Medical negligence and medical errors are not new to India. According to a Harvard study in 2017, deaths due to medical negligence in India could be as high as five million a year compared to less than half a million in the USA.
Even if the figure is disputed, all of us who have had a brush with indifferent doctors and callous paramedics do know it well that medical negligence and errors are rampant in our country.
Private hospitals bring to bear all their money power to defend their negligence in courts and we hardly ever see anybody in government hospitals punished.
The leading judgment of the Supreme Court in the case of Jacob Mathew vs State of Punjab (2005), in any case, makes criminal prosecution of doctors very difficult.
What is new, however, is the dismissal of a government doctor from service for an alleged case of negligence, which was more administrative in character than medical and for which there is no reason to believe that a mere paediatrician alone was principally and squarely responsible!
The alleged incident of negligence had taken place over four years ago.
A Four-Years Long Inquiry
By any standards of administrative practice, there is no reason that an inquiry and decision thereon should have taken that long.
In February 2015, the Supreme Court had fixed a limit of 90-days for suspension.
Dr Kafeel was suspended in another case in 2019 for allegedly forcibly treating patients at the Bahraich District Hospital and criticising government policies. The Allahabad High Court had stayed this suspension in September 2021.
From a purely legal perspective, while the government does have the powers to order a de novo inquiry into a matter already inquired into, and also to ‘discover’ new charges, good administrative practice demands that such things be avoided to save employees from harassment.
These issues of administrative malpractices assume importance because the doctor in question is a person who was subsequently unfairly incarcerated under trumped up criminal charges.
Trumped up Criminal Charges
The doctor is named Kafeel Ahmed Khan and he was jailed first for about eight months (September 2017 to April 2018) in connection with the hospital tragedy, and then for having made an allegedly provocative speech in connection with the anti-CAA stir at Aligarh Muslim University in December 2019.
He was first booked under Section 153A IPC (promoting enmity between different groups) and later the NSA (National Security Act) was slapped to deny him bail. It was only in September 2020 that the Allahabad High Court set aside the detention under NSA.
The state government went to the Supreme Court and in December 2020, lost in appeal!
In August 2021, the Allahabad High Court quashed the entire criminal proceedings against him.
For Negligence in Government Institutions, the Government is Responsible
In a government medical college, there is no reason to believe that a paediatrician in charge of a ward alone can be held principally responsible for the availability of oxygen in the hospital. It is primarily an administrative function.
If it is alleged that the supplier had withheld the supply because his previous bills of Rs 68 lakh were pending, how could a doctor alone be responsible for that?
If there is delay in clearing the bills, the administrative staff is responsible — it is a different thing that often the institutions distribute responsibility by making many others co-signatories.
It is for them to explain whether adequate budget was available in time or was made available just before the financial year was about to end. It is for the supplier to inform and the police to investigate whether bribe was demanded for clearing the bills and that they were withheld because bribe was not paid.
For any case of medical negligence or error in a private hospital, the first liability vests with the hospital management, which charges the patient.
When a patient takes admission into a hospital, he is not told that only Dr X and paramedics A, B, C, etc. would be responsible for his care. Even if the patient has insisted and got it down in writing that his surgery would be done by a specific surgeon, the latter does not remain present 24 hours with him.
His post-operative care is entrusted to the resident duty doctors and the paramedics who would be there by some rotation system. The patient has no way of knowing their names in advance. Hence, he cannot enter into a contract with the hospital that only such and such doctors and nurses would be responsible for his post-operative care.
If some medical negligence takes place during post-operative care, the first entity he would sue would be the hospital management — if he gets to know the identities of the duty doctor and the paramedics, they can be included later.
By the same logic, as far as the parents of the 63 infants who died there are concerned, the primary liability vests with the Gorakhpur’s BRD Medical College and the entity, which owns the college, namely the state government of UP. We are not aware of the state government having assumed any responsibility in this regard. Why?
The state government cannot shrug off its responsibility by saying that they conducted an inquiry and those found guilty have been punished.
If that logic were to be accepted, the state government could continue to have a plethora of medical institutions plagued by mismanagement and corruption forever.
Every time some incident took place, they could theoretically inquire and punish individuals — but the system would never be reformed. Clearly, as far as the taxpaying public is concerned, this is not acceptable because there will never be an end to their woes.
When in cases of police atrocity or malicious prosecution, the courts order compensation, it is to be paid by the government — only rarely do they make individual police officers pay.
Politics Must Wait
Political parties and leaders, notably from the Congress, have been quick to link his trials and tribulations with his Muslim identity and the ‘hate agenda’; the fact that the high court and the Supreme Court cleared him of criminal charges amounting to a slap on the face of the government, and that the Assembly elections are near.
I would, of course, not make any such conjectures because presently we do not have enough evidence in this regard.
Dr Kafeel has also reportedly written to the UN Human Rights Commission alleging large-scale rights 'violations' and 'misuse' of stringent laws to "suppress voice of dissent" in India, but that is irrelevant here.
Responsibilities Must be Fixed Fairly and Punishments Given Evenly
I could not get any official confirmation but Dr Kafeel claims that while eight doctors and other employees were suspended, only he was punished and all others were reinstated.
He also says that after the first inquiry gave him a clean chit; the government ordered a fresh inquiry in October 2019 claiming that the first inquiry had not taken some facts into account. He says that he had challenged this second inquiry in the high court and the next date of hearing was fixed for 7 December.
However, the government dismissed him. The Principal Secretary (Medical Education) has said that detailed information about Khan's dismissal would be given in court. Apparently, his alleged private practice is also taken into account.
Even if it is proved to the satisfaction of the court that he had a share of responsibility in the oxygen crisis, it was only a share of responsibility. One could not be dismissed for that while others got away scot-free.
Having been in the government for 35 years and being thoroughly conversant with the rules pertaining to disciplinary proceedings, I find the dismissal of Dr Kafeel Ahmed Khan curious, in fact very curious to say the least.
There are reasons to suspect the intentions of the government because he was earlier harassed greatly on trumped up criminal charges. Had there been no such history, probably we could have given benefit of doubt to the government.
He had to fight a long legal battle to get justice from the high court for that. Now, he will be obliged to fight an equally long and arduous legal battle against the dismissal order. This is indeed deeply worrisome.
(Dr NC Asthana, a retired IPS officer, has been DGP Kerala. Amongst his 49 books, he is also the author of ‘State Persecution of Minorities and Underprivileged in India’ and ‘Why Rapes: India’s New Epidemic’. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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