Table of Contents
I. Introduction 2
II. Revolutionizing the present evidential rule of procedure 3
III. De-limiting the patient’s right to bodily autonomy 8
IV. Re-designing medicinal practice to equitable innovation 12
V. Recognizing the need for compliance free package regulations 18
VI. Conclusion 21
Over the last few years, there has been a considerable development in the area of medical malpractice litigation in this country, a system which has been largely marked by its inordinate delays, exorbitant expenses and little relief for the victims of fraudulent clinical treatment procedures.
The English common law being the original basis for the law on medical negligence in India as felt today, this development has been both inclusive as well as exclusive of parallel deliberations in common law jurisdictions.
We have seen the emergence of certain principles of medical jurisprudence that are the product of an increasing use of creative interpretation by judges and are, as such, specific to only the Indian framework of negligence law. Only when these principles are read with the existing legislations regulating the conduct of medical practitioners as well as the recent trends in medical science, can a totality in health care evaluation be achieved.
The objective of this paper is to study the growing implications of malpractice litigation on the evolution of health care reform in India and further examine the interdependency of the two in the context of a landmark judgment that was delivered very recently, Dr. Balram Prasad v. Doctor Kunal Saha $ Ors.1, where an eleven crore rupees compensation was awarded to the claimant of the suit. This paper also attempts to argue, through a combination of medico-legal interpretation and analysis, about the need for adopting equitable justice as the only suitable yardstick for assessing patient care in this country.
The resources used in the performance of this study include only secondary resources in the form of books, journals, Law Commission Reports, case laws, etc. Through the research conducted in this study it has been found that the existing loopholes in our health care model can be requisitely compensated if only we allow a comparative adoption of such policies and principles as may be appropriate to the medical health climate in India.
Health care reform in India today stands at an intricate crossroad with the corresponding developments in malpractice litigation whereby policy initiatives and judicial propositions grow interdependently of one another. In this paper, we shall be discussing a recent judgment that seeks to create a future roadmap for the delivery of health care services in India, namely, Dr. Balram Prasad v. Doctor Kunal Saha $Ors., hereinafter referred to as the Anuradha Saha judgment, as also the judgments delivered by the Trial Court, the National Commission and the Calcutta High Court, respectively, that ultimately formed the basis for the final appeal which went before the Supreme Court of India. The case involved an NRI patient, Mrs. Anuradha Saha, who had come to India to visit her mother in Kolkata. While on her visit, Anuradha began suffering from a skin disease which gave rise to a few rashes that appeared on her skin. On her first visit to the doctor, she was diagnosed with inflammatory vasculitis and was not prescribed any medicine, although it would later turn out that she had actually been suffering from Toxic Epidermal Necrolysis (TEN), which is an extremely rare form of disease. Over a period of time, the rashes on her skin started rapidly spreading to the other parts of her body and she was thereafter put under a heavy dose of steroid medication. Her condition nevertheless continued to deteriorate following which she was admitted at the AMRI hospital. Subsequent to her treatment at AMRI where she could not be cured of her rashes, Anuradha was shifted to a hospital in Mumbai called Breach Candy Hospital where she would ultimately succumb to her illness and suffer a brutal death.
II. Revolutionizing the present evidential rule of procedure
One of the most notable observations of the Supreme Court of India in the Anuradha Saha judgment is that, in matters of criminal justice, with respect to the victims of medical negligence, a court will not be bound by the evidence of an expert as such evidence is only advisory in nature and that the court must therefore derive its own conclusion. This observation marks a decisive shift from the Bolam2 standard, which had remained the sole test for determining negligence until now, to the Bolitho3 standard which is a much newer principle in comparison to the former. While the Bolam test dictated that the evidence brought out in support of one’s claim of negligent conduct on part of the doctor should have been attestable to a responsible body of medical opinion, the Bolitho test requires the evidence to be susceptible to a process of logical interpretation by the judges. However, this shift towards the acceptance of a new standard, for determining negligence still fails to take into account the feasibility of production of expert medical evidence in a court of law. This feasibility is in question because of the exorbitant expenses that are usually incurred in the process of gathering such evidence as also the inevitable bias that must be arising in the testimonies of physicians who may, for all purposes of our presumption, belong to the same fraternity of doctors as the respondent doctor himself. Since the initial diagnosis of Anuradha was that of inflammatory vasculitis, Dr. Mukherjee, one of the treating doctors at AMRI, was the first to be examined as to how he had sought to treat the same and, subsequently, the High Court accepted his mode of treatment on the basis of evidence adduced by a single expert physician, in a complete ignorance of the protocols that were otherwise clearly entrenched in the contemporary medical literature on inflammatory vasculitis at the time. Vasculitis is a disease consisting of protean clinical manifestations4 and its origin can only be concluded through an extensive examination of the symptoms. The disease may be idiopathic5 i.e., a disease whose cause of growth is unknown, or may be associated with a spectrum of condition such as drugs, infections, etc. Also, the existing treatment line for vasculitis is highly disputed and is therefore expected to be established in different ways and variations through further clinical research into the area. So, it seems apt to conclude here that the testament in favour of Dr. Mukherjee’s chosen method of treating inflammatory vasculitis stands verily unqualified in respect of the blatant absence that we see of any academic reference.
1 2012 (1) CPR 154 (NC)
2  1 WLR 583
3  3 WLR 1151
4 Pooja Khetan, Gomathy Sethuraman, Binod K. Khaitan, Vinod K. Sharma, Rajeeva Gupta Amit K. Dinda,V.
Sreenivas and Manoj K. Singh, An aetiological $ clinicopathological study on cutaneous vasculitis, Indian J Med
Res 135, January 2012, pp 107-113