This report is the third instalment of a series on medical negligence. Read the previous parts here.

Three-year-old Rayan scrunches whenever someone asks about his left hand. It’s been three months since he started trying to use it to scribble. His right hand has been numb for the past eight months. He had fractured it last October when he fell on the playground. But that isn’t the reason it changed, says his family.

A resident of West Bengal’s Sonarpur, Rayan was taken to Atlas Health Point, a local private facility, where a doctor applied a plaster cast. But within hours, he felt excruciating pain, and his fingers started swelling.

“We complained to the nurses, but no doctor attended to us until the next evening,” claimed his mother Rima Ghosh. The cast was removed and then the doctors tried to reapply another one without informing the family, she alleged. Sensing something amiss, the family took Rayan away – his hand wrapped with a bandage and the family’s advance payment of Rs 5,000 returned. 

Their worst fears came true the next day at another hospital, where they were told that Rayan’s hand might have to be amputated. It was diagnosed with compartment syndrome – a condition caused by pressure build-up from internal bleeding or swelling of tissues.

Between January and March this year, the child has undergone two surgeries, but is yet to regain sensation in his right hand. “He started having temper issues, mood swings, and he gets angry when someone asks about his hand. He often says he will punish the doctor who did this,” said Rima.

Newslaundry reached out to Atlas Health Point for comment. This report will be updated if a response is received.

After the surgery in March, Rima and her husband approached the local police, the Directorate of Health Services in West Bengal, and the West Bengal Clinical Establishment Regulatory Commission, alleging a case of medical negligence. 

“The fight has just begun. We are now also planning to approach the consumer court. We are leaving no stone unturned to punish the doctor,” said Rayan’s father.

The family is not alone. 

For many who allege medical negligence at private hospitals, finding justice is an uphill battle. While the appropriate platforms to seek justice in such cases are medical councils, consumer forums, and writ petitions before courts, a lack of awareness means victims often end up approaching departments that lack the jurisdiction to tackle such matters. And for the consumers who approach consumer forums, pendency and delays take a toll.

The previous part of this series had cited research by the Vidhi Centre for Legal Policy – which analysed official data on consumer forums from 2006 till 2022 – to suggest that West Bengal had the best record when it came to cases looked at by state and district consumer forums, with decisions in 21.31 percent of the complaints. So this instalment decided to look at case studies in the state to understand how the grievance redressal machinery works, in cases involving private practitioners and facilities.

At consumer forums, a slim chance of justice

People for Better Treatment, a non-profit assisting such patients in West Bengal, told Newslaundry that they receive at least five to six complaints every month. PBT’s vice president Dr Sarbajit Basu said the reason why families approach the organisation is because they are often unaware of the legal steps to take in such cases.

“In medical negligence cases, documentation is crucial. However, people often don’t know what documents they need, and hospitals tend to keep them in the dark, hesitating to hand over all relevant documents,” said Dr Basu.

He pointed out that the bed head ticket, or BHT – which is a documentation of all the treatment provided to a patient from admission to discharge – is vital to initiate legal proceedings. “Most patients have no idea about it. When they seek it from the hospital, the hospitals often hesitate or delay. Our first step is always to assist them in accessing the BHT,” he told Newslaundry.

Awareness can change the course of such cases.

In January 2016, Sadhana Pal, the sole breadwinner in her family, sought medical advice from a prominent private practitioner in Kolkata for joint pain. Her husband, Somnath Pal, recounted their ordeal to Newslaundry at their residence in Howrah’s Mourigram.

“The doctor was well-known, and one had to book an appointment by paying Rs 500. From January to April 2016, we took her to the doctor at least five times. Each time he prescribed some medicine, but there was no improvement,” Somnath said.

