According to Munjae Lee (2019) in the research article titled ‘The Effects of Criminal Punishment on Medical Practices in the Medical Environment,’
“The number of medical disputes has rapidly increased as the trust between doctors and patients has become fraught in a system of low insurance, low bills, and low income, which leads to such situations as the three-minute consultation and the overall destruction of the healthcare delivery system.”
According to Leflar (2013) in the article titled “Medical malpractice reform measures and their effects” published in the Journal of Chest, “There is the phenomenon of doctors who intentionally perform defensive treatments or overtreatments due to the risk of medical accidents and who avoid medical fields that experience a high frequency of accidents.”
In the United States of America, according to Michael Berens of Reuters Media (2023) in his article titled ‘How doctors buy their way out of trouble,’
“Medical practitioners and providers paid $26.8 billion over the past decade to settle federal allegations, including fraud, bribery, and patient harm, a Reuters investigation found. Paying up means staying in business and, for some, avoiding prison.”
With the new law prescribing punishment for medical professionals under the Bharatiya Nyaya Sanhita (BNS), it needs to be appreciated that Medical Negligence has finally been specifically recognised as a specific case which the Legislature has sufficiently addressed through statute. The importance of the intention of the Legislature is a welcome step based upon which subsequent and specialized legislation can thereafter be developed.
It needs to be understood that doctors cannot play God; they are to be regarded as mere instruments of healing. To a certain extent, the Indian Medical Association (IMA), by urging the Union Government to reduce the originally intended enhanced punishment against doctors for having caused death by medical negligence from five years to two years, represents a meddling in the idealism of the law.
Similar to every profession guided by ethical principles, the medical profession must also be equally held accountable for a higher degree of responsibility. It is interesting to note that the Parliamentary Standing Committee had initially recommended a maximum punishment of 7 years to be awarded to medical professionals for having caused death by medical negligence.
Why does Goa have to lag behind in holding its doctors responsible for their medical practice? The stemming of the tide moment must arrive in the sphere of the Goan Medical Practice where fairness and transparency shall mandatorily percolate every decision taken by a doctor in treating a patient under their care.
The knowledgeable and ethical doctor must not fear harsh punishment because he/she would have done everything within their capacity to save a patient’s life. The quantum of punishment should not be a bargaining factor in a noble profession. And yet, the proponents of the medical profession frequently subvert the Hippocratic Oath to enhance the profits of the Hospital where they practice their noble profession for commercial gains. It is this breed of corporate-influenced doctors who would be inclined to lobby for reduced punishments for having caused the death of a patient due to his/her medical negligence.
The honest doctor would never fear any prosecution for having practiced his noble profession in all honesty and to the best of his capabilities. The law on Medical Negligence in India also lacks in providing effective legislation for cases of medical negligence where the patient survives the ordeal of insufficient and improper medical treatment being provided by the profit-minded hospital where the doctor practices.
In a case where a Surgeon from Telangana joins a hospital in South Goa, located adjacent to the Madgaon Railway Station, the under-qualified Surgeon operates upon a 33-year-old male with complaints of pain in the lower right quadrant of his abdomen. The surgeon decides to perform a laparoscopic operation to resect the appendix of the patient. The patient does not recover from the surgery because the negligent surgeon has left a portion of the appendix (known as the appendix stump) inside the abdomen while having resected only a small portion of the appendix using laparoscopy. Thereafter, the Surgeon also leaves behind hardened stools (known as fecolith) within a sinus tract that has been formed at the site where the trocar arm was placed, and later an intra-abdominal drain was placed in-situ, all the while leaving behind the fecolith in the sinus tract that subsequently caused a fistula to form in a portion of the patient’s intestine.
This negligent surgeon kept on denying any wrongdoing to the patient and his family members. However, a second surgery at a specialty hospital in Delhi revealed the negligent practices of the surgeon from Telangana who carries out surgeries in Margao to appease and enhance the purse of the businessman who runs the private hospital in Margao, South Goa, located exactly adjacent to the Railway Platform of the Madgaon Railway Station.
Why does the law not provide for cases of active medical negligence, thus prescribing punishment for the errant doctors when the patient survives? Isn’t the Hospital Administration supposed to be prosecuted as abettors to the crime of medical negligence? Patients’ lives cannot be merely squandered away by negligent doctors while the law places the burden of proof upon the patient who has already suffered physically, mentally, and emotionally at the hands of the errant and negligent medical practitioner.
The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences
