It took five years for doctors to diagnose the reason for Harshina's abdomen pain: a pair of forceps left inside during her third caesarean surgery in 2017. It had punctured her bladder causing infections so severe that she couldn’t even walk properly. The egregious act of criminal negligence happened while she was at the Institute of Maternal and Child Health at Government Medical College Hospital, Kozhikode, to deliver her third child. 

“Even the slightest touch would cause terrible pain,” said Harshina, who was then an undergraduate student who dreamed of a job. The foreign object was finally removed in 2022 by the surgeons of the Government Medical College Hospital in Kozhikode but her struggles are far from over. The uphill battle for compensation and to prosecute those responsible for risking her life is draining her. 

Harshina lodged a police complaint on March 1, 2023, leading to an FIR against two doctors and two nurses. The Kerala government soon announced a compensation of Rs 2 lakh, but she declined the offer. It was a pittance when weighed against the physical pain and discomfort she had to endure for years, impairing quality of life. Multiple surgeries left her scarred physically and drained her emotionally, for life.

“Everything changed overnight. Following the c-section surgery, I underwent three more surgeries due to infections caused by their mistake. I deserve more compensation. That’s why I decided to fight for it,” Harshina said.

TNM reached out to the principal of Kozhikode Medical College Hospital for a comment. The story will be updated if a response is received. 

There are already signs that the lawsuit will be long-drawn, an ordeal that often leaves victims of medical negligence disillusioned.

The medical college police submitted a chargesheet in the case at the Kunnamangalam court only after Harshina sat in protest for three months in front of the hospital demanding action against the medical professionals and more compensation. The chargesheet clearly mentioned that it was a medical negligence case. 

“My only wish is for a verdict before I die,” said Harshina. 

Even as the trial was pending at the Judicial First Class Magistrate Court Kunnamangalam, the accused moved the Kerala High Court.

Harshina’s legal battle has only begun but many others are going through protracted struggles even after favourable verdicts.

A study by the Vidhi Centre for Legal Policy in December 2023 showed that in Kerala, judgements in civil complaints related to medical negligence were delivered in 19 percent of cases at the state and district-level courts. The highest number of decisions were delivered in West Bengal (21 percent). In Kerala, when victims or their kin pressed for criminal indictment, the figure is even lower – five percent in district courts and 7.96 percent in the high court. 

Only three states – Andhra Pradesh, Karnataka and Bihar – have a lower percentage than Kerala when it comes to criminal medical negligence cases in district courts. The report’s analysis attributes the low figure to pre-trial dismissals of a large number of criminal complaints or FIRs instituted against healthcare providers. 

“This at least partially explains why the number of judgments in the district courts data is low,” the report states. 

In Kerala, medical negligence victims face an uphill battle for justice, with prolonged legal proceedings and low resolution rates which often leave them disillusioned. The Vidhi report underscores the complex challenge of balancing patient rights with the realities of medical practice, highlighting the urgent need for reform in how medical negligence cases are handled and resolved.

Harshina said she’s awaiting the high court decision. “I have no idea when the hearing will be held again and how many years before I get justice,” said Harshina, who is deeply worried about the future. “I don’t know what will happen to me tomorrow. I am unable to do any work now.”

Long-drawn battles

Leelamma Joseph, 68, has been awaiting compensation for the past 11 years, despite a favourable judgement. 

In 2013, the Kerala State Consumer Disputes Redressal Commission ordered a compensation of Rs 22 lakh; however, she is yet to receive it because of a stay order. 

In 2003, Leelamma underwent a hysterectomy, a surgical procedure to remove the uterus. Initially, they consulted a doctor in Mumbai, where her husband Joseph worked, and opted for surgery in Thiruvananthapuram. They consulted a gynaecologist at a private hospital, where Leelamma eventually underwent the surgery. 

“The referral letter clearly mentioned that she needed an open surgery. But they did a keyhole surgery without our consent. This led to complications and they did another keyhole surgery which led to a tear in her urinary bladder. This can cause uric acid poisoning, only God’s grace saved her,” Joseph said.

She had to undergo seven other surgeries to repair the damage caused by the initial two surgeries. In 2005 they filed a complaint with the CRDC and earned a favourable judgement after eight years. 

