This report is the second instalment of a series on medical negligence. Read the first part here.
Dimpal Das, a labourer from Assam, couldn’t have foreseen an uglier start to this year. His mother was supposed to get a simple lens replacement surgery in her left eye in December last year. But as the bandage came off, the family realised she had lost most of her vision.
Das has since then been running from pillar to post to seek justice, in what he claims is a case of medical negligence.
His mother Dulubala was taken to the new Barpeta Medical College, and given an injection in her left eye, a month after the doctor had advised a corrective lens. But despite the pain and chills that followed, and the loss of vision, the doctor seemed confident. Dulubala was assured that her vision would be restored within a week. However, as days passed, she instead had to be referred to Guwahati’s Sankardev Netralaya, which found that her eye was 90 percent damaged. The hospital’s report suggested the possibility of subretinal injection of lignocaine peribulbar anaesthesia, leaving little hope for visual restoration.
Das claimed that he then approached the doctor who had operated on her mother’s left eye, but “she told us that she cannot take any responsibility and asked us to do whatever we can do”. He sent letters to the district commissioner and chief minister for justice but that didn’t help.
Meanwhile, the Barpeta college told Newslaundry they had conducted an internal inquiry days after the surgery. “The committee came to a conclusion that the complication occurred which was likely in such cases and no negligence was assessed on the part of the treating doctor,” read the report, which only recorded the statements of the doctor and her subordinate, and verified hospital documents such as the pre-operative record and the OPD examination.
Das, however, claimed that the hospital neither informed them of the inquiry nor called them to record their statement. And he isn’t alone.
According to legal experts, the Consumer Protection Act, 1986, often falls short in providing recourse for victims when services are rendered free by government establishments, leaving them with the solitary option of pursuing a writ petition. It’s because a consumer has been defined as an individual who pays, in stark contrast to the citizen who gets “free treatment” at a government hospital.
The three mechanisms
In the absence of adequate laws or mechanisms to address alleged medical negligence, victims often find it challenging to pursue justice.
In India, cases of medical negligence often traverse through three verticals: the consumer commissions at the national, state and district levels, criminal proceedings and writ petitions before the courts, and the state medical councils.
But these forums come with their own set of hurdles, as reflected in one case after another. While medical councils often face allegations of bias towards doctors, the requirement of a prior medical opinion for an FIR against a medical practitioner makes it a Herculean task to initiate criminal proceedings. Meanwhile, in consumer forums, also known as consumer courts, limitations in jurisdiction – particularly regarding the definition of a consumer in cases involving government hospitals – pose the biggest challenge.
So what happens to those trying to seek closure in cases of alleged medical negligence at the hands of government institutes?
Newslaundry looked at a bunch of cases in Assam to understand the problem, and found most families dealing with a lack of clarity while navigating the system.
Abhijyan Bordoloi, a Guwahati-based advocate, explained the challenge by pointing to the case of Tanishtha Kashyap – a four-year-old whose death was attributed to alleged medical negligence at a Nalbari hospital in August 2020. “Since the whole case is related to a government hospital, we are going to pursue the case as a writ petition seeking directions from the court. But we are also going to consumer forums against the doctor as the child was first taken to his private chamber,” Bordoloi said.
From pillar to post, and the same stories
According to legal experts, the Consumer Protection Act, 1986, often falls short in providing recourse for victims when services are rendered free by government establishments, leaving them with the solitary option of pursuing a writ petition. It’s because a consumer has been defined as an individual who pays, in stark contrast to the citizen who gets “free treatment” at a government hospital.
Abhijyan Bordoloi, a Guwahati-based advocate, explained the challenge by pointing to the case of Tanishtha Kashyap – a four-year-old whose death was attributed to alleged medical negligence at a Nalbari hospital in August 2020.
She was being treated for diarrhoea and weakness at a private setup on August 22, 2020, but when her condition deteriorated, the doctor allegedly directed her to a government hospital’s Covid ward, where he held a position. She died the next day.
