Medical Negligence: “It Took 15 Years and $5M to Get Justice in India"

Here are the transcripts of the interview of Prema Sridevi, Editor in Chief of The Probe with Dr. Kunal Saha, President of People for Better Treatment (PBT) on medical negligence and medical justice in India. 

Prema Sridevi: I have with me Dr. Kunal Saha, who is the President of People for Better Treatment (PBT). Through PBT, Dr. Saha has been crusading against medical negligence. Dr. Saha himself is a victim of medical malpractice, having lost his wife Anuradha Saha to medical negligence. What started as a fight for justice for Anuradha in the late 90s soon became a movement. The Anuradha Saha judgment is one of the historic judgments in India related to medical negligence. For years, through PBT, Dr. Saha has been helping many victims of medical malpractice and their families. Thank you, Dr. Saha, for joining me.

Dr. Kunal Saha: Thank you.

Prema Sridevi: Dr. Saha, the fact is that much needs to change in India as far as patient rights are concerned. Much more needs to be done to make doctors and hospitals accountable in cases of medical negligence. But before we get into this, please tell us what happened to Anuradha, and how did you navigate the legal fight in this case? Why is the Anuradha Saha judgment so important when we talk about medical malpractice in India?

Dr. Kunal Saha: Yes. So, this was in 1998. Both Anuradha and I were settled in the USA as a young couple. I was a doctor from India, and she was a child psychologist. In 1998, we were about to start our married life together. We went to Kolkata for a vacation to get her parents' blessings before starting our family life. During our trip, Anuradha developed symptoms of drug allergies. The condition was known as Toxic Epidermal Necrolysis (TEN). The treatment for such an allergy is to stop the triggering drug immediately. However, the doctor administered a long-acting steroid called Depomedrol, twice every day, which should never be given in such acute conditions. The medicine was supposed to be given at the most once every week but he gave her twice everyday and this completely killed her immunity and she died. 

"It took 15 years and 5 million dollars to get justice"

Prema Sridevi: It's heartbreaking to hear your story, Dr. Saha. What helped you navigate this long legal battle that went about for 15 years to get justice for Anuradha?

Dr. Kunal Saha: It was a long and arduous battle, taking 15 years and costing about 5 million dollars to get justice in India. Despite not having prior experience fighting medical malpractice cases, I was determined because Anuradha was not just my wife; she was my best friend and inspiration. This fight became my mission, and I realised the broader implications for other victims of medical negligence.

I had certain advantages, like being a doctor myself, so I understood the medical side of things. I was also based in the US, which gave me financial stability and protection from possible threats. These factors, combined with my determination, helped me pursue justice.

Prema Sridevi: What happened to the doctors involved in Anuradha's case?

Dr. Kunal Saha: Three doctors were mainly involved, but two of them have passed away. The main culprit, Dr. Sukumar Mukherjee, is still alive and politically influential. His medical license was suspended, and he, along with the hospital, was fined significantly. This fight was not just against one doctor but against a system that often combines ignorance and arrogance, leading to medical malpractice.

Prema Sridevi: Earlier, we did a report on how the National Medical Commission (NMC) quietly stripped away patients' rights. According to the current regulations, victims of medical negligence no longer have the right to appeal, a right that was previously included in the Indian Medical Council Regulations of 2002. Ironically, doctors who have complaints filed against them still retain the right to appeal decisions made by the State Medical Council. What does this say about our healthcare regulations? Do they prioritise patients and their rights, or do they favor powerful hospitals and doctors?

"I have evidence of NMC using the new law selectively"

Dr. Kunal Saha: The new regulations favour doctors over patients. This change shows a bias towards protecting doctors rather than prioritising patient safety and rights. The NMC is such a body that the left hand doesn't know what the right hand is doing. You will be surprised to know that when NMC has been rejecting the patients appeal quoting the new law, in some cases the NMC is selectively admitting appeals from patients. I have evidence of this. 

Prema Sridevi: You have submitted a memorandum to the health ministry regarding what you call an unjust order by the Supreme Court. You’ve stated that the order prevents anyone from filing a case under the Consumer Protection Act of 2019 against negligent doctors, even if they are responsible for causing the death of a patient. We haven't seen much reporting on this story. Could you please tell us more about this order and the circumstances under which it was delivered?