“Every year, hundreds of medical negligence cases are registered in the state. Many believe victims may not get justice. It will indeed take time but we should stand strong and fight for our loved ones,” said advocate Suchithra S, chairperson of the Jananeethi Samrakshana Vedi, a forum recently established to assist victims of medical negligence.

Her resolve to fight for victims of medical negligence came from a personal tragedy. 

Suchithra lost her mother Suseela to alleged medical negligence by a private hospital in Chalakudy more than two years ago. Suseela Devi was admitted to the Intensive Care Unit of the hospital in 2022 after she experienced tiredness and difficulty in eating. She was administered a Ryles tube, designed for long-term feeding and inserted directly into the stomach through nose or mouth. She died within two days allegedly due to displacement of the Ryles tube into her lungs.

“We shifted her to the Kalamassery Government Medical College from the private hospital. However she couldn’t be saved,” Suchithra said. “The medical board found evidence of medical negligence at the private hospital. The probe regarding failures of the medical college hospital is ongoing. We were unable to identify the culprit because all these happen in the ICU and the ICU doesn’t have CCTV.”

TNM reached out to Dr Ganesh, superintendent of Kalamassery Medical College Hospital but he was reluctant to respond since the matter is in court. 

Vidhi Centre's analysis also showed the average disposal time of consumer complaints in State Consumer Disputes Redressal Commissions (CRDCs) in India was six years. The longest was 18 years. Comparatively less time was taken by national commissions and district forums. 

The centre used data mined from the Computerization and Computer Networking of Consumer Forums – the official online portal for filing and tracking cases under the Consumer Protection Acts – for all years since the enactment of the Consumer Protection Act, of 1986 for these insights. 

Protracted trials, alleged ‘bias’ of experts

The Supreme Court introduced several layers of protection for medical professionals including strictures against entertaining a private complaint unless the complainant produces prima facie evidence in the form of a credible opinion by a competent doctor.

In the Dr Jacob Mathew case, the Supreme Court stated that if doctors are to be made criminally responsible for the death of a patient, negligence or incompetence on their part needs to be established beyond civil liability. Criminal liability would rise only if they did something in disregard of life and safety of the patient.

The police, before filing an FIR, should obtain an independent and competent medical opinion. The onus of procuring independent medical opinion – a criteria known as Bolam test – is on the complainant. The Supreme Court also barred arrests of doctors unless it is necessary for further investigation or collecting evidence.

An Assistant Commissioner of Police is responsible for assigning cases to the district expert panel. “The team includes the District Medical Officer, a government pleader, and heads of concerned medical specialties who verify the medical documents. After the investigation, the report will be handed over to the ACP, who then submits it to the court,” said the District Medical Officer of Thrissur, explaining the procedure.

B Kemal Pasha, a retired judge of the Kerala High Court, attributed the delays to pendency of cases and the efficiency of the presiding judge. 

Victims or their kin too can move the court even if the medical board report isn’t favourable or if it is taking time. “They only need to prove negligence, for that they need to submit medical evidence,” said Kemal Pasha.

In case of death, the relatives of the victim should submit a post-mortem report to prove the cause. “If any metal object has been left behind it can be proven by submitting an x-ray scan report. They would also need to present a medical expert during the hearing,” he said. 

However, it isn’t easy. A lawyer with many years of experience in handling medical negligence told TNM that the majority of the doctors on the medical board as well as senior doctors who appear in court to give expert opinions tend to be biassed in favour of doctors.

“No doctor will come and speak against another doctor. Doctors called to testify would often be briefed by the Indian Medical Association. Some kind of manoeuvring is done. We can't ignore the factor. Then there are deliberate delays, which is a kind of harassment. They drag the cases as much as they can, which may lead the victims or their family to give up on seeking justice,” he alleged.  

In Harshina’s case, a nine-member medical board rejected the police report and said it was impossible to determine during which of the three caesarean surgeries the equipment was left in her abdomen. This was despite an MRI scan report from January 2017 not showing any presence of any metal object in her body. Only two out of nine members of the board disagreed with the decision. 

“Before my third pregnancy, I had an MRI scan because of a headache. Experts say that if there had been any metal in my stomach during the MRI, it should have been discovered at that time, or I could have experienced complications. However, nothing was found. This indicates that negligence occurred during my third delivery," Harshina told TNM.

