Vidya Krishnan writes on May 26, 2018 in THE HINDU under the caption “A cure
for medical malpractice” as follows:
Three families, who each lost a child in what they consider to be cases of malpractice, have started a movement to seek strict regulation of private hospitals. Vidya Krishnan reports from Gurugram :– On July 30, 2011, at 3.26 p.m., 10-year-old Yash Arora was declared dead at Gurugram’s Medanta, the Medicity, one of India’s leading super-speciality hospitals. Yash had gone through six readmissions, two liver transplants, and numerous bouts of infections over nine months. The bill for his treatment amounted to Rs. 45 lakh.
The Aroras are from Rudrapur, a small town in Uttarakhand. They had brought their son to the hospital for liver treatment in March 2010. Yash’s father, Pankaj Arora, 42, claims that the doctors advised a liver transplant on the assumption that the patient’s family could afford it. “As soon as they discovered that we couldn’t, they started treating the patient differently,” he says. After Yash’s first liver transplant on April 1, 2011, Arora says the boy was discharged with an infection that caused the transplant to fail.
As a result, Yash had to be readmitted in a few days, on April 5. “He had his second liver
transplant on April 20, after which the hospital put him in a ‘shared room’ with a patient
suffering from drug-resistant tuberculosis,” says Arora. “This led to a lung infection,” adds his lawyer Piyush Chabra. According to Arora, the hospital put Yash in a ‘shared room’ only because they realised that the family could not afford the isolation ward, which is mandatory for immune-compromised patients who have received new organs.
Seeking closure: The Aroras were convinced that Yash was a victim of medical malpractice. But for three years they couldn’t do anything more than grieve for their only child. “I found the emotional strength to look at legal options only after the birth of my second child in 2014,” Arora says. Seeking closure, the family filed a Right to Information application with the All India Institute of Medical Sciences (AIIMS) on May 14, 2015. Arora’s first question was regarding the isolation protocol for liver transplant patients. The answer from AIIMS confirmed the family’s worst suspicion: “Absolute isolation is required”.
Seven years after his son’s death, Arora’s life revolves around documents– dozens of files
of medical records, paperwork tracking legal proceedings, newspaper clippings on medical malpractice, and treatment protocols set by the government. Despite his meticulous data gathering, there hasn’t been much progress on the legal front.Arora believes that the police never made a serious attempt to investigate the charges of
medical negligence that he had made in his FIR against the hospital. Registering the FIR wasn’t easy either. It was only after directions from a district court that the police obliged. Subsequently, a medical board at the Postgraduate Institute of Medical
Education and Research, Chandigarh, examined the medical records and dismissed the case without taking testimonies from the family.The family has appealed against the medical board’s decision in the Gurugram Sessions Court, where the case is currently pending.
Cases in the spotlight; Arora is not the only parent or family member running from pillar
to post. In Delhi, two such cases grabbed the headlines last year. During the dengue
season (July to mid-September) in 2017, a girl named Adya Singh and a boy named Shaurya Parmar, both seven years old and unrelated, died in two state-of-the-art multi-specialty private hospitals: Fortis Memorial Research Institute in Gurugram and Medanta, respectively. Adya and Shaurya died of dengue.
Adya’s family was handed a Rs. 16 lakh bill by Fortis and Shaurya’s family was given a bill of Rs. 15 lakh. The National Pharmaceutical Pricing Authority (NPPA) analysed the medical bills and found that the hospital had mark-up drugs and consumables from 200% to 1,700% in some cases. Fortis denied allegations of overcharging. To a specific query posed by The Hindu on the justification for this mark-up, Fortis handed out seven press releases in response. It maintained that the profit margins are not illegal as they do not violate the Drug Price Control Orders. The hospital said: “It should be noted that our end price to the patient is very much in line with what other private hospitals in India
charge. Looking at individual prices of any single item as a standalone takes the margin/ profit topic out of context.” It added: “All consumables are transparently reflected in records and charged as per actuals. A total of 750 pairs of gloves and 600 syringes during a 15-day stay is justifiable and acceptable when the patient is in an ICU setting.”
Adya’s father, Jayant Singh, and Shaurya’s father, Gopendra Parmar, reached out to the
media in desperation. When they both made an appearance on television, Arora knew he had to meet them. Following Adya’s death in October last year, Singh created a Facebook page called Fight Against Healthcare Corruption. It has quickly become a platform where about 6,000 people across the country have connected with him with their own stories. These families are now demanding that an independent body be set up, with civil society representatives, to investigate cases of medical malpractice.
Adya’s death led to the filing of a public interest litigation (PIL) in the Supreme Court.
The PIL demands the regulation of India’s unregulated private health sector, from
neighbourhood clinics to corporate hospitals, under Article 21 of the Constitution, which
guarantees the right to life and personal liberty. On March 23, in response to the PIL, the apex court sent notices to the Medical Council of India (MCI), the Union Health Ministry,
Haryana’s health department, the NPPA, and doctors at Fortis hospital. The PIL sought to
turn the spotlight on “a larger systematic and structured loot of desperate patients… which is engineered by and between pharmaceutical companies, diagnostic labs, doctors and ultimately corporate hospitals”.
