Cesarean Operation v. Normal Delivery: Close Call, But whose Call?

Over the years, I have had this conversation with my girl friends, my sister, my mother and my aunt's. We have debated at length the benefits of a Cesarean versus a normal delivery concluding that  most of the time a Cesarean is more of a commercial call than a health related call. This is so, because hospitals make more money in a surgery as opposed to a normal delivery. The post-birth care of the mother after a surgery adds to the revenue of the hospital. There have been times of course, where surgery was the only way forward - that's in cases where the baby's position has changed completely or is reversed (that is head down). But, honestly - these discussions have never ended with a firm answer of how to decide the best way forward? Another, more critical question is - Who's call should it be? Is the parents, the father, the mother, family member or all of them collectively OR only the gynaecologists? Yet again, can the gynaecologist tell with certainty? Will opinions not vary? If they do, should the gynacologists be involved at all in the decision making. 

The recent decision of the Bombay Consumer Dispute Redressal Forum has probably attempted to resolve the issue, but to my understanding only complicated things. The court in my opinion, while granting the appropriate remedy pinned the causation to be the use of normal delivery over a cesarean, which is grossly incorrect. The Consumer Disputes Redressal Forum has fined two gynaecologists to pay Rs 10 lakh towards compensation and Rs 1.25 lakh towards medical expenses and Rs 1.90 lakh towards mental agony and harassment to a couple whose baby was rendered disabled due to the negligence caused by the doctors before and after the baby was born. 

The facts are as follows:- The said case involved a lady who visited the first gynaecologists during the 7th month of her pregnancy. She was informed that the head of the baby is on the upper side, which would require the nurses to use a vacuum to extract forcibly the baby out forcibly. The new born was unable to cry and the doctor decided to keep her in a ventilator. It was found that the oxygen cylinder supplied to the baby in the incubator was empty.  The cylinder was replaced after 30 minutes, until then the baby was gasping for breath and landed in a dangerous condition. It is this process, it was established that the brain of the baby got damaged. The couple then shifted her to another nursing home in the evening. The baby got serious during the nights on two occasions. The oxygen was supplied for 10 days and on 11th day the baby started breathing naturally. Thereafter, the baby was put through several tests and it was concluded that the brain of the child was heavily damaged.  As time passed, there was no significant growth of the baby, she was unable to take milk, water and medicines and was not gaining body weight. After having put the baby to additional tests it was declared that she was having Delayed Milestone and Cerebral Palsy rendering her as a disabled child. She was suffering from physical as well as mental retardation and her vision was impaired.  The couple believed that if a cesarean operation was done for the delivery, the baby would have been delivered on time and all the complications would not have arisen.

The president, M Y Mankar, of the The Consumer Disputes Redressal Forum called upon to determine the liability of both the doctors under whose observation the baby was kept. The forum directed the doctors to pay the said amount for the vegetative life of the baby girl. 

In the given events, I believe that it was not the vacuum that caused the damage to the baby but was the lack of oxygen that led to the vegetative state. Like we know, this area of law is the most grey among others, I fail to pin in black and white - the right and wrong in the foregoing events. 

How they look at Medical Malpractice in the UAE: Errors, Diya and Arsh

In the UAE, the standards to be observed by medical practitioners are specifically outlined in the Medical Liability Law issued on 16 December 2008, which makes it compulsory for all institutions providing healthcare services to have malpractice insurance. The Medical Liability Law and its Regulations are wide ranging and contain provisions that apply not only to liability for medical errors, but also deal with doctors’ responsibilities, mandatory procurement of insurance, the investigation and disciplinary process in circumstances of alleged malpractice and penalties for violation of the law. In light of these recent legislative and regulatory developments, and with an increasing focus on regulation and reforms by local health authorities, there is evidence of a more litigious approach developing in the area of medical malpractice. Damages awards which have historically been low, are now on an upwards trend.