Dr. Kunal Saha: Yes, the Supreme Court, in a case related to lawyers, made an observation that doctors, like lawyers, should not be sued under the Consumer Protection Act. This is contrary to the established law since the 1995 VP Shanta judgment, which allowed patients to sue doctors for negligence under the Consumer Protection Act. This recent order is a significant setback for patient rights, and we are preparing to challenge it legally.

Prema Sridevi: The Supreme Court, while hearing a set of appeals related to medical negligence, observed that to hold a medical practitioner liable for negligence, a higher threshold must be met. The Court stated that this is to ensure that doctors are focused on deciding the best course of treatment rather than being concerned about possible punishment. What do you have to say regarding this threshold limit? Do you think this is a move in the right direction?

"Hardly any doctor is punished in India"

Dr. Kunal Saha: No, it is not the right direction. I live in America but spent half my life in India, so I’ve seen both sides as a doctor and as a victim. Hardly any doctor is punished in India, which is common knowledge. Today, the chances of winning consumer court cases are very slim, not more than two to five percent. Most cases are dismissed, and they are claiming these as frivolous lawsuits. After winning the biggest case, it took me 15 years, and I lost in all the lower courts before succeeding in the Supreme Court. If that is the threshold of winning, not a single person in India can win a case.

Prema Sridevi: Recently, the Delhi State Consumer Disputes Redressal Commission dismissed a complaint against Max Hospital, stating that mere claims of medical malpractice is not enough. The burden of proof lies with the claimant. Shifting the entire burden of proof on the victim, who has already lost so much, what does this say about medical accountability?

Dr. Kunal Saha: I agree that the first burden of proof lies with the complainant to show prima facie evidence of medical negligence. However, there’s a legal principle called "res ipsa loquitur," which means the evidence speaks for itself. For instance, if a patient goes in for an appendix surgery and dies due to a rotten towel left in the abdomen, it’s clear evidence of negligence. I am handling these cases. In many cases, hospitals don’t even provide medical records. The law mandates they provide these records within five days, but this is often ignored. Without these records, proving a case is nearly impossible.

Prema Sridevi: Given that in some cases, the hospital does not provide medical records, what can a patient do to ensure they have enough evidence to make a case?

Dr. Kunal Saha: Patients must demand their medical records by law, stating that failure to provide these records within five days will result in accountability for misconduct. Our website, PBT India, provides a draft letter for this purpose. Once you have the records, consult a medical expert to verify if negligence occurred. Then, you can proceed with a civil or consumer court case. Criminal cases are challenging due to systemic corruption, but filing a complaint with the respective State Medical Council is necessary, despite their biases.

Prema Sridevi: For many, it seems like the government and judiciary often side with doctors and hospitals. For instance, Union Home Minister Amit Shah stated that doctors would be exempt from criminal prosecution in cases of death due to medical negligence. What has the system really done for patient rights and safety?

Dr. Kunal Saha: Nothing at all. The root cause is corruption within the healthcare system. The Indian Medical Association (IMA) is very powerful, and the government often sides with them. This is why the laws are skewed against patients. Changing the system requires public awareness and collective action. In countries like the USA and the UK, medical boards include non-doctors to ensure impartiality. India needs a similar reform to make the system accountable.

Prema Sridevi: What is your advice to people who face medical malpractice? What measures should they take to make doctors and hospitals accountable?

Dr. Kunal Saha: First, demand all medical records using the legal provisions. Once you have the records, consult a medical expert to assess the case. Then, consider filing a complaint with the respective State Medical Council and a consumer court case. Avoid going to the police for criminal cases as it often leads nowhere. It's crucial to be aware of your rights and seek guidance from organisations like PBT. We provide free support and will help navigate the legal challenges. The fight is long and challenging, but it's necessary to stand up for justice.

Prema Sridevi: Thank you, Dr. Saha, for your insights. It was great having you.

Dr. Kunal Saha: Thank you, Prema. I'm happy to do this.

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