Advocate Rajesh Kumar, who has keenly followed Harshina’s case, told TNM that only the majority opinion matters in such cases. “The medical board’s report is crucial in medical negligence cases because here police don't have the expertise to investigate. The court considers the majority opinion. Disagreements by two board members won’t have much value,” said Rajesh, who believes doctors tend to be biassed while investigating failures of other doctors.  

Laws and medical negligence

In India, medical negligence that results in death is now registered under Section 106(1) of the Bharatiya Nyay Sanhita, which replaced the Indian Penal Code on July 1, 2024. It states that if someone causes the death of another person by a rash or negligent act, they can be punished with up to five years in prison and a fine. This includes medical professionals too.

Earlier, medical negligence cases were registered under section 304A of the penal code. The new law is more strict compared to the IPC as it mandates fine and imprisonment. 

Additionally, in India, there is a barrier to prosecuting the government health care professionals in criminal cases. 

Section 197 of the Code of Criminal Procedure – which offers protection to government servants, including healthcare providers, against prosecution for acts committed during their official duties –  was replaced by Section 218 of the Bhartiya Nagarik Suraksha Sanhita. It states that no court can take cognisance of an offence alleged to have been committed by a public servant while acting in the discharge of their official duty, unless the union government has given prior sanction. 

This provision is designed to ensure that public servants can perform their responsibilities without fear of legal harassment. However,  health professionals in the private sector aren’t covered by this provision. Also, this is only applicable in criminal cases. 

In 2021, the Supreme Court called for guidelines to protect doctors from frivolous prosecution against medical negligence. In the same year, the National Medical Commission issued a set of guidelines to be followed in medical negligence cases. According to Dr Rosenara Beegum, the state president of the Kerala Government Medical College Teachers Association, the Kerala government is yet to formulate guidelines based on it.

In 2021, the Kerala government drafted a bill – the Kerala Medical Practitioners (Protection from Frivolous and Unjust Prosecutions) Bill – to safeguard medical practitioners from legal actions. It prevents frivolous complaints or cases that could harm a medical professional, especially allegations that are not backed by substantial evidence. But it never became a law.

Medical audits for safer healthcare

In Kerala, medical negligence cases are regularly reported from both government and private hospitals. However, a spurt in such cases from government medical institutions and the outrage over it have led to announcement of medical audits in state-run hospitals.  

“There is widespread propaganda that negligence occurs in all government hospitals and medical colleges. But when we check the data, the number of medical negligence deaths has reasonably decreased in the past 10 years,” Veena George, state health minister said. 

But the data is not publicly available yet. In a response to an RTI query by TNM, the health department said it doesn’t have data on medical negligence cases and details can be obtained from the Kerala Council for Clinical Establishments.

Individual health care professionals are often blamed for errors but it is also about systems that need to be made safer. The state government has now decided to introduce a medical audit by an expert committee in all hospitals. The committee will evaluate the treatment protocol given to patients who faced medical negligence.

The government has also reintroduced the death audit to investigate the cause of death and the treatment protocol followed in all medical colleges, which was stopped in between.

Dr Rosenara Beegum said criminal negligence needs to be distinguished from professional error. “Criminal negligence implies criminal intent. However, no doctor can treat a patient with the intention to hurt them. If an error occurs we should approach it sensibly,” she told TNM. 

Prolonged trials in medical negligence cases affect the functioning of the system. “If a negligence case has been reported, the doctor is suspended till the case is resolved. In the doctor's absence, other doctors are forced to work longer hours to make up for it," she said.

In an atmosphere of fear and mistrust doctors are unable to rely on their accumulated experience when making decisions. “Apart from the textbook knowledge, a doctor’s experience matters. Every doctor develops a sense through experience and sometimes needs to make treatment decisions intuitively. If an error occurs, it might not be intentional. Something untoward might have happened even otherwise but we have tried to save the patient. Now nobody shows the courage to do that. Now they  document everything and adhere strictly to existing standard practices,” Dr Rosenara said. 

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.

This report is republished from The News Minute as part of The News Minute-Newslaundry alliance. It has been lightly edited for style and clarity. Click here to subscribe and support quality journalism.