The legislative basis for medical liability claims

The doctor/patient relationship is recognised by UAE law as a contract whereby the doctor undertakes to treat the patient and, consequently, medical negligence claims can be brought on the grounds of breach of contract due to the doctor failing to provide due care and attention and thereby breaching his obligations to provide a level of service that could have been expected at the time of contracting. Claims can also be brought under the UAE equivalent of tort, which requires ‘acts causing harm’ to be made good, in the form of damages.

The Medical Liability Law now specifically provides that doctors will be liable in the event they commit a “medical error”, which in broad terms is regarded as being a deviation from what a competent practitioner would have done in similar circumstances.

The definition of a “medical error” is set out in article 14 of the Medical Liability Law. Article 14 provides that a medical error “is an error occurring due to lack of knowledge in the technical matters customary in the profession or due to negligence or not paying due attention.”

At a most basic level the Medical Liability Law requires three elements to be proved in order to find liability. These elements are: (a) a “medical error” that (b) causes damage to the claimant and that (c) as result of such damage the Claimant suffers a loss.

Under the UAE Civil Code there is also a general theory of tort / delict in that a person who commits a “harm” will be responsible for the loss caused by the said “harm” whether for personal injury or damage to property. It is therefore not uncommon to see claimants relying on tortious / delictual principles, rather than a contractual basis for claims or specific provisions of the Medical Liability Law, when commencing proceedings, which would be more specific to these types of claims. For claims based on tort / delict the preconditions to awarding compensation are fault, damage, and a causal link between the fault and damage. UAE Courts do not place as much weight on issues of causation as other jurisdictions do. It is often sufficient to show that fault and damage has occurred.

Litigation culture in the UAE and the Court’s approach to awarding damages

When assessing a Claimant’s case for loss, a court will in the first instance award damages for material and emotional damage. The difficulty is, however, that when assessing damages the court is not bound by any specific formula and method of calculation. The courts are also not bound by precedent and, in the circumstances; it is often difficult to accurately assess a defendant’s likely exposure to an adverse finding.

Historically, the level of damages awarded has also been influenced by the statutory Diya and Arsh levels. Diya (literally ‘blood money’) refers to the level of damages prescribed for wrongful death; Arsh is the level of damages (typically expressed as a percentage of Diya) which are prescribed for bodily injury.

 Damages for Diya and Arsh are required to be based on a finding of fault usually established by way of criminal prosecution (although in instances we have seen civil courts apply such principles too). An individual or organisation found to be criminally liable for the death of a person will be punished by the court ordering it to pay Diya to the beneficiary of the deceased. The amount of the payment is presently set by statute and is AED 200,000. Arsh is similarly payable based on the loss of a specific body part with the amount payable for such a part being prescribed by law. The award of Diya and Arsh ought to have no impact on the value of damages claimed in a civil claim, but the manner in which litigation has been conducted in the past has tended to ensure these are linked.

Unfortunately, as judgments are not published, it is difficult to accurately gauge trends in awards. Although larger awards are starting to be seen, from our experience the UAE courts are still far more conservative in awarding damages than may be the case in more developed jurisdictions. Until 2012, the largest award we were aware of was for AED 3 million awarded by the Abu Dhabi Courts to the family of a woman who was left in a permanent vegetative state following treatment.

In recent years regulators have taken a very strict line with healthcare practitioners following patient complaints. The effect is that claimants are often assisted in their court actions by the regulators already having made a finding regarding conduct on the basis of such a patient complaint. The lack of uncertainty regarding damages and the uncertainty connected with the regulator’s investigations, including the outcome means that there is a greater litigation risk here compared with other regions. On balance however, awards here have normally been lower, when compared with other jurisdictions.

POEM ON MEDICAL NEGLIGENCE

A VISIT TO PARK ON SUNDAY

It was Sunday and we went to park,

It was sunny we were happy and gay,

On the swings, on the slide, we spent our day,

Just when we were about to leave, we saw a mark.

Oh! Sam had had a mighty fall.

