The Rhetoric of the ‘Passive Patient’ in Indian Medical Negligence Cases

Abstract

In this paper, I examine the rhetoric employed by court judgements, with a particular emphasis on the narrative construct of the 'passive patient'. This construction advances and reinforces paternalistic values, which have scant regard for the patients' preferences, values, or choices within the legal context. Further, I critique the rhetoric employed and argue that the use of this rhetoric is the basis for a precedent that limits the understanding and respect of patients. Through this paper, I present the contemporary use of the 'passive patient' construct in the context of the Indian legal system and describe how such constructions have become a source of normative justification for legal reasoning that jeopardizes the patient's agency. I argue for the primacy of 'respect for persons' within Indian law and the need to treat each patient as a person who has agency, preferences, and values during clinical interactions. I conclude by suggesting that laws that adopt narratives that acknowledging the significance of patient engagement and the relevance of effective communication during clinical encounters would help cultivate a culture of patient-centred care, by moving beyond the rhetoric of 'passive patient' and the 'health/choice' dichotomy.

Exploring the Influence of Decisionmaking Style and Financial Status of Cancer Patients on Varied Cultural Aspects of Decision Process

“…However, there was no significant difference between the two groups for the factor of chance or luck. Factors such as low knowledge and awareness among patients belonging to low financial status (Sahu et al, 2020; Singh et al, 2016), reduced agency in choosing healthcare facilities (Ram Prakash & Lingam, 2021) and a high reliance on doctors’ authority (Bhakuni, 2020; Subramani, 2019) could probably explain such an external locus of control—wherein god and doctors are attributed higher decision responsibility than patients and family caregivers.…”

“…Though there are many studies that have linked such decisions with positive patient outcomes and patient satisfaction (Entwistle et al, 2012; Gillman & Ferrer, 2021; Sankar et al, 2018), there is less research on the practicality and feasibility of such an approach (Ozdemir & Finkelstein, 2018), specifically, in India (Gopichandran, 2019; Sankar et al, 2018). There are certain unique aspects that define doctor–patient relationship in India, such as reverence towards authority (Panda, 2023; Subramani, 2019), paternalistic family dynamics (where often the decision-maker is the head of the family) (Gopichandran, 2019; Subramani, 2019), lower agency of female patients than their male counterparts (Bhakuni, 2020; Gopichandran, 2019), power distance between doctors and patients (Jacob, 2014), substantially low levels of cancer awareness among public (Chandra et al, 1998), among others. Research exploring how doctors and patients communicate to reach shared and informed decisions during the treatment process given such conditions is conspicuously deficient (Bhakuni, 2020; Gopichandran, 2019; Panda, 2023; Sankar et al, 2018).…”