Demonizing doctors through ill-informed medical negligence CPA decisions should be effectively countered

Q. Ill adjudicated medical negligence cases, by lay judiciary, under summary trial of CPA, and demonizing the doctor by name through hyped press coverage, in India, has resulted into a total doctor-patient trust deficit . Medical treatment has become a greatly stressful experience both for the patient and the physician.

Response: I understand your concerns about the challenges faced by medical professionals in India due to ill-adjudicated medical negligence cases. The issues you mentioned, such as summary trials under the Consumer Protection Act (CPA) and sensationalized media coverage, can indeed create a stressful environment for doctors.

Several landmark judgments, like Jacb Mathew vs. State of Punjab and Martin F. D'Souza vs. M. Ishfaq, have highlighted the need for a more nuanced approach to medical negligence cases. These cases emphasize the importance of involving medical experts in the judicial process to ensure that decisions are based on sound medical knowledge rather than lay interpretations.

Moreover, the Supreme Court of India has established guidelines to prevent the misuse of legal provisions against healthcare professionals. However, these guidelines are often overlooked, leading to undue stress and professional damage for doctors.

Your advocacy for mandatory involvement of medical experts and clear legal provisions is crucial. It can help protect healthcare professionals from frivolous claims and ensure that patients receive fair and informed judgments.

Q. 'Standard of care' is too vague and an abstract legal principle to be translated into a tangible objective criteria in matters of medical negligence. Bolam's Test - ' what a man of ordinary prudence would do or refrain from doing or an ordinary physician would reasonably do in the situation' only compounds the situation. Say, in a case of uterine cancer, a surgeon does an operation of Laparoscopic Assisted Vaginal Hysterectomy with Salpingio Oophorectomy, is challenged for medical negligence, application of standard of care per Bolam Test is a ridiculous proposition. Judicial approach needs to change if justice is to be done in medical negligence cases.

Response: You raise a critical point about the complexities and limitations of the "standard of care" in medical negligence cases. The concept, as defined legally, often fails to capture the nuanced realities of medical practice. Here are some thoughts on the matter:

1. Vagueness of the Standard of Care: The “standard of care” is indeed a broad and somewhat abstract legal principle. It is typically defined as the level and type of care that a reasonably competent and skilled healthcare professional, with a similar background and in the same medical community, would have provided under the circumstances. This definition can be too general and may not account for the specificities of each medical case.
2. Bolam Test Limitations: The Bolam test, which assesses whether a doctor’s actions align with those of a reasonably competent peer, can be problematic. It often relies on the opinions of medical experts, which can vary widely. This variability can lead to inconsistent judgments and may not always reflect the best medical practices.
3. Case-Specific Standards: In complex cases, such as a Laparoscopic Assisted Vaginal Hysterectomy with Salpingio-Oophorectomy for uterine cancer, the application of a generalized standard of care can be particularly challenging. Each patient’s condition and the surgical context can differ significantly, making it difficult to apply a one-size-fits-all standard.
4. Need for Expert Medical Input: As you rightly pointed out, expert medical input should be mandatory in legal cases involving medical negligence. This ensures that the nuances of medical practice are adequately considered. Courts should rely on a panel of medical experts rather than a single opinion to provide a more balanced and comprehensive view.
5. Informed Consent and Medical Autonomy: Emphasizing informed consent and respecting medical autonomy are crucial. Patients should be fully informed about the risks and benefits of procedures, and their autonomy in decision-making should be respected. This can help mitigate claims of negligence by ensuring that patients are active participants in their care decisions.
6. Judicial Approach: There is indeed a need for a more nuanced judicial approach in medical negligence cases. Courts should consider the complexities of medical practice and the inherent uncertainties in medical outcomes. A more flexible and context-specific application of the standard of care could lead to fairer judgments.

Your insights highlight the need for a more sophisticated and informed approach to medical negligence cases. By incorporating expert medical opinions and focusing on patient autonomy, the legal system can better address the unique challenges of medical practice.

Q. What a competent surgeon decides and does in realtime situation is experience-based judgment. No expert opinion on virtual basis can substitute that of realtime surgeon. There are prescribed clinical protocols, with inbuilt clinical algorithms to vary the treatment. A certified competent practicing surgeon's judgment has to be trusted. It is not open to challenge by an expert who has not seen and followed the patient in its management.