The mark was big, red and had little blisters,

It was on the forehead and left forearm

Couldn't figure out what it was, was a total twister

We rushed to the nearest clinic as it had left us all alarmed!

Oh! Sam had had a mighty fall.

In the doctor’s clinic - we signed our way in,

Consented to death and dangers therein,

A pretty nurse escorted us to the Doctor’s cabin,

In the meanwhile, the mark has become more raven.

We demanded that we should hurry,
The nurse said, not to worry,

Oh! Sam had had a mighty fall.

The Doctor looked at the mark and smiled,

It’s nothing, don’t worry my child.

Sam looked pained as he spoke

Doctor, I think it’s serious. Are you sure?

Oh! Poor Sam had had a painful fall.

The Doctor said you will be fine,

Take this medicine just before you dine.

Don’t forget to put this balm,

After which, don’t forget to wash your palm.

Sam took the medicine/balm and off we went,

At home, we did as the Doctor had meant.

Oh! Sam had had a mighty fall.

Within 24 hours, the forearm and forehead changed colour and shape,

We rushed Sam to the same doctor again,

With his forehead and forearm covered in a drape,

The Doctor examined him again, 
This time he demanded some tests 
After which, he confirmed that its not what it looked like, 
And asked Sam to be taken in for bed rest. 

With a deep voice he said, 
We’ll have to severe your forearm and surgery your forehead,

It’ll be fine. Don’t worry. You won’t dread,

Oh! Sam had had a mighty fall.

Sam consented his way in for a surgery, 
The surgery lasted a few hours, the tension way too long,

We prepared ourselves for a Sam without an arm,

We sat together, held hands and hummed prayer songs,

The operation door opened and closed,

The nurse came to us, said nothing and put the results on hold. 

Oh! Sam had had a terrible fall.

A few hours later, the doctor appeared,

He looked sorry and a voice was heard, oh! Dear.

He said he tried but too much damage had been caused,

The loss of blood and multiple surgeries topped it all,

He consoled us and walked away,

We stood there with Sam’s dead body in the clinics doorway.

Oh! Sam died because of the mighty fall?

A few days later, the doctor got a notice,

‘Medical Negligence’ was written all over it.

It said you had a duty of care,

You breached it and treated Sam without any care,

It was topped with Negligence because the Doctor did inappropriate tests,

He relied on his knowledge to suggest balms, medicines and rests.

Whereas another competent doctor tell us,

It was a case of bee sting on Sam’s forehead and forearm,
Had the doctor known, Same would have been living along. 

Oh! Poor Sam never had a might fall. It was a bee and we were never told. 

The courts decided to pay compensation to us,

They said, we find the doctor’s conduct not up to the standard.

We got the money but we lost Sam.

The following Sunday, we went to another park, without Sam.

Oh! Sam will no more have a bee sting him or have a mighty fall. 

Rimali Batra

DEMANDING DEATH WITH DIGNITY

Once again, the Supreme Court gives right to die with dignity a chance to be a fundamental right. The ink on the judgments of Gian Kaur vs. State of Punjab reported as (1996) 2 SCC 648 and Aruna Ramchandra Shanbaug vs. Union of India reported as (2011) 4 SCC 454 may have dried out but the issue of ‘right to die with dignity’ remains unsettled.  A writ petition under Article 32 of the Constitution of India was filed by Common Cause (A Regd. Society) in 2005. The Supreme Court admitted the case and directed that a constitution bench be constituted for deciding the issue, reported on 25^th February 2014.

The writ was filed to seek a declaration that ‘right to die with dignity’ is a fundamental right within the fold of ‘right to live with dignity’. The Petitioner sort the adoption of a suitable procedure for executing a document called, ‘my living will and attorney authorisation’ which can be presented to hospital for appropriate action in the event of the executant being admitted to the hospital with serious illness is not in a position to give consent to the treatment. Alternatively, the court should issue detailed guidelines for the exercise of the ‘right to die with dignity’ effectively.

