Is it time to initiate a demand for a medical tribunal only to decide medical negligence cases
A recent District forum judgment has penalized a senior paediatric neurologist for prescribing carbamazepine to a child with convulsions despite knowing that the drug could cause Steven Johnson Syndrome. This raises the issue that all drugs can cause reactions, side effects and complications. Doctors who keep abreast their medical knowledge know these and inform their patients in accordance with best medical practice. If using a drug despite knowing a side effect and warning patient about it is negligence then it would be well neigh impossible to practice medicine at all.
Another judgment asked doctors to give their own complication rate and not the risks as given by different associations and societies worldwide when taking consent. This judgment has implications for teaching and training across board and is not standard medical practice. If a young doctor is doing the procedure/surgery for the second time in his life what is he to write as his mortality rate ; 100 percent ? since the first case he operated as first surgeon died. Worldwide it is standard practice to inform the patient the risks as provided in studies worldwide and published by various professional bodies. If I have to declare my own mortality rate then I will start to pick and choose the cases I operate and keep my mortality figures low. This would result in no one wanting to do high risk procedures or surgeries which is again not in interest of society. We need aggressive surgeons and physicians who are not afraid to treat a high risk patient simply so that they can keep their own records clean.
A recent High Court judgment said that forceps delivery should be done only in a place which has facilities for caesarean section. A patient was entered in OPD register as a case of antepartum hemorrhage and even though the doctor referred the patient to higher centre it w as held that he should not have handled the patient in the first place since he did not have facility for caesarean section. There will always be situations where during any normal delivery when need for assisted delivery is felt either for using forceps or even by caesarean. This is always known and this should not be an impediment for providing what services are available to those in need.
A Judicial magistrate first class ordered imprisonment of doctors when delivery was conducted by gynaecologist and babies resuscitated by paediatrician but because the babies had to be referred to NICU which meant that all facilities for delivery did not exist in the nursing home. And then of course there is the famous Supreme Court judgment which said that hysterectomy should not be done in a nursing home which did not have an ICU.
On one hand we promote delivery by trained birth attendants (under NRHM) who are not even qualified MBBS doctors and on the other we want no delivery in a place where caesarean section cannot be done and no surgery should be done where ICU is not available. Tomorrow some judge somewhere will put two and two together and say that since doctors know some deliveries may end up in caesarean section and even caesarean-hysterectomy for PPH hence no delivery should be done in a place which does not have OT, NICU and ICU. Since our organizations have not protested they are to be understood to be in agreement with this.
Poor legal representation, lack of understanding of medical terminology and norms by lawyers and judges or overload of cases whatever be the reason, with litigation on alleged medical negligence rising, such judgments which may have serious implications on the way medicine is practiced in India today need to be rectified or at the very least discussed on a wider platform. 70 % of indoor healthcare in the country is provided by small and medium healthcare establishments run usually by single doctors or couples. 99 % of these do not have ICUs or atleast will not fulfil criterion for an appropriate ICU. Also a good doctor will always know the complications, side effects and reactions to any medicine, procedure or surgery that he does. In India this knowledge can now be the cause of his downfall even under criminal law because having knowledge can also be construed as “mens rea” by some. It is okay if a quack prescribes a medicine, side effect of which, he does not know but it is negligence if knowing the possible side effect or complication a qualified doctor follows his mind and does what he thinks is in his patient’s best interest.
I request everyone to kindly send me case laws (at This email address is being protected from spambots. You need JavaScript enabled to view it.) of judgments where acceptable medical norms have been considered negligence by various courts. MLAG will compile these and use it as a basis to make a representation to the Govt in support of demand of exclusion of doctors from CPA and a separate medical tribunal to try cases against them.
Dr Neeraj Nagpal
Convenor,Medicos Legal Action Group, Managing Director MLAG Indemnity,
Ex President IMA Chandigarh
Director Hope Gastrointestinal Diagnostic Clinic,
Sco 1066-67 Sector 123 New Sunny Enclave Mohali
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