The Supreme Court verdict awarding almost Rs 6
crore to Kunal Saha as compensation for the death of his wife Anuradha
has caused the wrong kind of disquiet in the medical fraternity.
Treating Anuradha's condition required a sophisticated physical
infrastructure and highly skilled medical
professionals, both of which
are not readily available in India, whatever the hype may say. Her death
was not so much out of the negligence of doctors as out of the
negligence of our society to develop a truly high-quality medical care
system. The medical profession, especially doctors, must take a large
share of the blame for this state of affairs. They have not been vocal
in pressing the government to establish such a system.
George Thomas (
george.s.thomas@gmail.com) is an orthopaedist at St Isabel’s Hospital, Chennai, and was formerly editor of Indian Journal of Medical Ethics.
The judgment of the Supreme Court of India in October 2013 awarding
approximately Rs 6 crore with 6% interest per annum from the date of
application till the date of payment to Kunal Saha for the death of his
wife, Anuradha, has sent ripples through the medical fraternity. The
amount of compensation has been the main focus of debate in newspapers,
and in email lists of medical practitioners, although the Supreme Court
gave clear reasons for the award. This was, primarily, that the persons
concerned were doctors and citizens of the US, where income levels are
much higher than in India.
The fear that a precedent has been set and that such large amounts as
compensation will become routine appears to be without foundation
because the largest component, over Rs 5 crore, is on account of the
income that Anuradha could have earned in the US. In this particular
judgment, which came 15 years after Anuradha’s death, the Court ruled on
the quantum of compensation to be awarded to Saha, the proportion in
which the amount should be paid by the doctors and the hospital, and
whether any amount should be deducted for “contributory negligence” by
Saha. The Court quoted extensively from an earlier judgment (
Malay Kumar Ganguly vs Dr Sukumar Mukherjee and Others; 7 August 2009) in which the question of negligence in Anuradha’s treatment and who was responsible was dealt with.
What Happened?
According to the sequence of events recorded in the judgment in the
Malay Kumar Ganguly case, Anuradha and her husband arrived in Kolkata
for a vacation on 1 April 1998. Anuradha developed a fever along with a
skin rash on 25 April 1998. On 26 April, Sukumar Mukherjee attended to
her on a professional visit at her parental residence. He did not
prescribe any medicines. On 7 May, the skin rash appeared more
aggressively, and the patient was taken to Mukherjee’s clinic. He
prescribed an injection of depomedrol 80 mg twice daily for three days.
However, the patient’s condition deteriorated, and she was admitted to
the Advanced Medicare and Research Institute (AMRI) under Mukherjee. On
17 May, she was shifted by air ambulance to the Breach Candy Hospital in
Mumbai, where she died on 28 May 1998.
A relative of Saha, Ganguly, filed a criminal complaint against three
doctors in connection with the death of Anuradha in November 1998. Saha
himself filed a complaint before the National Consumer Disputes
Redressal Commission (NCDRC) and before the West Bengal Medical Council
in 1999. In 2000, he filed a complaint before the NCDRC against the
Breach Candy Hospital and its doctors. This complaint was withdrawn in
2003.
The case of criminal negligence went up to the Supreme Court and in the Malay Kumar Ganguly judgment the Court stated,
203. Medical science is a complex science. Before an inference of
medical negligence is drawn, the court must hold not only existence of
negligence but also omission or commission on his part upon going into
the depth of the working of the professional as also the nature of the
job. The cause of death should be direct or proximate. A distinction
must be borne in mind between civil action and the criminal action.
204. The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not necessarily be
negligence in criminal law. For negligence to amount to an offence the
element of mens rea must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence should be much high
degree. A negligence which is not of such a high degree may provide a
ground for action in civil law but cannot form the basis for
prosecution. To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or failed
to do something which in the given facts and circumstances no medical
professional in his ordinary senses and prudence would have done or
failed to do.
The judges ruled that there was no criminal negligence
, but
that there was negligence. The case was sent back to the NCDRC to
determine the quantum of compensation. The present case in the Supreme
Court came about because Saha was not satisfied with the compensation
awarded by the NCDRC, and objected to some remarks made. The opposite
parties, that is, the doctors and AMRI, appealed because they felt that
the quantum of compensation was excessive.
Medical Questions
The amount of compensation aside, what should truly worry the medical
profession is the management of the patient and her death. From a
reading of the judgment, one understands that the patient consulted the
doctor for a skin rash, which was diagnosed as an allergy in the first
instance. This was a perfectly reasonable diagnosis. However, the
treatment of giving a long-acting steroid injection, and continuing with
the same treatment even after the patient’s condition deteriorated,
giving doses far in excess of standard recommendations, was certainly
difficult to justify. Once the diagnosis of toxic epidermal necrolysis
(TEN) was made, it should have been clear that the patient had a
life-threatening illness.
