legal battle to seek justice not only for my departed wife, but also for the thousands of other Anuradhas who are victims of reckless therapy in hospitals and nursing homes across India every day.
My friends and family tried to dissuade me: they believed that in India, it would be impossible to bring influential doctors to book. But I believed my wife’s death brought me a bigger purpose in life. Having fought the case to its end, I see the Supreme Court’s verdict as a vindication, a stamp of approval of my belief that Anuradha died because of the ignorance and arrogance of some Indian doctors.
Our victory is a small beginning towards checking—and eventually trying to end—rampant medical negligence in India. There’s a long way to go before innocent patients are spared death due to the irresponsible attitude of some of our healers and the endless greed of some of the hospitals and nursing homes mushrooming across India.
While ordinary people in India see in the judgement a glimmer of hope that doctors have finally received a stern message against negligence in treatment, leaders of the Indian Medical Association (IMA) and other medical groups are crying foul. Some of them are spreading the idea that the judgement will encourage “defensive” medical practice: only to be doubly sure and safe and avoid litigation, doctors would start recommending a wide range of expensive investigations that could be done without.
But may I ask if anyone really believes that, so far, doctors have been restraining themselves from prescribing expensive (and probably unnecessary) tests to save patients’ money? It’s time doctors realised that public trust in healers has plummeted to a record low. The reasons are not hard to see: there are no checks and balances for doctors.
The Medical Council, India’s central regulatory authority for doctors, is both inept and collusive. Private hospitals and nursing homes are reaping enormous profits while working without (or with little) oversight; doctors themselves are in a race to amass as much wealth as possible and they try to achieve this by squeezing in as many patients as possible into their practice hours. Both hospitals and doctors go scrambling about for wealth, putting patients at risk and with no fear of being questioned.
This is abetted by an unwritten omerta, or code of silence, by which doctors in India refuse to speak up against delinquents from the profession or make adverse comments on cases in which patients are clearly victims of negligence or out-and-out professional error. Thus it’s virtually impossible for the common man to take legal recourse and seek redress for medical negligence.
If excessive litigation had led to a fall in the standards of medical care, as suggested by the IMA, then the quality of healthcare in developed countries would have collapsed a long time back. While lawsuits aren’t the most desirable way of cleansing the rot in the Indian healthcare system, people will have little choice but to go to the judiciary until a degree of transparency is established, until a regulatory system that works is in place and until doctors start giving evidence, unemotionally and as professionals, in cases of negligence, errors of judgement or sheer ignorance that lead to patients dying or suffering damage.
Or else, in sheer hopelessness and anger, as it often happens in India, they may end up taking the law into their own hands, beating up doctors and vandalising hospitals after losing their loved ones. That, of course, will never solve the problem of medical negligence.
In the course of 15 long years of litigation, I never once alleged that the doctors did not advise or perform the tests that were necessary. The burden of my argument was this: they used the wrong drugs, prescribed excessive doses and did not provide minimal supportive therapy, resulting eventually in Anuradha’s death. Additional tests could not have prevented her death: what caused the death were these acts of omission and commission by the Calcutta doctors and AMRI Hospital.
It is these critical factors that the 210-page judgement brought to light, sending a strong message that reckless, unscientific practice will not be tolerated. In fact, as a deterrent, the judges have issued a stern warning against doctors “who do not take their responsibilities (of treating patients) seriously”. The court also chastised them for unethical behaviour: they had at various points tried to shift the blame on to one another.
I’d also like to point out that Indian doctors need not panic that payouts as large as `11 crore for a single medical mistake will leave them bankrupt. The court has clearly suggested that, while errant doctors must pay for their negligence, the bulk of the compensation for the victim must come from the hospital, which makes the maximum profits from patients. Also, the compensation rose to `11 crore in this case because Anuradha’s prospective loss of income was calculated based on her income in the US. Patients who live in India will have the compensation calculated based on potential earnings in this country.
I have reasons to believe that healthcare issues highlighted in Anuradha’s case judgement are common problems in Indian hospitals and result in numerous deaths and permanent injuries daily. Anuradha died because of the heavy overdose of a rarely used steroid (Depomedrol) that causes serious side-effects like immuno-suppression.
The doctors and AMRI Hospital were not willing to discuss the use of the drug even as Anuradha went from bad to worse. Doctors in India are generally reluctant to discuss the drugs they use, the side-effects, the treatment protocol with the family or even the patient. This despite the fact that they are legally and morally bound to provide a complete picture to the patient. Doctors are also duty-bound to obtain “informed consent” from the patient or his family about any risks associated with the treatment. Unfortunately, these fundamental rules exist only on paper and are flouted with impunity.
Fifteen years after I lost the most precious gift that I ever had in my life, my battle for justice for my departed wife may have come to an end. But my struggle to stop the pervasive medical negligence in Indian hospitals has just begun and will continue through People for Better Treatment (PBT), an organisation I have established to help victims of medical negligence. It’s my way of ensuring that other Anuradhas may get a chance enjoy the gift of life.
(With inputs from Kajol Singh, Suhasini Roy, Aneesh Gupta and Syed Hussain)
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