An inquiry by the state health department subsequently unearthed gross negligence on part of the hospital staff. It found the child was admitted to the Covid ward without the mandatory RAT test and was not attended to immediately. The emergency doctor had requested a radiologist to attend to the child.
“Since the whole case is related to a government hospital, we are going to pursue the case as a writ petition seeking directions from the court. But we are also going to consumer forums against the doctor as the child was first taken to his private chamber,” Bordoloi said.
Meanwhile, Momita Bora, a Guwahati-based advocate who has represented several victims of medical negligence, asserted that one can first file a writ petition in such cases, and the court can then route the case to a consumer forum.
Bora cited a case involving the permanent disfigurement of a student’s nose at a medical college in Assam as an example. Shyam Sundar Gupta, the student, had in April 2015 allegedly consulted a doctor to treat an infection on the tip of his nose. But the doctor administered an injection directly in his nose, leading to necrosis.
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“We initially approached the consumer forum but it refused to register our case as it involves a government practitioner. So we approached the high court with a writ petition and could manage to register the case at consumer forum only after the court’s direction,” Bora said.
But Shyam’s case has been pending before the state consumer dispute redressal commission since 2016, with at least 50 hearings so far.
Shyam, who was a fourth semester engineering student at Assam Engineering College, had to miss one semester for further treatment, and had to subsequently undergo four nose reconstruction surgeries at the Apollo hospital in Chennai.
“We had to spend lakhs of rupees for the treatment. Financial losses aside, I am still struggling to come out of the mental and physical trauma it brought,” he told Newslaundry.
Assam’s record in redressal of such claims is not at par with other states, with a high pendency of claims, according to Vidhi. In fact, its consumer forums have delivered the lowest number of decisions at the state and district levels (at 0.3 percent). West Bengal’s record was the best for the duration of assessment, at 21.31 percent.
The structure of consumer forums and what data suggests
Consumer matters are largely dealt with by consumer forums that came into being after the enactment of the Consumer Protection Act in 1986, which was replaced by the Consumer Protection Act, 2019.
Under this Act, any patient availing the services of healthcare providers – such as hospitals, clinics, individual medical practitioners, pharmacies and diagnostic centres – can file a complaint in case of any wrongdoing that’s recognised by civil law.
These claims are then processed under a three-tiered structure envisioned by the law: the National Consumer Dispute Redressal Commission, the State Consumer Dispute Redressal Commission and District Consumer Dispute Redressal Commission.
These commissions, which largely enjoy the same powers as civil courts, are presided over by judges from corresponding tiers within the judicial hierarchy and include members from non-judicial backgrounds. They can award monetary compensation to the aggrieved.
The apex body within this structure is the NCDRC, which looks at appeals against decisions taken by the SCDRC, apart from addressing complaints where the cost of treatment has crossed Rs 10 crore. The SCDRC looks at complaints citing costs between Rs 1 crore and Rs 10 crore while DCDRC looks at cases involving costs under Rs 1 crore. If a complainant is unsatisfied with the NCDRC’s response, they can approach the Supreme Court.
However, it seems the NCDRC has mostly been reviewing decisions rather than processing direct complaints. According to a research by the Vidhi Centre for Legal Policy, which analysed official data on consumer forums from 2006 till 2022, the majority of the judgements delivered by NCDRC in cases of “medical negligence” came in review petitions (63.77 percent). This was followed by first appeals (26.09 percent). And only about 9 percent of the judgments pertained to complaints which were directly filed before the NCDRC.
Similarly, at the state-level, most of the cases were first appeals against decisions given by district forums. Only around 24 percent of the judgments were linked to complaints directly filed before the state commissions.
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Assam’s record in redressal of such claims is not at par with other states, with a high pendency of claims, according to Vidhi. In fact, its consumer forums have delivered the lowest number of decisions at the state and district levels (at 0.3 percent). West Bengal’s record was the best for the duration of assessment, at 21.31 percent.
This is not what the law had envisioned. As per the Consumer Protection Act, the district forums should hear every complaint as expeditiously as possible and endeavour to decide the matter within three months where no testing of commodities is required. The same is applicable for original complaints filed before the state commissions and the NCDRC. For appeals before the state and national panels, this desired time period is 90 days.