THE PREMISE OF THE DISPUTE

As per the Hippocratic Oath, the primary duty of every doctor is to save lives of patients. Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 explicitly prohibits doctors from practicing Euthanasia. Regulation 6.7 reads as follows:-

“Practicing euthanasia shall constitute unethical conduct. However, on specific occasion, the question of withdrawing supporting devices to sustain cardiopulmonary function even after brain death, shall be decided only by a team of doctors and not merely by the treating physician alone. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer/Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.”

In the case of Parmanand Katara vs. Union of India reported as (1989) 4 SCC 286, the Supreme Court emphasised that the primary duty of doctors is to provide treatment and to save the life whenever an injured person is brought to the hospital or clinic and not otherwise.

Whereas, in the case of Aruna Ramchandra Shanbaug, it was observed that the doctors cannot, by some active means/action/interjection like giving lethal injections end the life of a patient because this would amount to “active euthanasia” which is penalised in India. 

In Gian Kaur, the interpretation of Article 21 relating to the constitutional validity of Sections 306 and 309 of the Indian Penal Code, 1860, was in question.  It was held that ‘right to life’ under Article 21 does not include ‘right to die’. While affirming the above view, the Constitution Bench observed that ‘right to live with dignity’ includes ‘right to die with dignity’ in the following words:-

“The 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the 'right to die' an unnatural death curtailing the natural span of life.”

But, the constitution bench did not express any binding view on the subject of euthanasia rather reiterated that legislature would be the appropriate authority to bring the change. Therefore, it was the Petitioner’s contention, in the present case is that Regulation 6.7 should be read to mean, prohibition on active euthanasia. The regulation could not be interpreted in a manner which casts an obligation on doctors to keep providing treatment to a person who has already expressed a desire not to have any life prolonging measure. (Emphasis Added)

PRESENT STATUS

In the light of the above discussion, it is clear that although the Constitution Bench in Gian Kaur (supra) upheld that the ‘right to live with dignity’ under Article 21 will be inclusive of ‘right to die with dignity’, the decision does not arrive at a conclusion for validity of euthanasia be it active or passive.

So, the only judgment that holds the field in regard to euthanasia in India is Aruna Shanbaug (supra), which upholds the validity of passive euthanasia and lays down an elaborate procedure for executing the same on the wrong premise that the Constitution Bench in Gian Kaur (supra) had upheld the same.

In view of the inconsistent opinions rendered in Aruna Shanbaug (supra) and also considering the important question of law involved which needs to be reflected in the light of social, legal, medical and constitutional perspective, the Supreme Court in the present petition thought it be extremely important to have a clear enunciation of law.

Thus, for finding an answer to the question of law involved, the Supreme Court has constituted a Constitution Bench for settling the issue and ofcourse, for the benefit of humanity as a whole.

Rimali Batra

CONSENT IN ORGAN DONATION

Introduction

Last week, in Mumbai, a father who lost her teenage daughter in a deadly car accident decided to donate her organs to the Nanavati Hospital after he spoke to the counsellor at the hospital.  Donation included kidneys, liver and skin from the back and thighs.

In the wake of increasing demand for organs and transplant surgery’s _ the act of the father is indeed emotionally brave and medically & socially appreciable. One does tend to categorise such an act as being medically and socially important because the act of donation of organs in India is still viewed from the microscope of religious and cultural reasons.

The incident narrated above invites a discussion around various legal, moral and medical issues. To be able to appreciate all would not be possible in the given word space. I therefore choose to critically discuss one of the most important issues arising from a combination of these issues. The issue is whether the father has any right in the body of the dead teenage daughter to entitle him to make a decision with respect to his daughter’s organ donation. Medically the act is much appreciated and legally much questioned. Legally speaking – the act arouse a controversy around – who is entitled to donate whose organ? Can family members, including spouses, donate each other’s organs? (Reference: donation after death only).