On April 5, 2016, Sadhana was taken to the private clinic for the last time with fever and severe body pain. “The doctor gave her some medicine again, after which she developed a severe fever. On April 10, when I returned home around 11.30 am, she slipped into delirium and began speaking incoherently. I panicked and called another doctor since it was a Sunday and no doctors were available. This doctor got furious upon seeing the prior prescriptions, as the medicines were meant for cancer patients,” Somnath alleged.

Following the doctor’s advice, Sadhana was immediately shifted to Howrah District Hospital, placed on oxygen support, then moved to the CCU, and later put on a ventilator. On April 14, she was declared dead due to Bilateral Pneumonia and Acute Respiratory Distress Syndrome.

“For the first few days, we were all devastated. But then I contacted PBT. I collected the BHT and filed a consumer case and a complaint with the state medical council,” Somnath said.

In March this year, the West Bengal State Medical Council found the doctor guilty of “deficient record-keeping” regarding the patient’s history and other findings in his prescriptions. He was let off with a warning.

Somnath wanted to appeal to the National Medical Commission, but his appeal was returned, as the NMC no longer accepts appeals from non-medical practitioners per the NMC Act 2019.

His fight within the consumer court, also known as the consumer commission or forum, has been lengthy. In 2018, the court obtained an expert opinion from the Superintendent of Medical College and Hospital, Kolkata. The expert committee found medical negligence on the doctor’s part, noting the lack of standard care, missing registration number, and area of specialisation in the prescription.

"Furthermore, none of the prescriptions mentioned any presenting complaints, history of present and past illness, history of drug hypersensitivity, or notes of detailed clinical examinations (except BP and weight). The treating physician prescribed various medicines in all prescriptions without writing any confirmed or provisional diagnosis,” the report read.

Some respite came seven years later in August 2023, when the state consumer court awarded Pal’s family Rs 35 lakh in compensation. However, the doctor challenged the decision before the National Consumer Dispute Redressal Commission, prolonging the quest for justice.

‘He was fit when I took him to hospital’

 Animesh Chandra Sarkar and his wife Aparna Sarkar are seeking justice for their 37-year-old son Arijit Sarkar, who died after a gallbladder stone operation last year. 

Arijit was admitted to Fortis Hospital and Kidney Institute in June 2023. After the operation, he was in extreme pain, unconscious for nearly eight hours, and heavily bleeding from drain pipes. Despite his condition, the doctor removed the drain pipes and decided to discharge him four days later.

“When the doctor informed us that he had been discharged, I asked how they could discharge him when he couldn’t even stand and fluid was still coming out. I refused to bring him home,” Aparna told Newslaundry.

The discharge happened the next day, with the assurance that he could be readmitted if his condition worsened. The fluids initially stopped, but his abdomen swelled, and he experienced chest discomfort and a severe breathing problem. “After bringing him home, he told me he couldn’t urinate for more than 24 hours. He was in pain and unable to sleep. We called an ambulance, but he died while being taken downstairs. He was fit and well when we took him to the hospital. How can someone die from a gallbladder operation,” she asked.

Newslaundry reached out to Fortis for comment. This report will be updated if a response is received.

The Sarkars have lodged a complaint with the West Bengal Medical Council and are planning to pursue their case before consumer courts. The family is being helped by PBT.

Formed in 2001 by Dr Kunal Saha, whose wife died due to wrongful treatment in 1998, PBT is currently pursuing 85 cases of medical negligence in various consumer courts across the country. Saha, who personally argues most of these cases, said the outfit has moved more than 300 cases so far. 

‘Not a single allopathic doctor criminally convicted and jailed’

“In the annals of medico-legal jurisprudence in India, not a single allopathic registered medical practitioner has ever been criminally convicted under IPC Section 304A for medical negligence and put in jail for causing the death of a patient. Another judgment in 2005 by the Supreme Court in Jacob Mathew vs State of Punjab has made it virtually impossible for victims of malpractice to hold a doctor criminally liable without prior medical opinion from another physician that the accused doctor was grossly negligent,” he said.

