On 7th October this year, Babita Rai, a 42-year-old government school teacher in Jamshedpur, Jharkhand, was admitted to the Tata Motors Hospital in the same city. Because of a 6 cm ovarian cyst she was scheduled for a hysterectomy and an oophorectomy (surgical removal of the uterus and ovaries respectively), two days later. According to her brother Rajesh, Rai felt a swelling on the left side of her stomach after the surgery. Four days later, on 13 October, Rai was dead from septic shock, Rajesh added.
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A 13 October case summary from the hospital indicates that Rai suffered perforation of the colon. Rajesh alleges that when the family tried obtaining records of the surgery post mortem, they found the consent form tampered with. He said the name of a senior laparoscopic surgeon – for whom Rai had provided her consent – had been struck through, and the name of a junior doctor written by the side.
Rajesh says that the senior surgeon could not make it on time, and the junior doctor decided to do the surgery herself instead of rescheduling. He also alleges that the hospital did not perform routine postoperative follow-up tests to ensure that there were no resulting complications. In other words, according to Rajesh, his sister’s death was a result of “gross medical negligence”.
At the time of writing this piece, Rajesh has been seeking justice for his sister’s death due to alleged medical negligence by writing to several government bodies, including the National Commission for Women, the National Human Rights Commission, the National Medical Council, and the Offices of the President and the Prime Minister.
He claims he is yet to receive a positive response.
Medical Negligence
Babita Rai is one of the millions of people whose death has been counted by relatives under medical negligence every year in India (according to a 2018 estimate, the yearly death count due to medical negligence stood at roughly 5 million).
In a recent development, Home Minister Amit Shah announced in Parliament last week that doctors will be exempted from criminal prosecution in cases of death due to negligence. However, according to Section 106(1) of the Bharatiya Nyaya (Second) Sanhita (BNSS), the rulebook set to replace the Indian Penal Code, doctors will continue to face a two-year imprisonment and/or a fine if convicted. This is lesser than the Sanhita’s recommended punishment of five years for other cases of death by negligence (for example, by rash driving).
In his announcement to the Lok Sabha, Mr. Shah claimed that the Indian Medical Association (IMA), the largest representative body of doctors in India, had requested the Home Ministry for an exemption from criminal prosecution.
According to Dr. R.V. Asokan, the IMA president, the Association had first raised concerns about increasing criminal cases of negligence being filed against doctors in an April 2023 meeting. The agenda item A-2 from the meeting document deems criminal prosecution of doctors for medical negligence “irrelevant” and demands that doctors be “exempted” from it.
After the April 2023 meeting, in September 2023 the IMA made a submission to the Parliamentary Standing Committee on the BNSS. According to the submission, the IMA reported around 98,000 deaths per year due to medical negligence in contrast with 52 lakh medical negligence cases filed against doctors. Further, the IMA also asked that a law criminalising violence against doctors be included in the BNSS since “75% of doctors and paramedics face violence as per IMA”.
The IMA also estimated the economic loss due to violence against doctors to be in the order of billions of rupees per day.
Finally, the IMA also asked in its submission that the BNSS make a clear distinction between medical “negligence” and medical “accident”. While “negligence” would refer to a “reckless”, “conscious and voluntary disregard of the need to use reasonable care” on part of the doctor, an “accident” would involve sudden and unexpected deaths of patients under medical care without conscious intention to harm on the part of the doctor.
The BNSS in its current form has not made any explicit distinction between medical negligence versus accident.
That said, several existing clauses in the BNSS may offer protection to some doctors from criminal prosecution. For example, clause 26 provides an illustrative example of acts done in “good faith” that are exempt from criminal prosecution:
A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under the painful complaint, but not intending to cause Z’s death, and intending, in good faith, Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.
In a similar vein, clause 30 adds:
Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s death, but in good faith, for Z’s benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.
Conundrums
Explaining the need to exempt doctors from criminal prosecution for negligence, Dr. Asokan said, “[the criminal prosecution of doctors] has become a form of harassment and doctors are mortally afraid of the criminal law.” “This influences the decision a doctor makes in critical moments,” he added.
In other words, Dr. Asokan holds that exemption of doctors from criminal prosecution will provide the nation “better results in patient care.”
However, bioethicists, lawyers, and members of the public express concerns that a blanket exemption of doctors from criminal prosecution for negligence might lead to an increase in medical malpractice and put marginalised populations at an increased risk.
Rohin Bhatt, a Delhi-based bioethicist and lawyer, said that the conversation around medical negligence is incomplete without contributions from patients and patient advocacy groups. He believes that “patient advocacy groups have not been given the voice they deserve [in this conversation].”
Further, he also argues that owing to the “power imbalance” in the doctor-patient relationship, an act of negligence on the part of the doctor calls not for a lower punishment but a higher one. According to him, “it is because of unequal power balance in the doctor-patient relationship, [an act of medical negligence] calls for a higher punishment than the standard.”
Ayushmita Samal, a Delhi-based sexual and reproductive health researcher, added that a blanket exemption might lead to an increase in cases of deaths by medical negligence among women, queer, and transgender persons, and those who live in rural areas. As an example, Samal spoke of her aunt’s death in 2015. A resident of a village in Bhadrak, Odisha, her aunt died of septic shock after a nurse-cum-midwife allegedly failed to detect a miscarriage. Samal feels that this could have been avoided had the nurse-cum-midwife taken her aunt’s concern of not feeling the baby’s movement more seriously.
Geet, a Bangalore-based chartered accountant, arts therapy practitioner, and a non-binary person, added that they are concerned that a blanket exemption of doctors from criminal prosecution would compound medical malpractice against people from marginalised genders and castes. According to them, “in a country like India, where most doctors are upper-caste cisgender and heterosexual people, imagine to what extent they can go in ignoring the concerns of dalit, non-binary, and transgender persons in the absence of a legislation that criminalises malpractice!”
Geet charges that their mother, who died of uterine cancer – related complications in 2018, was a victim of medical negligence that included “hiding of information, not taking her concerns seriously, medical abuse, and fatphobia.” (Medical fatphobia is defined as the discrimination by medical practitioners against patients who are seen as overweight. According to reports, medical fatphobia may lead not only to emotional and psychological distress for patients, but also incorrect dosing of medicines on the part of the doctor.)
Both Geet and Samal also point out that in the absence of a legal recourse for patients when they suspect medical negligence, they may lose faith in the legal system. This, in turn, can lead to an increase in violent attacks on doctors.
Next Steps
As a next step, Dr. Asokan said that the IMA is looking to “dialogue” with the government and the public in order to establish that exempting doctors from criminal prosecution is beneficial for patient care.
“We will talk to the people. We are a young nation, and we can build this nation in our own way, on our own values and ethos. We will fight for the space we deserve in this country. In that we are determined,” he said.
On the other hand, Geet stresses on the importance of a nationwide survey before the government decides on medical negligence. According to them, “The Home Minister must sanction a survey that seeks to understand the scope of medical negligence and patients’ experience with the same.”
Without reliable nationwide data on the same, any decision to exempt doctors from punitive consequences of their action will constitute a lopsided decision in favour of doctors, they added.
(Sayantan Datta is an independent science journalist and a faculty member at the Centre for Writing and Pedagogy, Krea University. dattasayantan95@gmail.com)
Published - December 28, 2023 10:25 pm IST
