With Great Power Comes Great Accountability

Where should the line between 'doctors should be held accountable for medical malpractice' and 'doctors are humans and they can make mistakes' be? [Source]

There is a world where this dichotomy/binary is not entirely false - medical negligence/malpractice jurisdiction. And the courts in such cases have a very nuanced approach to this question. For example, here is what the consumer court says:

What is medical negligence?
Negligence is simply the failure to exercise due care. It occurs when a doctor fails to perform to the standards of his or her profession. The three ingredients of negligence are as follows: 1. The defendant owes a duty of care to the plaintiff. 2. The defendant has breached this duty of care. 3. The plaintiff has suffered an injury due to this breach.

What is medical malpractice?
A medical malpractice is a claim of negligence committed by a professional health care provider -- such as a doctor, nurse, dentist, technician, hospital or hospital worker -- whose treatment of a patient departs from a standard of care met by those with similar training and experience, resulting in harm to a patient or patients.

Does someone who is not satisfied with the results of their surgery have viable medical negligence claim?
In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not necessarily mean negligence has occurred. To succeed in a medical negligence case, a consumer has to show an injury or damages that resulted from the doctor's deviation from the standard of care applicable to the procedure.

These are intentionally vague about what the "standard of care" is supposed to be. Because it would be very unwise to define that in law. The only people who can reasonably inform a court whether a particular care delivered is standard or sub-standard is a group of experts (a group of doctors practicing that kind of care). That's a double edged sword though.

Because, for one, it puts doctors at an advantage. It is their own kind who will decide and therefore there is a conflict of interest in the design of the system itself. But on the other hand, this system can ensure that every case is judged through a medical practitioner's gaze rather than through an outsider's gaze.

When it comes to practice, there are a few imperfections in the system.

1) Doctors are sometimes the worst allies of other doctors. In many negligence cases, the group of doctors who inform the court on whether the standards of care have been met or not, intentionally raises the standard of care (with the benefit of hindsight). This has disastrous consequences for the doctor involved in litigation.

2) It is difficult to navigate the legal system. The consumer court is the best place for patients to approach in the case of medical negligence issues because the patient is the favored litigant in consumer courts. These courts exist for the consumer and by default take their side. The other fora - medical council and criminal courts - are places where it is very difficult for a patient to win. And that would explain the low number of cases registered in such fora. I couldn't find official statistics in consumer court websites, but a researcher claims that there were 3241 cases registered in consumer courts throughout India in 2018, and 2638 cases in 2019. I would think those numbers are true - yet they are very very low.

But it would be a great mistake to rely on the legal system to improve healthcare. Law should often be the last resort to many complex social issues - because it is very difficult to get the law right in such situations. And case-by-case approach like in medical negligence above puts great stress on the legal system (if there are enough number of cases) which in turn leads to bad outcomes for whoever gets tangled in a case.

For example, there are ethical issues where taking a side is not straightforward. Take the case of Ayurveda prescriptions by modern medicine practitioners. There are doctors who think that whatever satisfies a patient's goals about their health is medicine. But there are doctors who would rather let the patient suffer than give up their ego regarding "evidence". And then there are doctors who think that anything modern medicine throws up is evidence based and prescribe mercilessly.

These are fundamentally hard ethical conundrums. Do you take every doctor who doesn't agree with your way of thinking to the court? That'd be a good way to waste your life.

There are solutions which work out much faster. Outside the courts.

One is activism. Activism is where you constantly make noise and draw attention towards a particular cause. You can be as creative as you want. You can use various tools. But the end goal is that people start caring about your cause. This is political. And there will be lots of political opposition too. In issues where one side is completely non-existent, activism has very big impact in putting that side up as an equal cause. For example, in today's India, patient rights is something that's rarely discussed in healthcare. And activism on that is probably very helpful.

Then there is frank politics. This is the kind where you influence an MP who's kind towards your cause to raise the issue in Parliament or in the public sphere. Basically, politicizing an issue. Inviting the opposition leader to a protest is the sure-shot way to politicize something.

Journalism works too. Journalism is kind of like activism in this case. But the advantage with journalism is that it is perceived more like research than like activism. There is a "truth" value to journalism. A lot of people consume journalism and take it to be "truth" by default. Propaganda in such spaces is very effective on such people.

Research is another option. This gives an academic clothing to your advocacy. It legitimizes every other method by making them more "scientific". Research takes considerable amount of investment, but if you are dedicated to one particular topic, you may as well wear this garb.

There are probably many other things one can do to improve healthcare from outside courts. But these are just examples to show that we need not rely on courts/law for this.

What should these methods of advocacy take up as their cause? I think a focus on accountability is a good thing. And by accountability, I do not mean a system where a scapegoat is found and suspended.

Let me describe accountability with an example. In VMH, we used to do mortality meets. We meet, with all the relevant people present. We take deaths which happened after the last meeting. There is a person who leads the meet who would have identified a few cases where there is something critically wrong with the care delivered. The participants then discuss various concerns related to how that came about. They then find and fix critical issues in the system which contributes to the problem. Trainings on specific topics get scheduled, devices are bought or fixed, staff pattern is changed, physical layout of the hospital is changed, triage system is changed, ... anything and everything that can be changed for a better outcome in the next patient is identified and possibly changed.

Where is the accountability in this? The accountability is in a group of people who think it is the responsible thing to do to conduct a mortality meet. When they are working towards fixing the systemic problems. When they hold themselves responsible and do everything in their power to change things. That's accountability.

Lack of accountability is best demonstrated by the RTI responses of our government regarding COVID management. Wherever the government has said "we do not have the data" they are showing exemplary lack of accountability. That it is okay to say "we do not have the data" means that they assume no accountability of what is going on. That it is okay to blame someone else is the hallmark of lack of accountability. When someone takes accountability, they say "I have done this, this, and this, and I'm waiting for this, this and this." When someone doesn't take accountability they say "But my hands are tied."

Advocacy should be aimed at bringing in accountability in all parts of the healthcare system. Education, governance, administration, healthcare delivery, etc.

Who should do such advocacy? Who should be responsible for healthcare system in India? I have written about it previously.

Sure, change is slow. Some work requires generations. But, we can't not do what we should be doing, right? We should start by holding ourselves accountable, by asking us what we can do and what we are doing. That'll give us greater courage in asking others to be accountable.