Regulate the private health sector: In 1978, India signed the Alma Ata Declaration at the World Health Assembly, promising “Health for All” by 2000. Following up on that promise, with the aim of reaching as many patients as possible, the Indian government sought to increase the number of hospitals in the country by roping in the private sector. It allowed banks to fund privately owned hospitals. In 1983, Prathap Reddy set up Apollo hospital in Chennai, and thus was born India’s first corporate hospital chain.
“Back then, there was no debate on laws to regulate clinical establishments. This was partly because we did not see this level of medical negligence at that time. What we see now is actually medical malpractice, driven by the urge to make inordinate profits. It is a
peculiarity of corporate hospitals,” says Amit Sengupta, convener of Jan Swasthya Abhiyan, a network of civil society organisations working towards securing the right to health for all.
The Central government has been pushing for the implementation of the Clinical
Establishments (Registration and Regulation) Act, 2010, or the CE Act, which seeks to
regulate all clinical establishments in India and set treatment guidelines for common diseases and conditions. The States have to ratify this law and implement it. While the law is in effect in Arunachal Pradesh, Himachal Pradesh, Mizoram, Sikkim and all the Union Territories (except the National Capital Region of Delhi) since March 1, 2012, most States haven’t made provisions to implement it. In Haryana, for instance, where Arora, Singh and Parmar lost their children, the Act has been ratified but not implemented. In Delhi, it has been neither ratified nor implemented, says R.K. Vats, Additional Secretary, Union Health Ministry.
The Health Ministry’s recent interest in regulating the sector ahead of an election year
perhaps stems from the rollout of the National Health Protection Scheme (NHPS). “When the NHPS is rolled out, most of our patients will be going to private hospitals,”
says Vats. “We have told the State governments that while the Centre will give
60% of the funds for the NHPS, 40% will come from the States. It is in the interest of
State governments to see where their money is going. There is no moral justification for
this level of overcharging and overtreatment.” The Health Ministry is “seized of the matter” and private hospitals cannot avoid regulation for long, he adds.Proving medical negligence in India is almost impossible. There is only one major success story from which families can take inspiration. That victory was in 2013. Kunal Saha, an American citizen and doctor of Indian origin, had taken Kolkata’s AMRI Hospitals to court. In a legal battle that lasted 15 years, Saha proved that his wife Anuradha, who died in 1998, was a victim of “gross dereliction of duty” by the doctors. The patient, herself a doctor, was suffering from toxic epidermal necrolysis. This is a rare and painful condition where the top layer of the skin detaches from the lower layer all over the body. The doctor treating her administered a higher-than-recommended dose of a steroid called Depomedrol. Saha was awarded a compensation of Rs.11 crore, the highest amount in a medical negligence case in India.
A reminder but no deterrent: This case and the record compensation were hailed as
a turning point in Indian medico-legal history. The Supreme Court judgment was deemed a “deterrent and a reminder” to the medical community. But five years later, it has become clear that the case hasn’t quite made an impact on the practices of corporate medical hospitals. At any rate, it has not served as a deterrent.
Saha says that he has “absolutely no doubt” that the lack of cooperation from the medical
community is a major factor for the rising incidence of “medical negligence” in India. In
2001, he set up People for Better Treatment, an NGO that works with victims of medical
negligence. “I managed to get justice for Anuradha’s wrongful death,” he says. “But it
would have been impossible had I not been a doctor myself. Living in the U.S. was
tremendously helpful in obtaining opinions from renowned medical experts. It is noteworthy that while I was able to obtain honest medical opinions from different countries, including the U.S., France, Austria and Canada, doctors in India, where most of my medical school classmates practice, were mostly unwilling to give their honest medical opinion in writing or testify before the court of law.”
In Indian law, a case of medical malpractice can be proved only by a committee of peers
— by doctors who are members of various State Medical Councils. “Doctors do not go
on record against other doctors, and especially against corporate hospitals. Therein lays the problem with proving medical negligence cases,” says Sengupta.
1. Individual cases of medical negligence or excellence definitely need to be verified and
adjudged by medical Board consisting of experts in the field and administration, and not
predominantly on emotional basis or other considerations. Death of an individual, be it a
child, old or infant, in any case is sad and a painful experience. The case of 10 year old, Yash Arora, of Rudrapur, Uttarakhand as detailed reveals that he had gone through six readmissions, two liver transplants, and numerous bouts of infections over nine months and subsequently, a medical board at the Postgraduate Institute of Medical Education and Research, Chandigarh, examined the medical records and dismissed the case without taking testimonies from the family. The possibility of getting infected from a drug resistant Tuberculosis patient within such a short spell, the issues of financial and various other management factors indicate how the critical cases of surgery and post operative care deserve very cautious observation and analysis to arrive at a truth often confounded by issues of sympathy and compassion.
2. Corporatisation and commercial drive for financial profit when prevails over human crisis, when the Shastric injunctions of Hindu dharma prescribing – i.e. a physician should treat neither out of material ambition nor for money but for compassion
towards all beings, are thrown to the winds and replaced by search for palpable monetory gains; when the Police, Administration, Hospital authorities and doctors are obsessed with compromise abandoning priorities of self discipline or Dharma, things are bound to deteriorate inviting mistrust and vengeance. The Nobel poet Rabindranath once stated that if one is afflicted with running stomach, it may be controlled, if one
is vomiting the same may be cured, but when both occur at the same time it becomes more difficult to cure. Thus, when the rules of discipline or Dharma are broken, the inevitable happens.