In 2009, Sajeena Jaleel was admitted to a hospital in Kochi following profuse bleeding. She was pregnant and her doctor said the only way to stop bleeding was to terminate the pregnancy.
Later, the doctor informed her husband that an abortion was carried out by way of D&C procedure. But after a few days, symptoms of pregnancy persisited, which was later confirmed.
Sajeena approached the Ernakulam Consumer Dispute Redressal Forum citing medical negligence and the forum asked the opposite party to pay compensation. This is one among many such cases.
Much to the dismay of many, cases of medical negligence are on the rise in the city. According to the officials with the consumer forum, there has not been a single hospital in the city against which a case has not been registered.
“Till 2009, the forum has disposed of 64 such cases. There are many more pending. The recent graph shows that the forum receives about 25 to 30 such cases annually,” said A Rajesh, president, Ernakulam Consumer Dispute Forum. Only medical negligence that happens in private hospitals come under the purview of consumer forum. “The definition of a consumer is somebody who avails services by paying. Since government hospitals give concession, any mistakes happening there would not come under the forum. So, the actual numbers can be very high,” he said.
Rajesh said the cases of medical negligence are the toughest to handle. In 2009, when the Indian Medical Association (IMA) intensified its struggle to exclude hospitals from the ambit of consumer forums, Justice Markandeya Katju pronounced a judgement to refer such cases to a panel of doctors. But, later the Supreme Court declared it as ‘per incurium’ (a legal decision given without reference to a statutory provision or earlier judgment) in another case and hence that law was set aside.
Now, the consumer jurists were left with no other alternative but to resort to the doctrine ‘the thing itself speaks’, ie the elements of care and breach can sometimes be inferred from the very nature of the outcome. It is based on this doctrine that we pass judgments on such cases. In the cases of Sajeena Jaleel, her case sheet clearly shows the uterus was empty. But, the opposite party argued that there were twin foetuses and one was invisible. They terminated only the visible one. The forum could not accept that argument,” he said.
“Despite lengthy procedures, hardly any doctors would give speak against other doctors. The absence of medical literature is also an issue. The government should have provided it and it is the perfect way to find out whether the doctors have given suitable treatment,” the official said.
“There are also cases where the forum spoke in favour of doctors. “A patient approached us when a nerve under his collar bone was cut. But, the case had to be dismissed. Normally, a person would not have a nerve under the collar bone. The doctors had saved his life,” Rajesh said.