Medical negligence: Shifting focus from punishment to patient safety

The Bhartiya Nyaya Samhita, introduced to replace the colonial Indian Penal Code, was a promised transformative step toward justice-focused reform. Yet, Section 106 of the BNS continues to emphasise imprisonment and penalties, perpetuating a punitive approach rather than addressing systemic gaps

In May 2024, the Supreme Court of India, in the D.K. Gandhi PS case, clarified that legal professionals are excluded from the Consumer Protection Act’s (CPA) 1986 ambit, terming their services as technical and professional. Interestingly, the judgment suggested revisiting the landmark V.P. Shanta v. Indian Medical Association (1996) case, which had included the medical profession under the CPA. Surprisingly, by November 2024, the Court reversed its stance, criticising the reference (made in May 2024 in the DK Gandhi case) to the Shanta judgment and refusing to reconsider the inclusion of doctors under the Act. While the Court may have reasons for its decision, it does invite a deeper discussion about medical negligence, its implications, and a larger issue that has been sidelined—the role of dual professionals in enhancing justice.

Medical errors are unintended mistakes that may or may not constitute negligence. These errors often arise from negligence, systemic failures, human limitations, or the inherent uncertainties of medical care. An error does not automatically translate into negligence. Consider a patient with bipolar disorder (a mental health issue in which a person has alternative manic and depressive episodes over a time period), who initially presents with depressive symptoms. Without the manifestation of manic episodes, a clinician might reasonably diagnose this as dysthymia (severe depression). This diagnostic error is based on an incomplete clinical picture, not negligence. Similarly, systemic factors such as resource constraints in a rural hospital might lead to delays in critical diagnostics, resulting in errors that fall short of the threshold of negligence.

Medical negligence however, involves a breach of duty of care that results in harm. This breach is measured through the Bolam Test, which examines whether a responsible and skilled practitioner in the field would have acted similarly under comparable circumstances. Medical negligence may arise from acts of commission, such as prescribing a steroid drug for an HIV patient, or acts of omission, such as failing to perform a urine pregnancy test in a woman with missed periods. However, not all adverse outcomes in medical treatment stem from negligence. Many are unavoidable consequences of medical complexities.

Acceptable vs unacceptable risks

Medical complications are acceptable risks inherent in medical interventions. Vitamin B12 deficiencies are anticipated in diabetic patients taking metformin drugs and do not constitute negligence. Iatrogenic causes are issues that arise directly from medical interventions but are not always indicative of negligence. Hair loss during chemotherapy is an acceptable iatrogenic cause while leaving a surgical sponge inside a patient is an unacceptable one. Similarly, medical maloccurrences are rare, unavoidable events that occur despite adherence to standard practices. Recanalisation of the fallopian tube resulting in pregnancy after family planning or a rib fracture during CPR is unfortunate but not negligent.

India’s approach to medical negligence remains largely punitive, focusing on assigning blame and enforcing penalties rather than investigating underlying causes to enhance patient safety. The legal framework in India often treats medical negligence from a punitive perspective. The Bhartiya Nyaya Samhita (BNS), introduced to replace the colonial Indian Penal Code (IPC), was a promised transformative step toward justice-focused reform. Yet, Section 106 of the BNS continues to emphasise imprisonment and penalties, perpetuating a punitive approach rather than addressing systemic gaps. This lack of emphasis on preventive measures, such as root cause analysis, hinders the identification of systemic gaps.

The National Patient Safety Framework

The National Patient Safety Implementation Framework (2018–2025) explicitly acknowledges the inadequacy of funding and research in patient safety. The Indian Council of Medical Research (ICMR) has 11 priority research areas and patient safety is excluded in the list. Organisations including the Indian Medical Association (IMA) have adapted to this punitive environment by running schemes such as the Professional Protection Linked Social Security Scheme (PPLSSS), which acts as an insurance cover for doctors to manage “prospective compensations” in cases of alleged negligence. These schemes provide a safety net for practitioners but they underscore the systemic failure to prioritise patient safety.

India has implemented initiatives like the National Quality Assurance Standards (NQAS), LaQshya for maternal and newborn care, MusQan for child health services, and Kayakalp for hygiene and infection control. These initiatives focus on improving healthcare quality but they are unable to achieve the broader goal of healthcare without harm. Pharmacovigilance and adverse event reporting programmes demonstrate intent but have gaps in integration, funding, and execution.

Also Read:Carry on, doctor: On the amended Bharatiya Nyaya (Second) Sanhita Bill

Human expertise

The next critical challenge in adjudicating medical negligence is the lack of human expertise bridging the medical and legal domains. Judges are adept in legal reasoning but lack technical medical knowledge and vice versa for doctors. This gap limits the potential for fair justice delivery.

Unlike countries like the United States, where professionals can practice both law and medicine simultaneously, India prevents such dual practice. The judgment in Dr. Haniraj L. Chulani v. Bar Council of Maharashtra and Goa 1996 prohibits individuals from practising law and medicine concurrently, even after obtaining qualifications in both professions. This restriction handicaps India by disallowing motivated individuals from contributing their dual expertise. Professionals with dual qualifications could act as efficient amicus curiae and ensure justice for patients and doctors. The Dr. Haniraj L. Chulani case judgment deserves reconsideration. Allowing individuals to practice both professions simultaneously would create a cadre of cross-disciplinary experts capable of addressing the challenges of medical negligence with greater efficiency and fairness.

While medical negligence is unpardonable and unjustifiable, it must be dealt within the framework of “intent” in criminal jurisprudence. Unlike criminal acts such as murder, medical negligence stems from professional lapses rather than malicious intent. BNS treats negligence on a par with criminal offences, creating a punitive environment that discourages open reporting and systemic learning.

(Dr. C. Aravinda is an academic and public health physician. The views expressed are personal. aravindaaiimsjr10@hotmail.com)

Published - January 13, 2025 03:19 pm IST