According to researchers at Vidhi, original complaints take a long time to be disposed of. Appeals take comparatively less time, but on an average, the NCDRC and SCDRC take more time to dispose of these than what is recommended under the consumer protection laws.
The median time to dispose of original consumer complaints for the period assessed was 3.2 years, 5.1 years and 2.5 years before the NCDRC, SCDRC and the district forums, respectively. In Assam’s case, according to the research quoted above, the average time for disposal of cases by SCDRC and district consumer forums is nearly 4 years.
In Assam, three years, five orders
In Assam, only 23 of the 31 districts have a consumer commission at the district level to address the grievances of consumers.
As per data available with the Computerisation and Computer Networking of Consumer Forums in Country, a Ministry of Consumer Affairs scheme that aims to digitalise the functioning of such forums across the country, around 36 fresh cases of medical negligence were filed at various district consumer commissions in the state between 2020 and 2023.
The number of cases dealt by the state consumer forum during the same period stood at 27. But, in those three years, the state consumer dispute redressal commission in Assam delivered only five judgments in such cases.
One of these cases was disposed of in 2,800 days due to “default” on part of the complainant, another was disposed of in 2,799 days with the opinion that “the complainant has lost interest in further proceeding with the matter”. The third was disposed of in 1,657 days after the complainant withdrew the complaint due to a “personal problem”. The fourth was a review petition seeking cross examination in a medical negligence case in a district consumer forum.
The victim received a favourable direction in only one case over these years, where the commission ordered in July 2022 to pay a compensation of Rs 81,475, over a complaint dating back to 2007 where a child was wrongly treated by a private hospital in Guwahati.
The child was suffering from weakness and high fever when the hospital diagnosed it as tuberculosis and prescribed strong medicine. However, when the parents of the child took him to the Apollo hospital in Chennai, it was found that the child was actually suffering from low haemoglobin.
While consumer forums may in several cases ensure compensation to victims of medical negligence, criminal proceedings may be more challenging. This is because the guidelines issued by the Supreme Court prohibit prosecution of medical professionals in a routine manner merely on the basis of the allegations raised in a complaint.
Criminal medical cases more challenging
While consumer forums may in several cases ensure compensation to victims of medical negligence, criminal proceedings may be more challenging. This is because the guidelines issued by the Supreme Court prohibit prosecution of medical professionals in a routine manner merely on the basis of the allegations raised in a complaint.
As per the guidelines, before initiating prosecution against a medical practitioner, police officers have to satisfy themselves that at least a credible prima facie case can be made out against the medical practitioner and in order to ascertain this, they must obtain expert medical opinion.
This is also evident in terms of numbers of cases filed before the consumer forums and police over medical negligence. As per the National Crime Records Bureau, Assam has registered only one police case of medical negligence each for the years 2021 and 2022.
A much higher number of cases is being processed through consumer forums. According to CONFONET, district commissions received at least 13 and 10 cases in 2021 and 2022, respectively.
“People often don't proceed ahead with a criminal case against doctors as it is very difficult to register a criminal case against doctors. So people either go ahead with a writ or file a case for compensation at consumer forums,” advocate Bora told Newslaundry.
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According to research by the Vidhi Center for Legal Policy, which analysed district courts data from 2010 to 2022 and high courts data from 1992 to 2022 through the e-courts portal and online legal repository Manupatra, a criminal case against a medical professional took an average of 5.3 years to be disposed of. The longest trial took about 17 years and the shortest 57 days. The median time taken to dispose of a case was 4.8 years, which means that about half the cases were disposed of within the first five years of filing.
But for many like Shyam Sundar, there’s no relief either way as medical professionals “enjoy a high level of impunity”. “It’s almost been a decade...I suffered medical negligence, underwent five surgeries, went through huge physical and mental trauma and lost one academic year.”
“The onus of proof lies on the victim.”
This piece is part of a project supported by the Thakur Family Foundation. The foundation has not exercised any editorial control over the contents of this report.
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