Medical negligence

For responsible private health care, improve public hospitals

In a watershed moment for private health care in India, the Supreme Court has awarded close to Rs 6 crore in damages - amounting to Rs 11 crore once interest is included - for a case of medical negligence. The successful plaintiff was Kunal Saha, whose wife died 15 years ago while being treated at AMRI, a private hospital in Kolkata. The apex court has made two departures from past practice in this verdict. First, it has imposed most of the damages on the hospital; second, it has reversed its previous practice of being considerate towards medical practitioners. This, presumably, reflects the changing nature of Indian health care: for-profit private health care is expanding rapidly. Many of those facing medical emergencies search for the money necessary to access private health care, since the state of public health care is mostly appalling. After this verdict, not only will doctors found guilty of negligence likely face far heavier legal punishment than in the past, a hospital will have to take fuller responsibility for things that go wrong under its roof. It cannot wash its hands of the matter by saying that decisions on treatment are made entirely by consultants and the junior doctors under them.

While such incentives to develop a greater sense of responsibility are to be welcomed, there is a downside for patients. The fear of high damages can prompt doctors to play safe and not take risks that could save lives. The fear will add to insurance premia paid by doctors for liability cover and, eventually, to costs for patients. Given the US phenomenon of high civil damages, treatment regimens are now increasingly protocol-driven, and little doubt is permitted over what to do in given situations. But India should definitely avoid the American model. What a doctor should be mindful of the most is not malpractice suits, but peer opinion. The courts could best help in questions of criminal negligence, and there is a need to keep looking at what constitutes criminal negligence in health care. For some service providers, such as airline pilots and doctors, even a bit of carelessness can have serious consequences.

What the damages do not change is the lot of ordinary patients. It took the husband, an NRI doctor, 15 years to get a final verdict. He understood the technical complexities and on occasions pleaded the case himself. In order to pursue justice, he spent a fortune and neglected his professional work. He lost his tenured teaching position in the US because he was in India for long periods to pursue the case. Clearly, Indians' quest for better health care does not lead down the monetary compensation route. The best way to improve private health care, to give it greater commitment and higher ethical standards, is to improve public health care. Once public health care achieves a minimum standard of delivery, citizens will have a choice. They will then ask for and, hopefully, receive minimum standards in private health care.