On seventh October this 12 months, Babita Rai, a 42-year-old authorities faculty instructor in Jamshedpur, Jharkhand, was admitted to the Tata Motors Hospital in the identical metropolis. Because of a 6 cm ovarian cyst she was scheduled for a hysterectomy and an oophorectomy (surgical elimination of the uterus and ovaries respectively), two days later. According to her brother Rajesh, Rai felt a swelling on the left facet of her abdomen after the surgical procedure. Four days later, on 13 October, Rai was useless from septic shock, Rajesh added.
A 13 October case abstract from the hospital signifies that Rai suffered perforation of the colon. Rajesh alleges that when the household tried acquiring data of the surgical procedure put up mortem, they discovered the consent type tampered with. He mentioned the title of a senior laparoscopic surgeon – for whom Rai had supplied her consent – had been struck via, and the title of a junior physician written by the facet.
Rajesh says that the senior surgeon couldn’t make it on time, and the junior physician determined to do the surgical procedure herself as a substitute of rescheduling. He additionally alleges that the hospital didn’t carry out routine postoperative follow-up assessments to make sure that there have been no ensuing problems. In different phrases, in keeping with Rajesh, his sister’s loss of life was a outcome of “gross medical negligence”.
At the time of scripting this piece, Rajesh has been in search of justice for his sister’s loss of life attributable to alleged medical negligence by writing to a number of authorities our bodies, together with 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’s but to obtain a constructive response.
Medical Negligence
Babita Rai is one of the tens of millions of folks whose loss of life has been counted by family below medical negligence yearly in India (in keeping with a 2018 estimate, the yearly loss of life depend attributable to medical negligence stood at roughly 5 million).
In a latest improvement, Home Minister Amit Shah introduced in Parliament final week that docs shall be exempted from legal prosecution in circumstances of loss of life attributable to negligence. However, in keeping with Section 106(1) of the Bharatiya Nyaya (Second) Sanhita (BNSS), the rulebook set to interchange the Indian Penal Code, docs will proceed to face a two-year imprisonment and/or a high quality if convicted. This is lesser than the Sanhita’s beneficial punishment of 5 years for different circumstances of loss of life by negligence (for instance, by rash driving).
In his announcement to the Lok Sabha, Mr. Shah claimed that the Indian Medical Association (IMA), the largest consultant physique of docs in India, had requested the Home Ministry for an exemption from legal prosecution.
According to Dr. R.V. Asokan, the IMA president, the Association had first raised issues about rising legal circumstances of negligence being filed in opposition to docs in an April 2023 assembly. The agenda merchandise A-2 from the assembly doc deems legal prosecution of docs for medical negligence “irrelevant” and calls for that docs be “exempted” from it.
After the April 2023 assembly, in September 2023 the IMA made a submission to the Parliamentary Standing Committee on the BNSS. According to the submission, the IMA reported round 98,000 deaths per 12 months attributable to medical negligence in distinction with 52 lakh medical negligence circumstances filed in opposition to docs. Further, the IMA additionally requested {that a} regulation criminalising violence in opposition to docs be included in the BNSS since “75% of doctors and paramedics face violence as per IMA”.
The IMA additionally estimated the financial loss attributable to violence in opposition to docs to be in the order of billions of rupees per day.
Finally, the IMA additionally requested in its submission that the BNSS make a transparent distinction between medical “negligence” and medical “accident”. While “negligence” would check with a “reckless”, “conscious and voluntary disregard of the need to use reasonable care” on half of the physician, an “accident” would contain sudden and surprising deaths of sufferers below medical care with out aware intention to hurt on the half of the physician.
The BNSS in its present type has not made any express distinction between medical negligence versus accident.
That mentioned, a number of current clauses in the BNSS could give protection to some docs from legal prosecution. For instance, clause 26 offers an illustrative instance of acts executed in “good faith” which might be exempt from legal prosecution:
A, a surgeon, realizing {that a} specific operation is more likely to trigger the loss of life of Z, who suffers below the painful criticism, however not meaning to trigger Z’s loss of life, and intending, in good religion, Z’s profit, performs that operation on Z, with Z’s consent. A has dedicated no offence.
In an identical vein, clause 30 provides:
Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z’s loss of life, however in good religion, for Z’s profit, performs the trepan earlier than Z recovers his energy of judging for himself. A has dedicated no offence.
Conundrums
Explaining the must exempt docs from legal prosecution for negligence, Dr. Asokan mentioned, “[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 different phrases, Dr. Asokan holds that exemption of docs from legal prosecution will present the nation “better results in patient care.”
However, bioethicists, attorneys, and members of the public categorical issues {that a} blanket exemption of docs from legal prosecution for negligence would possibly result in a rise in medical malpractice and put marginalised populations at an elevated threat.
Rohin Bhatt, a Delhi-based bioethicist and lawyer, mentioned that the dialog round medical negligence is incomplete with out contributions from sufferers and affected person advocacy teams. He believes that “patient advocacy groups have not been given the voice they deserve [in this conversation].”
Further, he additionally argues that owing to the “power imbalance” in the doctor-patient relationship, an act of negligence on the half of the physician calls not for a decrease punishment however a better 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 well being researcher, added {that a} blanket exemption would possibly result in a rise in circumstances of deaths by medical negligence amongst girls, queer, and transgender individuals, and those that reside in rural areas. As an instance, Samal spoke of her aunt’s loss of life in 2015. A resident of a village in Bhadrak, Odisha, her aunt died of septic shock after a nurse-cum-midwife allegedly did not detect a miscarriage. Samal feels that this might have been prevented had the nurse-cum-midwife taken her aunt’s concern of not feeling the child’s motion extra critically.
Geet, a Bangalore-based chartered accountant, arts remedy practitioner, and a non-binary particular person, added that they’re involved {that a} blanket exemption of docs from legal prosecution would compound medical malpractice in opposition to folks 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 expenses that their mom, who died of uterine most cancers – associated problems in 2018, was a sufferer of medical negligence that included “hiding of information, not taking her concerns seriously, medical abuse, and fatphobia.” (Medical fatphobia is outlined as the discrimination by medical practitioners in opposition to sufferers who’re seen as obese. According to reviews, medical fatphobia could lead not solely to emotional and psychological misery for sufferers, but in addition incorrect dosing of medicines on the half of the physician.)
Both Geet and Samal additionally level out that in the absence of a authorized recourse for sufferers once they suspect medical negligence, they could lose religion in the authorized system. This, in flip, can result in a rise in violent assaults on docs.
Next Steps
As a subsequent step, Dr. Asokan mentioned that the IMA is trying to “dialogue” with the authorities and the public with a view to set up that exempting docs from legal prosecution is helpful for affected person 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 mentioned.
On the different hand, Geet stresses on the significance of a nationwide survey earlier than the authorities 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 dependable nationwide knowledge on the identical, any choice to exempt docs from punitive penalties of their motion will represent a lopsided choice in favour of docs, they added.
(Sayantan Datta is an impartial science journalist and a school member at the Centre for Writing and Pedagogy, Krea University. dattasayantan95@gmail.com)
