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Health hijacked

| | in Sunday Pioneer
Health hijacked

Healthcare in India is in a mess with no corrective lead being taken by the Government. Death due to negligence, wanton overpricing by private hospitals, crass commercialisation of the medical profession and limited infrastructure are just some of the many ills facing the medical field. SUNDAY PIONEER brings you two sides of the coin in a space that needs urgent resuscitation


There is a lot of ugliness happening in the medical field in which all stakeholders are victims – the patients, the doctors and the future of Medicine

By Dr Rajeev Sudan, MD (AIIMS, New Delhi)

The medical profession is one of the oldest and the most revered one as well. It is as old as human civilisation. There are records of stone-age doctors using herbs to treat illnesses. Our own Ayurveda dates back to 4000 BC. The profession is revered because of its inbuilt compassion and empathy. The society considers healing as divine and, hence, doctors are given the moniker “next to God”.

The profession itself needs a lot of discipline, patience and perseverance to learn the skill, science and art of medicine. The long and strenuous training many a times creates a crisis of faith and tests your self confidence. One has to have an unfailing optimism in difficult times during patient management. India post Independence, followed a socialised healthcare model, wherein the Government provided healthcare services from primary till tertiary levels.

However, the Government spending on healthcare stagnated while the population grew manifold.  The universal coverage by health services became utopian. This led to a scenario where private healthcare services came in to fill the void. The Government hospitals got overwhelmed with patients and their service got affected. Many patients who could afford to pay higher costs shifted to private healthcare, which was managed by doctors or trusts.

These primary and healthcare hospitals, however, could not manage the patients needing tertiary healthcare, as the facilities needed big investments, administrative skills and large skilled human resources. This is where the corporate sector stepped in. These corporate houses ran multiple successful profitable businesses and health sector became one of the fastest growing business verticals.

That’s how commercialisation of the healthcare sector started. They had moneybags and administrative skills and only needed eminent and skilled doctors to run the hospitals. They started luring doctors with pay packages unheard of till that time. Since the skill pool was small, the pay cheques kept getting better.

Many jumped into this bandwagon and started enjoying the exalted economic status. We were given swanky cars that most of us could never afford. Many doctors could see through the trap and left these five-star hospitals very soon after joining. The ones who continued became cogs in the wheels of corporate greed.

The corporates had promoters and shareholders to scrutinise the balance sheets and, hence, the profession shifted from being noble and profitability became the buzzword. They adopted all possible ways to extract money. Many of the terms of the hospitality industry became common jargon in hospitals. The concept of welfare was sold as packages, a purely commercial term.

The medical implant and pharmaceutical industries became willing partners to this practice. The maximum retail price of the implants and drugs was fixed many times the cost of their landing prices. Since corporate hospitals had bargaining power, they bought them in bulk through their sister concerns and sold to the patients at huge profits.

The inventory had to be rolled fast, so the doctors were indirectly under pressure to use them. The valid indications of their use were often neglected. The doctors using these implants got good publicity with kind help from implant companies in all the conferences and seminars, creating envy. Many doctors in smaller hospitals followed suit. Similar things happened in the pharmaceutical business. The rot became widespread.

However, honest and hard working doctors suffered the most. The society judged them by their material wealth and few cared for the excellent service they rendered. As the society came to understand the nexus, the trust in medical professionals became the casualty. The bad media coverage, stories of negligence (often exaggerated), overcharging etc have ushered in a crisis in the medical profession.

The recent incidents of medical negligence in corporate hospitals have further added to the discomfort of the society. In one such case of premature delivery of twins at 22 weeks, one child was still born and other sibling was presumed dead. However, to the utter horror of relatives the presumed dead child showed signs of life and was rushed to a hospital where he succumbed after a week of battling for life.

There can be debates about the viability of a 22-week baby but the entire episode was badly handled, pointing to professional apathy. The baby most likely would not have survived or survived with severe neuro-developmental disorders. The doctors may have explained these facts to the family but failed to show the much needed sensitivity and professionalism. No attempts to resuscitate or confirm death of the baby were undertaken. The public outcry over this callous attitude is justified and has further lowers the societal trust in the medical profession.

The Government, too, seems to be clueless and has taken knee jerk decisions. The decision to cancel of medical licence of the hospital seems to be done in haste and is allegedly one-sided. It amounts to denying medical healthcare to regular patients of the hospital. A detailed enquiry should be conducted into this incident and specific punitive action taken only after that. The doctors and hospital should be allowed to put forward their defence.

In another incident involving a corporate hospital, serious charges of profiteering and negligence were levied. A young patient of dengue shock syndrome was admitted to the intensive care unit and unfortunately did not survive. The hospital bill of around Rs 16 lakh, given to the attendants, was contested by them as gross overcharging.