Consumer forums deal with civil cases and can award compensation, while criminal proceedings against medical practitioners in India need approval from a medical board for an FIR. Medical councils, on the other hand, have been criticised for being too lenient.

A study by the Vidhi Centre for Legal Policy based on official data of consumer cases from 2010 to 2022 found that patients are more likely to approach consumer forums than file criminal complaints, and most criminal prosecutions end favourably for healthcare providers. Of the 80 prosecutions at the district level, only five resulted in a conviction – a conviction rate of just 6 percent.

Many of these fall apart in the high court, with only 22 percent convictions being upheld, according to Vidhi’s study. 

Pendency, delay and ‘corruption’

Delays in consumer courts often extend far beyond the stipulated timelines, causing agony to the victims.

Ratna Ghosh’s fight for justice for her sister’s death began in 2008. Her sister, Swapna Ghosh, who had an intellectual disability and was physically handicapped, was admitted to a local nursing home in Rishra near Kolkata for a carbuncle removal. She returned home with a swollen body, missing teeth, and in coma – she never regained consciousness and died in 2008. 

In 2010, Ratna filed a consumer case and a criminal case the following year. However, the accused doctor filed a miscellaneous application before the state consumer commission seeking a stay, citing ongoing criminal proceedings on the same charges.

In 2017, Ratna approached the state commission to vacate the stay order, but her appeal was dismissed. The following year, she filed an appeal against this decision before the National Consumer Dispute Redressal Commission. In December 2021, the NCDRC vacated the stay order, stating there was no bar on simultaneous criminal proceedings in medical negligence cases, and directed the state commission to decide the matter expeditiously, preferably within six months.

Yet, two years later, the state commission dismissed the case, alleging that the complainant was absent on a single day.

“Countless cases are routinely adjourned in this court every day when nobody appears for either side. To dismiss Ratna Ghosh’s case for a single absence depicts the deep-rooted corruption in the court. We have already challenged this order before the NCDRC, which should come up for hearing soon,” said Dr Kunal Saha, who is representing the case.

Dr Saha pointed to several other examples.

In 2019, the West Bengal State Consumer Dispute Redressal Commission dismissed a case after holding countless hearings for a decade on the grounds of limitation, asserting it was filed too late. The case involved the death of a complainant’s husband following a brain tumour surgery in 2009. The complainant argued that no “informed consent” was taken regarding the operation’s risks and sought compensation of Rs 99,99,000 for pecuniary and non-pecuniary damages.

The commission dismissed the case saying that the complaint was registered four years after the incident – a consumer dispute must be filed within two years of an incident. This was despite the complainant’s contention that the accused did not question the limitation period in the initial phase of the proceeding. The complainant has since appealed to the NCDRC, and the case is pending.

Saha alleged that he has been repeatedly prevented from representing victims via video conferencing in consumer courts and had to resort to legal measures to do so. In 2021, he filed a writ petition before the Calcutta High Court, alleging a violation of his fundamental rights.

“The Supreme Court directed last year that all courts and tribunals in India must have VC hearings by November 15, 2023. More than six months later, most state and district consumer courts are still reluctant to hold VC hearings, although the NCDRC has started holding VC hearings where I regularly appear for victims from my residence in the USA. We have sent a contempt notice to the West Bengal State Consumer Court, but they are still staunchly refusing to hold VC hearings.”

Saha also pointed out other flaws in consumer forums.

For example, Section 38(7) of the Consumer Protection Act 2019 mandates that all complaints should be disposed of within three months when no expert opinion is required and within five months when it is necessary.

However, consumer courts across the country are often unable to maintain this, he claimed. “Most cases in consumer courts deal with issues like defective products or disputes between promoters and flat owners…we have repeatedly asked the government to establish a ‘fast-track’ court solely for medical negligence cases for obvious reasons. Unfortunately, there has been no progress.”

Newslaundry reached out to the NCDRC and the SCDRC in West Bengal for comment. This copy will be updated if a response is received to the questions emailed to them.

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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