The mortality rate in this uncommon illness is very high and depends
on the amount of skin affected. The mortality rate of 10% to 70% depends
on a number of factors, very importantly, the quality of nursing care.
It is impossible to know the mortality rate in India because we lack
data. The Court went into a lot of detail regarding the disease and
consulted several experts, both from India and abroad. What seems to
have gone against the doctors is that even those doctors who were in
favour of giving steroids agreed that a long-acting steroid was not
advisable and the dose was excessive. Many doctors will argue that the
steroid was not the cause of death, but it was the nature of the illness
and the lack of supportive care. It appears that the defendants were
not able to make this case successfully.
Comments on Medical Care
India has one of the most poorly organised medical systems in the
world. The successful treatment of a patient with a life-threatening
illness like Anuradha had, requires plenty of resources, both physical
and human, and one cannot consistently expect a good result in India.
The reason for this is that these kind of illnesses require not only a
lot of physical infrastructure, but also a team of highly skilled
professionals, not only doctors, but also nurses, physiotherapists,
dieticians, and others. Such a centre does not exist in India. The hype
about so-called “world class” medical care in India is an empty boast.
It only means that some procedures, routine in the West for well over
half a century, like coronary artery bypass grafting, joint replacement,
and the like, can now be safely performed in India. If there is a
serious complication, or a rare life-threatening illness like Anuradha
had, the patient will be fortunate to survive.
The reason for this state of affairs is that intensive care units
with the infrastructure and human resources to successfully manage such
complex medical problems are very expensive to set up and maintain. In
the best performing medical care systems of western Europe, a few such
centres have been established, and all patients requiring this level of
care are managed in them. In India, the government has more or less
withdrawn from such a level of care. The intensive care units in the
government sector, even in states which are considered better than
average, like Tamil Nadu, are plagued with insufficient physical and
human resources. The highly fragmented private sector, where profit is
the main criterion for establishment of facilities, obviously does not
find it commercially viable to establish such high dependency units.
Physical infrastructure may be better than the government sector, but
human resources are equally poor. A highly skilled team of doctors,
nurses, and other support staff to handle such complex problems simply
does not exist in India. The protocols for treatment of TEN, so
meticulously quoted by the Supreme Court, are just not possible in
India.
The question arises, why the doctors did not inform the patient and
Saha about the lack of resources? This points to some more fundamental
systemic problems in medical care delivery in India. Private sector
medical care in India is intensely competitive. Doctors, even
well-established ones, fear loss of practice. Hanging on to a patient
who would best be treated by somebody else is common, out of fear that
referral will be seen as a lack of competence. In the government sector,
no one wants to own the patient and in the private sector many doctors
do not want to refer. A public perception of “best doctor”, “best
hospital”, and the like contributes. In medicine, there are a lot of
competent doctors and quite a few incompetent ones. The business of
scoring cards, based on unimportant criteria, contributes to an
atmosphere in which doctors themselves come to believe the media-created
image, assiduously create and maintain it, and a lot of harm is done as
a consequence. The hubris of “I know it all” is very common among
doctors in India.
This points us to an even more serious problem in medical care in
India. There is no system which ensures that a person having an illness
will go through a process that is likely to find the cause and treat it
appropriately. If the patient is poor, he or she has no option but to
use the government sector. Here, overcrowding, lack of infrastructure,
long waiting times, and apathy may all conspire to result in less than
optimal outcomes. If the patient accesses private care, he or she has to
make a guess as to which hospital and doctor they should go to. Here
the social buzz of “best doctor” and “best hospital” make a lot of
difference and patients have little else to go by. As the Saha case
illustrates so starkly, these are poor criteria. We do not know the true
extent of the problem of medical error (not all may be negligence)
because we do not have any study of the problem. It is amply clear,
however, that the present fragmented system of medical care is highly
prone to error.
India badly needs a structured, universally accessible medical care
system. It requires setting up a tiered system from primary care to
tertiary care. It needs the development and training of professionals of
various levels of skills. The tertiary care centres should be staffed
adequately and with highly skilled staff at every level. Anuradha died,
not so much out of the negligence of the doctors as out of the
negligence of society to develop a high-quality medical care system. The
medical profession, especially doctors, must take a large share of the
blame for this. They have not been vocal in pressing the government to
establish such a system. The private sector, concerned mainly about
profit, is certainly not going to do it.
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