Medical Negligence In India: Urgent Call For Comprehensive Data, Tort Reforms, And Cultural Transformation To Revitalize Healthcare System

Medical negligence—a term used when there is a breach in discharging the standard of care by a doctor toward their patients and failing to deliver reasonable care and skill results in injury/damage to the patient.1 Though the phrases "medical malpractice" and "medical negligence" are not synonymous in the strict sense, they are used interchangeably in this article. According to the current legal and regulatory framework in India, patients can seek redressal broadly in three different ways for alleged medical negligence: initiate a criminal case, civil suit (either in a civil court as per jurisdiction or Consumer Dispute Redressal Commission), and file a complaint in the State Medical Council. Although the first Consumer Protection Act (CPA) was enacted in 1986 (now replaced by CPA 2019), it was not until the Indian Supreme Court's 1995 decision in the Indian Medical Association vs. V.P. Shantha and Ors. case that it became established that doctors, hospitals, and medical services fell under the purview of CPA.2 Since then, there has been an increase in the number of complaints to consumer commissions alleging medical negligence; nevertheless, we lack measurable statistics to recognize the malpractice crisis that our nation is currently experiencing. It is intriguing to note that many developed countries maintain a database to keep track of the incidence of medical malpractice claims and the financial burden associated with it. For instance, the National Health Service Litigation Authority (NHSLA), in the United Kingdom, has a distinctive system for keeping track of clinical and non-clinical negligence claims every year across the nation.3,4 The yearly statistics of such data help in identifying case types, incident locations, compensation amounts provided, etc., and it helps in locating the main reasons for shortcomings in patient safety and healthcare quality. It goes further to address the problem, such as strategizing to minimize errors and ultimately lightening the load of lawsuits. Every major healthcare system in the world keeps a watch out for negligence cases and considers their rise to be a severe threat to the country's healthcare system. In recent years, several countries have attempted to introduce tort reform to address the medical malpractice crisis (when a nation has seen a sharp increase in medical malpractice lawsuits from patients during the previous 10 to 15 years, it is said to be in a "malpractice crisis." A sharp upsurge in medical malpractice insurance rates, a rise in court awards and settlements for both economic and non-economic damages, and an increase in the possibility of punitive penalties are further warning signs). These elements raise concerns about potential future repercussions and encourage careful consideration of changing the current tort system. These changes must be based on the data currently available about the burden on each nation's healthcare system, thus creating a more sustainable healthcare system.5-8 Few countries either in part or whole have already taken steps to implement tort reforms, while some countries, such as New Zealand and Sweden, have implemented no-fault medical compensation schemes.8-10 These sorts of reforms emphasize how crucial it is to have a database to evaluate the issue at hand and implement practical solutions to lighten the financial burden on a country's healthcare system. Currently, assessing the trend and quantum of litigations of medical negligence (civil) in India faces challenges due to the dearth of comprehensive data. Although sporadic information from news articles is available, it does not provide a nationwide perspective. According to legal sources, medical negligence litigations witnessed a 400% surge in recent years. Punjab, West Bengal, Maharashtra, and Tamil Nadu lead in states with medical negligence litigation, accounting for 24%, 17%, 16%, and 11%, respectively.11 However, according to the National Crime Record Bureau (NCRB), between 2017 and 2022 over 1000 criminal cases were registered against doctors for causing death due to alleged negligence.12 This rise in litigations can be attributed to heightened public awareness of patient rights and the CPA, prompting patients to seek legal remedies for perceived losses or injuries. This trend adds complexity to the legal challenges confronting healthcare professionals. However, a significant portion of these allegations seem to be frivolous or vexatious.13 Doctors, entangled in such cases, often grapple with anxiety and uncertainty, emerging as the "second victims" in medical negligence disputes.14 The outcomes of these cases are influenced by factors, such as legal complexities, court precedents, and evolving regulations, areas where doctors may lack awareness of pertinent changes. With this background, we tried to determine the burden of civil negligence cases that had been filed and adjudicated throughout India, but it astounded us to learn that no such complete information is available on any official websites or legal forums to the best of our knowledge. Therefore, we requested the National Consumer Dispute Redressal Commission (NCDRC) through the Right to Information (RTI) Act for data about the total number of medical negligence cases filed from January 1996 to December 2021 (last 25 years) at the District, State, and National levels. In addition, inquiry about the number of appeals filed against these commissions' rulings, who filed them, and on what grounds were sought. Data about the information on the number of appeals for complaints concerning taking disciplinary action (alleged negligence claims) against doctors (against the order of various State Medical Councils) were requested from the National Medical Commission (NMC) of India. We were informed by NCDRC and NMC, respectively, that no such category-wise data are available. Such paucity of data grossly limits us in identifying the magnitude of underlying problems and financial burden on the healthcare system and developing strategies to minimize such errors, etc., which eventually results in the practice of defensive medicine (DM).15-17 DM refers to medical practices by healthcare professionals primarily to protect themselves from potential litigation rather than solely for the benefit of the patient. Healthcare providers engage in DM by ordering unnecessary tests, procedures, or treatments, with the primary goal of shielding themselves from legal liability (assurance behavior/positive DM) rather than addressing the patient's actual medical needs. In certain instances, the healthcare providers intentionally avoid any beneficial investigations or therapy that may carry risk and avoid or refuse access to care of patients with chronic complex medical problems (avoidance behavior/negative DM). DM could be labeled as an epidemic in this current era of litigations. Many studies have proven that DM is prevalent among doctors in many countries across various specialities. DM can have several negative consequences, including unnecessary healthcare costs, overutilization of medical resources, and potential harm to patients due to unnecessary interventions, and eventually, there will be an overall increase in healthcare expenses.17-19 Hence, we believe it is imperative to fill this gap as we move forward because it is crucial to do the required research and take the appropriate corrective action to avoid the cascading consequences and bring about a cultural transformation in health care. This transformation comprises a shift from a punitive to a constructive mindset to foster safe reporting of mistakes, near-misses, bad occurrences, etc., so that professionals may learn from individual, system traps, and errors. These steps are regarded as a paradigm shift in health care, emphasizing both individual and collective accountability.20 In addition to these transformations, which aimed at enhancing the caliber of the healthcare system, tort law reform (capping damages, a uniform method to calculate damages to be awarded, etc.) in turn will accelerate the progress in combating DM and lessen the financial stress pinching on our healthcare system. Recommendations to intensify our combat against the malpractice crisis: To accurately represent the magnitude of the issue, a comprehensive national database of the number of lawsuits brought against physicians and institutions across various forums must be established. Thematic categorization of the claims must be studied to apply risk management in clinical settings and raise awareness among medical professionals. In cases of proven negligence, there must be a standard procedure for determining compensation for situations/facts of the case that are identical across the nation. Data on monetary awards (economic, non-economic, and punitive) from orders and judgments must be recorded and examined to implement the essential tort reforms and work toward a healthcare system that is both accessible and sustainable. To make judgments and orders on medical negligence easier to find, a database on act- or theme-wise (medical negligence) segregation on the websites of honorable courts, commissions, and medical councils should be established. To comprehend the psychology/reasons behind an appeal and any shortcomings in our system, it is necessary to examine the number of appeals filed against the orders and or judgments rendered by various commissions, courts, and/or medical councils. Any decision, judgment, or opinion that is overturned, modified, or remanded for any reason by a higher commission, court, or any appellate body, must be thoroughly examined to recognize any shortcomings in our legal/regulatory framework and healthcare systems and take necessary steps to systematically address them.