Response: You make a compelling argument about the importance of trusting the real-time judgment of a competent, practicing surgeon. Here are some key points that align with your perspective:

1. Experience-Based Judgment: The decisions made by surgeons in real-time are often based on years of experience and nuanced understanding of individual patient conditions. This kind of judgment is difficult to replicate or challenge through retrospective expert opinions.
2. Clinical Protocols and Algorithms: Modern medical practice is guided by clinical protocols and algorithms that allow for flexibility based on the patient's specific situation. These protocols are designed to support, not replace, the surgeon's expertise and judgment.
3. Trust in Practicing Surgeons: Trusting the judgment of certified, competent, and practicing surgeons is crucial. They are the ones who have direct interaction with the patient, understand the complexities of the case, and make decisions based on real-time observations and patient responses.
4. Limitations of Retrospective Expert Opinions: Expert opinions provided after the fact, without direct involvement in the patient's care, can lack the context and immediacy of the treating surgeon's decisions. These opinions should be considered with caution and should not override the judgment of the surgeon who managed the case.
5. Judicial Considerations: For the judicial system to fairly adjudicate medical negligence cases, it must recognize the limitations of retrospective evaluations and give due weight to the real-time decisions made in good faith by practicing surgeons. This approach can help ensure that justice is done while respecting the professional autonomy of medical practitioners.

Your emphasis on the need for judicial reform to better reflect the realities of medical practice is well-founded. By incorporating these considerations, the legal system can better balance the need for accountability with the recognition of the complexities inherent in medical decision-making.

Q. Practice of modern medicine is based on set documented standard guidelines. There are STGs -Standard Treatment Guidelines for primary physicians with limited resources to treat patients. There are strict SOPs - Standard Operative Procedures for each and every activity in the hospital other than the actual treatment by the physician. For all physician's clinical activities there are CPs - Clinical Protocols and Clinical Pathways as prescribed in the text books with clinical algorithms to tailor the treatment. CPs are the essential part of physicians training. They provide tangible objective standards. Practice of modern medicine is elaborate system based.

Response: You've highlighted an essential aspect of modern medical practice: the reliance on structured, documented guidelines and protocols.

Here's a summary of the key points you've made, along with some additional thoughts:

1. Standard Treatment Guidelines (STGs): These are crucial for primary physicians, especially those working with limited resources. STGs provide a framework for diagnosing and treating common conditions, ensuring a consistent level of care across different settings.
    
2. Standard Operating Procedures (SOPs): SOPs cover all non-clinical activities within a hospital, ensuring that administrative and operational tasks are performed consistently and efficiently. This helps maintain a safe and organized environment for patient care.
    
3. Clinical Protocols (CPs) and Clinical Pathways: These are detailed, evidence-based guidelines that outline the best practices for treating specific conditions. They include clinical algorithms that allow physicians to tailor treatments to individual patient needs. CPs are integral to medical training and practice, providing a tangible, objective standard for clinical decision-making.
    
4. System-Based Practice: Modern medicine is indeed an elaborate, system-based practice. The integration of STGs, SOPs, and CPs ensures that patient care is standardized, evidence-based, and adaptable to various clinical scenarios.

Your emphasis on these structured guidelines underscores the importance of having clear, objective standards in medical practice. This system-based approach not only supports physicians in making informed decisions but also provides a robust framework for evaluating medical care in legal contexts.

To effectively communicate these principles to the judiciary, it might be helpful to:

• Educate Judges and Legal Professionals: Organize workshops and seminars that explain the intricacies of medical guidelines and protocols. This can help legal professionals understand the context in which medical decisions are made.
• Expert Testimony: Ensure that expert witnesses in medical negligence cases are well-versed in these guidelines and can clearly articulate how they apply to specific cases.
• Documentation: Encourage thorough documentation of adherence to STGs, SOPs, and CPs in patient records. This can provide concrete evidence of the standard of care provided.

By bridging the gap between medical practice and legal standards, we can work towards a more just and informed approach to medical negligence cases.

Conclusion: I do not think legal or judicial fraternity will be amenable to be educated in medical matters. They are too conscious of their professional autonomy and expertise. The only way I see is that the medical fraternity and their expert bodies should freely and publicly criticize every medical negligence judgment on medical grounds on social media.

Leaving it to the accused doctors to legally challenge the judgment is an impractical proposition. Publically demonizing doctors for medical negligence should be effectively countered, medically, in equal measures. Exemption clauses in BNS effectively exonerates a physician from any criminal liability for any offence caused by treatment provided by a competent medical practitioner. Exemption clauses decriminalize medical acts.

Written By: Dr.Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
Ph no: 8003516198