By DUSHYANT ARORA | 7 January 2016

Nearly two decades ago, in 1998, Kunal Saha, a doctor based in Ohio, and his wife, Anuradha Saha, a child psychologist, flew down to India and visited Kolkata. On 7 May 1998, Anuradha approached a doctor, complaining of acute pain, rashes and a fever. The doctor, Sukumar Mukherjee, prescribed her a higher-than-recommended dose of a medicine called Depomedrol, a steroid. Four days later, with no improvement in her condition, Anuradha was admitted to AMRI Hospitals, where she was prescribed another steroid, Prednisolone. She had been diagnosed with allergic vascilitis, an extreme reaction to a drug. Her doctor, Mukherjee, left for a pre-arranged trip, leaving Anuradha in the care of two doctors from AMRI. By 12 May, the doctors diagnosed that she was actually suffering from TEN, a rare skin disease that is also a drug reaction. However, her treatment was not changed. A few days later, Anuradha was transferred to a hospital. She died on 28 May. Her husband, Kunal, filed a consumer complaint and a criminal case against the hospital and the doctors for negligence. In October 2013, the Supreme Court awarded Kunal over Rs 11 crore in damages.

The verdict was hailed by many as a David and Goliath story, and a turning point in medical negligence litigation. It signified a ray of hope for other patients and their families who believed they had been wronged by hospitals or doctors. The news website Firstpost commented that the case seemed like a “rare case of the consumer triumphing over the system and a cause for celebration.” The newspaper Mint reported that certain legal experts were calling the case “the start of ‘something big’ in India, where the relationship between a doctor and a patient remains highly unequal.”

However, several facts about the case belie such hopes: Kunal Saha, the victim’s husband, was himself a doctor and by deposing as a witness, was able to explain many complicated medical issues himself. He was also able to bring expert witnesses, such as doctors and professors, from Kolkata, and Banaras, as well as testimonies from doctors and specialists from outside the country. It still took Kunal 15 years to get justice.

The Saha case is an exception to the norm and illustrates a key conundrum in cases that deal with medical negligence. When the negligence is not obvious, as it was not with Saha, the law relies disproportionately on a doctrine called the “Bolam Test,” which uses testimonies by medical experts to ascertain negligence. The remedies available to patients for redressal and the law governing negligence are unconscionably biased in favour of doctors, granting them near immunity from any liability.

In India, a person aggrieved by medical negligence can file a civil or criminal suit, approach the state medical council, or file a complaint with a consumer court. However, civil suits are rarely filed as they require the payment of court fees which can often be prohibitive. Criminal complaints too are rare because of statutory safeguards that protect doctors (with good reason). State medical councils, however, have proved ineffective in dealing with negligence: 80 percent of the complaints filed in Gujarat over the last decade have not been decided, and the West Bengal medical council has only taken action against four doctors in as many years. It is noteworthy that the West Bengal medical council rejected the complaints against doctors in Saha’s case.

The forums of choice therefore for most victims of medical negligence are consumer forums. However, these are plagued by unimaginable levels of delay, apathy, and dysfunction. District consumer forums in Delhi have been shut down for months for reasons as preposterous as construction in the building,the absence of a stenographer, and most recently, for attending a function on the occasion of national consumers day.

In 2014, the National Consumer Disputes Redressal Commission (NCDRC)—a quasi-judicial commission that was established under the Consumer Protection Act in 1986—heard an appeal in a case not dissimilar to Saha’s. A patient, Devapriya Ghosh, had alleged that an overdose of a prescribed medicine, Amikacin, had caused him to lose his hearing. He further claimed that the doctor, Shivaji Basu, had failed to caution him of this possible side-effect. The commission decided the case in favour of the doctor, observing that while the doctor had brought along two doctors as expert witnesses, the patient failed to produce even one. (Disclosure: I argued the case for Ghosh when it reached the Supreme Court in 2015.)

The commission observed and endorsed the view that “caution had been sounded by each and every author of repute” in medical journals, about the imminent damage caused to the ability to hear by the drug in question unless its dosage was monitored. Despite this, the NCDRC concluded that the doctor could not be held liable “merely because” he had failed to caution the patient.

In 2015, Ghosh filed an appeal against the NCDRC’s decision before the Supreme Court. The case was being heard by HL Dattu, who was the chief justice of India at that time. Justice Dattu repeatedly asked me whether the patient had produced any expert witness to speak on his behalf. I responded by arguing that the near-unanimous consensus in medical literature on the matter should be construed as expert testimony. My argument did not move the court.

This reliance on expert testimonies became a norm after the Supreme Court’s judgment in Jacob Mathew vs State of Punjab in 2005, in which Jacob Mathew was accused of negligence in the death of a Jiwan Lal Sharma. Sharma’s son alleged that when his father was experiencing trouble breathing, the doctors took over 20 minutes to respond and were careless while fixing an oxygen cylinder. However, the court did not find the actions of the doctors negligent under criminal law. In this case, a three-judge bench of the Supreme Court used and approved of the Bolam Test, which then became the gold standard for judging medical negligence cases. (An appeal to the Supreme Court in a case of medical negligence would ordinarily be heard by a two-judge bench, which is bound by the decision of a larger bench)

The Bolam test acquired its name in 1957, from the medical negligence case in which it was judicially devised in England. Bolam, a voluntary patient at a mental health facility called the Friern hospital, alleged that the hospital’s authorities had not informed him of the risks of electrotherapy, and that he had consequently suffered grave injuries. However, the court ruled that since medical experts testified that the procedure followed by the doctors at Friern was considered “common practice” within the medical community, it did not count as negligence. This reasoning was christened the Bolam test.

Simply put, the Bolam test states that if an act finds approval from a “responsible body of opinion”—in this case, other doctors—it will not be considered negligent. In theory, when there is ambiguity regarding whether an act qualifies as negligent or not, the Bolam test aids the decision through the inclusion of expert opinion.

In practice, however, the test does not always work as intended. It is far too simplistic. The test does not mandate unanimous or even substantial acceptance of the conduct of the doctor in question by those who form the “body of experts.” Moreover, there is little clarity on the structure and composition of this body. The Bolam test does not include a pre-determined formula to assess the number of doctors needed to qualify as a responsible body of opinion. Even two doctors can constitute such a body.

The test also presumes that the medical community will act with both integrity and neutrality. It is structured under the assumption that a doctor’s peers would not exhibit clique-like behaviour. This presumption does not work in the Indian context. The bias that doctors display towards other medical practitionersand their reluctance to prosecute “one of their own” has long been discussed both within and outside the medical community. In a 2013 report submitted to the Rajya Sabha, the parliamentary standing committee on health and welfare commented on the high incidence of medical negligence. In this report, the committee noted that the cases of negligence and ethical violations that are brought before the Medical Council of India—the national parent body of the state councils—“are decided by the medical professional themselves.” It further noted that medical professionals looking into these allegations were found to be “very lenient towards their colleagues guilty of negligence” and that none of these doctors were willing to “testify another Doctor [sic] as negligent.” The immediate impact of this clique-like behaviour, the report concluded, was that “the percentage of prosecution in the medical negligence cases by the MCI is almost negligible.” A UK-based cosmetic surgeon Christopher Stone described the Bolam test as a “clumsy tool born out of medical nepotism,” through which doctors themselves set the standards required of them and defend each other through their testimonies.

The emerging jurisprudence trends in several nations point to a marked shift away from the Bolam test. In countries such as Australia, the United States of America and the UK, the courts have taken up the responsibilityof scrutinising the opinion of experts by testing it for logic and reasonableness. Bolam was never accepted by courts in Canada; in the 1949 Anderson vs Chasney case, a doctor was accused of negligence for not using tape to hold down a sponge during the tonsil surgery of a child. The sponge was left behind, causing the child to die. Even though taping sponges was not standard procedure at the hospital, the Supreme Court of Canada ruled the doctor negligent. The court observed that if general practice was accepted as a conclusive defence, a group of professionals “could legislate themselves out of liability for negligence to the public by adopting or continuing what was an obviously negligent practice.”

While the Supreme Court does not appear to be oblivious to these criticisms, it has refused to move away from Bolam. For instance, in the 2010 case of V Kishan Rao vs Nikhil Super Speciality Hospital, the Supreme Court acknowledged the international decline in the application of the Bolam test but cited its inability to do away with the test since it was bound by the judgement of a larger bench in the Jacob Mathew case. In this case, the court could have referred the matter to the chief justice with a request to refer the same to a larger bench—which could re-examine the continued use with Bolam—but it chose not to.

Unfortunately, the application of outdated legal doctrine and tendency of doctors to organise themselves into a cabal are only one part of the problem. The inexplicable and illogical reverence accorded by the judiciary to doctors is another. Take, for instance, this excerpt from the judgment in Jacob Mathew’s case:

“A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.”

In the 2010 judgment in the case of Kusum Sharma & Ors. v. Batra Hospital, the Supreme Court observed:

“It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it.”

On the contrary, there is little or no evidence to prove that the fear of litigation impacts medical practice. In the United Kingdom, this perspective was met with scepticism by various bodies of doctors—groups that would have benefited had such an argument been accepted. In a May 2014 article for The Guardian, former medical researcher David Hills wrote, “The story that doctors are prevented from innovating because of fear of litigation is just that, a story.” Hills then went on to cite several respected medical institutes that have independently confirmed the same. “The Royal College of Radiologists said, ‘we have no evidence that doctors are deterred from innovation by fear of litigation,’” he noted, adding that Cancer Research UK, The Royal College Of Physicians, the Academy of Royal Medical Colleges, the Academy of Medical Sciences, Medical Research Council and Wellcome Trust, the British Medical Associationthe Association of Medical Research Charities, the British Pharmacological Society, the Medical Defence Union, and the Motor Neurone Disease Association all “struggle” to find any evidence that fear of litigation stifles innovation.

This narrative constructed around fear took on a new dimension in India. The hefty remuneration that was awarded to Kunal Saha in the case of his wife’s death led to doctors demanding a ceiling on the amount that they would have to pay as liability in such cases. Speaking at the 2015 Perfect Health Mela, an event that focuses on spreading awareness of health issues, KK Aggarwal, the secretary general of the Indian Medical Association (IMA), a national voluntary organisation of doctors, said that “offering unscrupulous compensation to patients” will instil unnecessary fear amongst “honest doctors.” He curiously added that this would lead to a “substantial increase in treatment costs and the number of false cases being registered against doctors by patients.” He refrained from explaining further.

Aggarwal also demanded blanket immunity for doctors, adding that that the Consumer Protection Act “must be done away with until a cap on the compensation is implemented.” “The need of the hour is for the government to address the issues that the medical fraternity is facing and take necessary steps to protect the nobility of the profession,” he said. “Including doctors within the consumer protection act is detrimental to the availability of quality medical care.” In 2011, the IMA had, with utmost seriousness, also claimed that award of exemplary damages will scare off students from studying medicine. However, there is little or no data to back up these claims. The fact is that there is no data in India to ascertain the ratio of genuine cases and those that are false or to map the rise or fall of either. This makes the claim that the exemplary compensation for patients would result in an increase in litigation dubious.

It is no one’s case that every allegation of medical negligence is well founded and honest, or that every unfortunate result of a medical procedure is the result of negligence. However, the combination of courts entrusting doctors with determination of liability in a system where doctors seem determined to protect their brethren results in a situation where the scales of justice are tilted against victims of medical negligence.