There were genuine doubts about the pricing and quantity used for of certain disposables. The hospital, to my knowledge, did not come forward to explain the anomalies. Such cases need to be investigated by a proper forum. The citizens’ concern over overcharging by corporate hospitals is justified but statements like “murder by the hospital” by a senior politician of Haryana Government is condemnable too. They should be reminded that it is the lack of facilities at Government hospitals that forces people to seek treatment from private hospitals.

The adverse perception about the medical profession results in harassment and intimidation of doctors, especially in stressful and charged atmosphere of emergencies. The lack of public information about medical procedures, poor communication skills of overworked doctors and general mistrust often leads to conflicts. Add to that, the overall poor governance of the nation and things take an ugly turn much too often.

Stories of violence against doctors discourage most of us to take risks. Recently, a 500-strong mob vandalised a hospital in Mumbai after the death of a 22-year-old patient who had had a heart attack. They beat up many doctors. The police was a mute spectator of this ordeal. The damage to the infrastructure can be repaired but the doctor’s confidence is destroyed forever.

There are countless such incidents happening all over the country and are widely circulated in closed professional groups. The anxiety, anger and anguish this violence spreads among the medical community is damaging to say the least. Many doctors are leaving the profession or the country. I wonder what society will gain by vilifying the entire profession.

The doctors, patients and the Government have to seriously introspect about this unfolding crisis. The tumbling image of the profession will dissuade talented students from joining Medicine, a trend harmful to society in future. The patients hope and trust in doctors are the hidden components of the prescription and are essential to healing. How can a doctor treat a patient when he has a lurking fear about his safety and unnecessary litigation?


The slow process of adjudication due to paucity of staff demoralises the victim. The Government must look into this aspect and appoint young judges to settle cases in Consumer Forums, as opposed to retired judges

By prem singh, advocate, delhi high court

The debate on the ethics and conduct of doctors and hospitals is raging, thanks to the Rs 15.59 lakh bill raised by Fortis Hospital, Gurugram, on the death of a girl suffering from dengue, and the unfortunate incident of a newborn being declared dead despite being alive, by doctors of Max Hospital.

That Delhi’s Health Minister Satyendra Jain announced the cancellation of Max’s medical licence is a good move. However, these two incidents are only a few cases of numerous incidents of medical negligence which have gone unnoticed by the media and the Government.

One of the biggest reasons of cases not being taken to their conclusion is that the suffering family goes into grief and does not follow up on the litigation against the erring hospitals and doctors. Due to the apathy of Government bodies responsible for monitoring private hospitals and the bad condition of disposal of cases at Consumer Forums, the culprits continue to make hay.

Negligence is a civil liability under the Law of Torts which means breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do. Or doing something which a prudent and reasonable man would not do (see Law of Tort, Ratanlal & Dhirajlal).

A doctor is expected to work in accordance with an ordinary skilled professional standard of care. A doctor is not said to be negligent if he has acted in accordance with a particular kind of practice and a body of opinion takes a contrary view. Thus, while doing a diagnosis and treatment, if a doctor has adopted a certain kind of procedure which is ordinarily being followed by the doctors, even if, the procedure failed to cure the disease, he can’t be held guilty of medical negligence.

The Supreme Court in the case of Dr Martin F D’Souza of the Nanavati Hospital, Mumbai, who was guilty of negligence on a complaint from Mohd Ishfaq, treated for renal and severe urinary tract infection, held that “if a person practices medicine without possessing either the requisite qualification or enrollment under the Act on any State Medical Register, he becomes liable to be punished with imprisonment or fine.” In this case, the court also laid down the precautions which doctors/hospitals should have taken:

(a) Current practices infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly.

(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over a telephone, except in an acute emergency, should be avoided.

(c) A doctor should not merely go by the version of the patient regarding his symptoms but should make his own analysis, including tests and investigations where necessary.

(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.

(e) An expert should be consulted in case of any doubt.

The service provided by the hospital and doctors comes under the Consumer Protection Act, 1986. If someone feels aggrieved with a doctor or hospital due to wrong treatment, he can file a complaint in the Consumer Forum within whose jurisdiction the cause of action arises or within the jurisdiction of such hospital or doctor or clinic is situated. Interestingly, the Consumer Protection Act, 1986, also empowers the Central and State Governments to file complaints on behalf of consumers. However, there are no instances of complaints filed by any Government as yet.

When the Indian Medical Association took the matter to the Supreme Court questioning the applicability of the Act on medical professionals and hospitals, in Indian Medical Association vs VP Santa case, it held:

“(1) Service rendered to a patient by a Medical Practitioner by way of consultation, diagnosis and treatment falls under CP Act.

 (2) The Service rendered free of charge at Government hospital/health centre/dispensary or by a non-government hospital/nursing home and by a medical practitioner attached to such hospital/nursing home is not covered by the Act.

