You see only what you look for; you recognise only what you know" --  Dr. Merrill Sosman

Actions are being initiated under the provisions of the Indian Penal Code, 1860 (IPC) despite enactment of the Consumer Protection Act. The law of medical malpractice has developed around Sections 52, 80, 81, 88, 90, 91, 92, 304-A, 336, 337 and 338 of the IPC in the context of criminal proceedings.

Among the mandatory ingredients to prove death by medical negligence under IPC 304 A is to prove that the alleged act of negligence was the direct cause of death i.e. assigning cause of death.

It is very difficult even for medical experts to assign cause of death in a disease episode. For judicial officers it is even more hazardous.

The potential or likelihood of a deficiency of service to result in a particular damage or death by itself does not prove a causal relationship. Judicial acceptance requires a much higher level of medical evidence.

In a complex disease episode requiring hundreds of interventions, it is extremely difficult or even impossible to prove that any particular deficiency directly caused the death.

It is difficult and hazardous for a judicial officer to assign cause of death on the basis of patchy, poorly analysed information that is available on record. Consider in this context the following cases.

In the lead case of Jacob Mathew, a patient with confirmed, terminal cancer was admitted to a private ward of a hospital against all medical advice and specifically for comfort care. While under the care, the patient suffered a cardiac arrest and died. The allegation was that an oxygen cylinder was not available, and the patient died because he was deprived of oxygen. Medically, it may be pointed out that revival in cardiac arrest by CPR (cardio pulmonary resuscitation) is done with room air and does not need pure oxygen. Besides, in a terminal cancer patient admitted to a hospital for end-of-life comfort care, resuscitation is rarely carried out.

The patient is under DNR (do not resuscitate) orders. Yet, the allegation of death by negligence because no oxygen cylinder was available to the attending doctors was accepted. The debate at all judicial levels up to the Supreme Court was whether the doctors and the hospital should be prosecuted for criminal offence or civil offence.

The Jacob Mathew case was filed in 1995 and travelled through the Magistrate, Sessions and High Court up to the Supreme Court and finally decided in 2005. Though the judgment has been hailed for its concern and ruling to prevent harassment to medical profession by frivolous negligence complaints, the 10-year ordeal of the doctors in this case did not end.

In another lead case, that of Dr. Suresh Gupta vs NCR, the patient underwent nasal septum surgery in an Ear, Nose and Throat clinic. As is routine in most operations, the anaesthetist had passed a tube down his throat and into his trachea (windpipe) and maintained his breathing by a ventilator.

At an early stage of the operation just after an incision had been made on the septum, the patient suffered a cardiac arrest. Since he was young and had no prior cardiac problem, his relatives alleged that the surgeon had made a wrong incision because of which the patient bled to death. A post- mortem revealed secretions and a blood clot in the trachea. The jurist concluded that the patient died of asphyxia (lack of oxygen to the lungs) caused by the blood clot in the trachea.

Usually a medical jurist's verdict based on post mortem is considered final by the judicial officers. However, in this case the court considered it necessary to be examined by a Board of Experts.

The jurist's conclusions were not acceptable because a) the nick in the septum that the jurist referred to, could not have caused severe bleeding, b) there was no blood in the esophagus (food pipe) or stomach, which is where blood from a septum incision would have travelled and c) the patient had been intubated which effectively sealed the glottis (opening into the airway). The adult size tube snugly fitted the trachea and the balloon cuff at near the end of the tube was inflated after introduction to effectively block the lumen and to prevent it's slipping out.

A Board of four experts investigated the case. The jurist was asked to explain how, even presuming there was bleeding, the blood entered the trachea with a cuffed endotracheal tube in place. He opined that the tube might not have been optimal with the result that blood seeped into the trachea alongside the tube.

The jurist's explanation and conclusion that the patient died due to asphyxia caused by the blockage of the trachea from seepage of blood from the nick in the septum was not acceptable to the board of experts.

The board after examining all the records unanimously concluded as follows:

1. The death of SAK occurred due to unexplained cardiac arrest,
    
2. Hypoxic death due to asphyxia resulting from blockage of the air passage secondary to ante-mortem aspiration of blood from the wound was not likely in the presence of a cuffed endo-tracheal tube of proper size (8.5), which was introduced prior to the operation and remained in place till the patient was declared dead in Sir Ganga Ram Hospital.
    
3. The presence of fluid and clotted blood in the respiratory passage, as noted in the post-mortem report, due to trickling of decomposed bloody fluid and some clot present in the nostril from the site of incision in the nose, cannot be ruled out after the tube is taken out. It is worth mentioning in the present case that the death occurred on 18.4.1994 at 2.30 p.m. and the post-mortem was conducted on 21.4.1994 at 12.20 p.m. when sufficient degree of decomposition had started.
    
4. The clot and the bloody fluid found by the jurist on postmortem examination was due to trickling of decomposed blood that entered the trachea after the endotracheal tube had been removed, since the postmortem was done 3 days after death.

On the basis of the aforesaid medical evidence, the advocate of the accused claimed exoneration and exemption under sections 88 and 92 of the Indian Penal Code that provide statutory protection under the doctrine of good faith.

The learned judges, however, instead of exonerating the doctors of medical negligence on medical evidence, chose to decide the case on the grounds of legal technicalities, and quashed the proceedings of Criminal Negligence that were pending before a magistrate's court over ruling the high court's decision, that was challenged in the petition.

Another case of a jinxed judgment, medically speaking, was V Krishan Rao vs Nikhil Super Specialty Hospital. In this case, their Lordships held, on the basis of evidence on record:

• That the case was a simple case of malaria
• That the patient was not treated for malaria
• That the patient was wrongly treated for typhoid
• That the patient died because a simple case of malaria was treated for typhoid
• That it was a straightforward case of negligence in which no independent medical opinion was needed

The record, however, controverts all the above.

The patient was admitted in a serious condition for fever with chills. No malarial parasites were detected in the peripheral blood film examined on that day. Later, a blood film examination on record showed the presence of large numbers of Plasmodium falciparum (a malaria parasite) in different stages of its life cycle. The red blood cell count was down to 1.2 million/cumm. Liver function tests and coagulation parameters were grossly disturbed. The total white cell count was 30,900/cu mm. The chest X-ray revealed changes consistent with acute respiratory distress syndrome (ARDS). With these findings on record, obviously, it could not be a "simple case of malaria", as determined by the learned judges. The constellation of the aforesaid findings indicate that it was a case of malignant cerebral malaria caused by Plasmodium falciparum with multi-organ involvement and superadded bacterial infection (white cell count exceeding 30 thousand per cu mm).

The patient, as per the record, received intravenous Chloroquine as anti-malaria therapy. Therefore, the inference that the "simple case of malaria" was not treated for malaria was not correct.

The inference of the learned judges that the recorded treatment with broad spectrum antibiotics (which were given to cover a wide spectrum of bacterial infections) was exclusively for "treatment of typhoid", was obviously borne out of ignorance.

Lastly, it may be pointed out that only Plasmodium falciparum causes malignant cerebral malaria which is often fatal. Other species of the parasite cause so called "simple malaria" which is not a fatal illness.

The purpose of the entire judgment in this case was to show that no independent medical input is needed in deciding a medical negligence case. The judges even declared that all the previous judgments of the Supreme Court that suggested the necessity of independent medical opinion were per incuriam (in disregard of the laws).

Written By: Dr.Shri Gopal Kabra - MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
15, Vijay Nagar, D-bloc, Malviya Nagar, Jaipur-302017 Ph no: 8003516198