Organ Donation

Even though, science applauds donations from a cadaver as it proves to be of great help to someone in need of those organs, religious and cultural reasons de-motivate such decisions in India.  This raises two very pertinent issues. One, whether the cultural and religious reasons are hindrances in the growth of science and medical research and two, whether the religious and cultural reasons out – weigh the moral and somewhat-religious duty to help and save human life.

Imperial studies reveal that 500 (lucky people) out of 20000 (needy people) get a liver transplant in India.  These surgeries are carried out by the Zonal Transplant Committee which is not a profit making organisation. It helps in the distribution of organs from cadavers in Maharashtra. The purpose of the committee rests in moral idea of saving lives of people in need of organs. Though by merely allocating the organs one cannot ensure that these organs are being given to the patients in absolute and dire need of the organ over the ones who could afford the surgery. This poses the issue of rationing of the recourses appropriately. Though no straight jacket formula or policy could be devised to conclude what form of allocation and use is appropriate but a basic level interference by the government dictating the terms of use of the limited donated organs could assisting in boosting appropriate supply.

Evidence shows that there is a growing demand for organs in the medicine world as well. Demand for liver has been recorded at 1900 and demand for kidney at 2000. Even in the wake of these figures the awareness of organ donation among people is bleak.  And hence, awareness campaigns, like the one’s run for eye donation could prove as a useful tool to increase number of donors – cadavers.

Consent to Donate: Autonomous

The question of who has a right to decide what is to be done with one’s body invites a discussion on ‘autonomy’. The right to exercise autonomy gives an individual the right to exercise his liberty in respect of what he wishes to do with his life and body. But one can always ask – if the exercise of autonomy is relational in nature _ that is if our decisions of life are based on considerations of relationships we share with other people. For instance – A women’s decision to terminate may be driven by her husband’s will as well – thought her right to autonomy (on paper) will hands down trump the relational approach (parent’s deciding) of autonomy. But that seldom happens. Hence, how far can we stretch the idea of relational autonomy to allow relations taking decisions that involve donating organs?

Do organs give any sort of right to the individual who possess them? Clearly not in cases where there is no external interference. And also not in cases where there is intervention (like in cases of surgery) and interference (like in case of battery – assault – rape etc) with consent.

Hence – we are left with cases where donation of organs is without the consent of the person whose organs are being donated (for reasons of being dead and there being no advance directive with respect to his will) by a relative?

Consent of kith and kin: medically sound, legally questionable

Firstly, as always, morally speaking it is not incorrect if your spouse decided to donate your body part after you died? But will it be incorrect, if he did it for money? Socialist would shout – ‘that isn’t donation – that’s a commercial sale of organs for money’. Is that bad?  The act is the same _ donating organs, so then how does the motive of making money make it bad? There is no harm in encouraging donation for a token of money (like we encourage humans to be a part of medical research for monetary benefits) but then I fear to deal with regulating prices in ‘organ market’ given that family members would be motivated to sell the organs of their relatives.

A relative with an s will be a plural word. Let’s narrow it down. Who are the relatives we can really bestow the entitlement on? If we were to consider organs as property of the dead – the Laws of Inheritance in India would hold the spouse on top, followed by children of the dead and then the first family of the dead – and in case of unmarried people – their family. This seems simple! The problem arises where we do not consider organs as property of the dead – rather organs as being everything but property. In that case no one – but only the dead should be allowed to decide what is to be done with his body organs. That is of course - not possible.

Hence, the baton of deciding the course of things is to be handed over to someone. The state and the government have given us laws that encourage organ donation – which means the act is a sanctioned one and not illegal. The medical counsellors – like the one in Nanawati Hospital carry out their duty to talk to the relatives of the dead for convincing them for organ donation (This is after they have seen and analysed the corpus and conclude the potential of the organs being useful). And finally the decision making is left to the relative of the dead. This seems to be an established channel of consent for organ donation. I am just sceptical about the interference of the mother of these daughters – who may object to the consent given by the father.