(3) The services rendered at non-governmental hospital/nursing home where charges are collected from some and not collected from others, the services rendered falls under the Act irrespective of the fact that the service was rendered free of charge to some poor persons. The patient obtaining free service at such hospitals also is a consumer under the Act.

(4) Where a part of conditions of service the employer bears the expenses of medical treatment of an employee and his family members, the services to such an employee and his dependants by a medical practitioner or a hospital/nursing home would not be free service excluded from the purview of the Act and would constitute ‘service’ under the Act.”

When someone approaches the court/consumer forum for the negligence of a doctor/hospital, it needs to be proved that the said hospital/doctors were negligent in conduct. However, the medical profession is a technical profession, thus, it is difficult for a layman to understand and decide whether the procedure or the treatment technique adopted was wrong or right.

In the Savita Garg vs Director, National Heart Institute, case, wherein her husband AK Garg died due to negligence of the doctors and improper medical treatment at the Institute, the Supreme Court observed: “It would be too much a burden on the patient or the family members to undertake a searching enquiry from the hospital to ascertain the names of treating doctors or the staff and to show who were responsible for the death of the patient in intensive care unit. The hospital is in a better position to disclose what care was taken or what medicines administered to the patient.”

Death of someone’s near and dear one can’t be compensated, however, by granting compensation and imposing punishment upon the erring hospital/doctor, a deterrent can be created so that the negligence may not be repeated. In case of death of a patient due to negligence of a doctor/hospital, the police either suo motu or upon complaint of the aggrieved person can register a case of 304A IPC (causing death by negligence). Many times, doctors leave the medical instrument inside the body of the patient. This kind of gross negligence must be severely punished. In the last many years, with the rise of private hospitals, cases of medical negligence have also gone up. However, courts have also come down heavily on the erring medical professionals.

In September 1990, Bangalore-based software engineer Prashant S Dhananka got admitted to Hyderabad’s Nizam’s Institute of Medical Sciences (NIMS) hospital. His test report showed that he had a tumour in his chest. A surgery was conducted on him to remove a sample of the tumour to examine if it was malignant. Dhananka alleged that the surgeon found the tumour to be benign, but without consulting a neurosurgeon, he went ahead and removed the tumour, damaging blood vessels connected to the spine, leaving him paralysed below the waist.

In 1993, Dhananka moved the NCDRC seeking damages of Rs 5 crore for medical negligence. Dhananka, who argued his case in person, said that the judgement would bring clarity on the damages awarded in such instances. The NIMS had appealed to the Supreme Court in 1999 after NCDRC awarded a Rs 14 lakh compensation to Dhananka, Rs 1.5 lakh to his father and Rs 25,000 as costs. The Supreme Court in 2009 asked NIMS to pay Rs 1 crore compensation to Dhananka.

In another case, highest ever compensation was awarded in a medical negligence case of a US-based Indian-origin doctor Anuradha Saha, a child psychologist who had come to her hometown Kolkata in March 1998 on a summer vacation. She had complained of skin rashes on April 25 for which the doctor of the Kolkata-based Advanced Medicare Research Institute (AMRI) prescribed an anti-allergic drug. As Saha’s condition failed to improve in six weeks, she was flown to Breach Candy Hospital, Mumbai, where she was found to be suffering from a rare and deadly skin disease —Toxic Epidermal Necrolysis. She died there on May 28, 1998. Her husband Dr Kunal Saha, an AIDS researcher in Ohio, filed a criminal and civil case against the doctors and the hospital. In 2009, though the apex court absolved the doctors and the hospital of criminal liability for medical negligence, it held them culpable of civil liabilities and referred Saha’s plea for compensation under provisions of the Consumer Protection Act to National Consumer Dispute Redressal Commission (NCDRC), which, had in 2006, dismissed, the case. After the NCDRC judgement, Saha again moved the apex court and the three doctors also filed an appeal. The Supreme Court, in October 2013, directed the AMRI hospital to deposit Rs 5.71 crore. The doctors —Sukumar Banerjee and Balram Prasad — were asked to deposit Rs 10 lakh each while the third doctor Baidyanath Haldar was told to deposit Rs 5 lakh. He fought the legal battle for close to 19 years.

In this case, the court adopted the Multiplier method provided under Motor Vehicle Act for determining of compensation under which the compensation was calculated on the basis of income and age of the dead person. The court also held that as the complainant had interfered in the treatment of deceased, a sum equivalent to 10 per cent would be deducted from the payable amount of compensation.

Though the courts and consumer forums have taken strong action against the erring doctors and hospitals in cases of medical negligence, the slow process of adjudication demoralises the victim. Paucity of staff impacts adjudication. The Government must look into this aspect and appoint young and energetic judges to settle cases in Consumer Forums, as opposed to retired judges, which is the practice now.




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