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Thursday, July 19, 2018

Gorakhpur tragedy turns the focus on medical negligence

Medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful practitioner would have committed. What is expected of a medical practitioner is ‘reasonably skilful behaviour’ adopting the ‘ordinary skills’ and practices of the profession with ‘ordinary care’.

Written by Ushy Mohan Das | Published: August 14, 2017 12:09:10 pm
Gorakhpur tragedy, Gorakhpur Encephalitis, medical negligence, Uttar pradesh Encephalitis deaths, Gorakhpur child deaths, indian express opinion Japanese Encephalitis has been a major challenge in the region since 1978. The government, doctors and citizens need to work together to uproot it.

Why do horrific things keep happening to babies in India? What has happened to the dignity of human life? Especially when it is that of a child who can barely even voice her concerns, or fight for her right to life. The Gorakhpur incident reeks of apathy and reflects increasingly on society’s indifference to the life of a child.

Japanese Encephalitis has been a major challenge in the region since 1978. The government, doctors and citizens need to work together to uproot it. But while WHO protocols prescribe a preventive vaccine, even these could be an issue in UP as cold chains are never maintained in such hospitals. It is an unsaid norm especially in government hospitals to seek commissions to pass and clear bills. There is rabid malpractices and manipulation at every stage from the tendering process. I suspect that stores could have a lot of expired drugs too.

If an estimated 98,000 people die every year in the United States because of mistakes committed by medical professionals, one can well imagine the figure in India.

Medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful practitioner would have committed. What is expected of a medical practitioner is ‘reasonably skilful behaviour’ adopting the ‘ordinary skills’ and practices of the profession with ‘ordinary care’. There is, however, room for ambiguity, and judicial interpretation as what is ‘reasonable’ and ‘ordinary’ is a question of fact. Essentially, doctors are generally bound to exercise an ordinary degree of care and not the highest possible degree of care. If a medical practitioner has taken reasonable care, then he cannot be held liable.

In certain cases, negligence is so blatant that it invites criminal proceedings. A doctor can be punished under Section 304A of the Indian Penal Code (IPC) for causing death by a rash or negligent act, say in a case where death of a patient is caused during operation by a doctor not qualified to operate. According to a recent Supreme Court decision, the standard of negligence required to be proved against a doctor in cases of criminal negligence (especially that under Section 304A of the IPC) should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care. Criminal liability will not be attracted if the patient dies due to error in judgment or accident. Every civil negligence is not criminal negligence, and for civil negligence to become criminal it should be of such a nature that it could be termed as gross negligence.

Very rarely can a doctor be prosecuted for murder or attempt to murder as doctors never intend to kill their patients, and hence do not possess the required level of guilty intention. When doctors administer a treatment involving the risk of death, they do so in good faith and for the patient’s benefit.

A doctor can also be punished for causing harm or grievous hurt under the IPC. However, Sections 87, 88, 89 and 92 of the IPC provide immunity from criminal prosecutions to doctors who act in good faith and for the patient’s benefit. But the defence must prove that the doctor acted in good faith and for the patient’s benefit. For example, a doctor who consciously or knowingly did not use sterilised equipment for an operation cannot be said to have acted in good faith.

A person who commits a wrongful act, shall be liable for it. The crimes are public wrongs and aim of criminal proceeding is to punish the wrongdoer. The law imposes liability on him who fails to perform duty. The wrongful act may be intentional or wilful wrong or a negligent act if the doctor fails to take proper care, precaution and is just indifferent to the consequences of his act. Lack of skill proportional to risk undertaken also amounts to negligence. Some such acts would mean

*A delay in referring to hospital on presentation of an acute condition eg brain haemorrhage, heart attack or pulmonary embolism.
*A delay in diagnosing acute infection eg meningitis or sepsis.
*Failure to provide emergency surgery or care, again in cases where there has been acute presentation.
*Mistakes on the operating table eg perforation, damage to internal organs that is difficult to repair.
*Catastrophic drug errors.
*Stillbirth or maternal death.
*Death following delayed diagnosis eg of cancer or other illness that could have been treated with earlier intervention.

About 29,000 children under the age of five – 21 each minute – die every day, mainly from preventable causes. More than 70 per cent of almost 11 million child deaths every year are attributable to six causes: diarrhoea, malaria, neonatal infection, pneumonia, preterm delivery, or lack of oxygen at birth. These deaths occur mainly in the developing world.

Healing does not seem to be on a timetable anytime in UP or many other states in India. The doctors, meanwhile, need to cultivate a whole new view to acting in good faith. Time doesn’t fix this kind of loss. No child dies without a legacy and a purpose for those of us that are left behind. It’s up to the parents. We can only honour the dead children by healing. They wouldn’t want it any other way.

I will always be unsure as to which pain is worse.
The shock of what happened or the ache of what never will.
I would rather carry a life in my heart rather than ebbed one in my arms.

I wish for no one to suffer this life sentence of grief.

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