Shaky hand holds the scalpel Monday, November 4, 2013
Indian Medical Association (IMA) has decided to petition the government to remove doctors from the ambit of the Consumer Protection Act. This move has come too late and should have been made a long time ago. Dragging doctors to consumer fora with increasing frequency is a trend with disturbing consequences. This is not to deny any need for accountability.
The process under the CPA is flawed and urgent remedial measures need to be made failing which private medical facilities, which fulfil bulk of healthcare needs of the country, will be forced to shut shop. Govt does not have the resources, inclination or manpower to provide universal state sponsored healthcare.
The quantum of compensation being awarded by courts today in cases of medical negligence is bordering on absurd with serious implications for medical profession and patients alike. Medical professionals have now started practicing defensive medicine. While taking medical decisions doctors have to contend with an additional factor of what the courts view will be. The hand that holds the scalpel has become shaky my lords. The sword of compensation claims of exorbitant amounts sufficient to exhaust a doctor’s lifetime (and maybe the next 7 lives’) earnings, is now hanging over every doctor’s head. With these massive compensations, no insurer will cover such a dangerous profession.
For the patients also it is not good news because for every patient who claims compensation in crores of rupees, millions of other patients will pay for his indulgence by paying extra amounts charged by doctors to cover such eventualities. Already there is a quantum jump in the average charges of various procedures all over the country following the 1995 judgment of IMA vs V P Shantha and others and this is out of proportion of the inflationary correction. Who would have thought hospitals will be charging Rs 1 lakh plus for normal delivery and I am sure with a few more compensations of crores of rupees being awarded this amount will multiply manifold.
What is more absurd is the fact that as per law there is no cap on this amount and what was unthinkable 10 years ago is now a fact and Rs 1000 crore may be unthinkable today but may become a fact, if we remain gagged, because as per law there is no cap on the amount of compensation that can be awarded by courts. (Recently, a judge asked for Rs 100 crore compensation for defamation from a news channel).
There are certain other fallacies in the case of ‘Dr Balram Prasad versus Dr Kunal Saha & others’, Supreme Court. In para 148-150 of the judgment it has been observed: “…In the case of Paschim Bengal Khet Mazdoor Samiti vs State of West Bengal, this court has already pronounced that right to health of a citizen is a fundamental right guaranteed under Article 21 of the Constitution of India. It was held in that case that all the government hospitals, nursing homes and polyclinics are liable to provide treatment to the best of their capacity to all the patients. The doctors, hospitals and nursing homes and other connected establishments are to be dealt with strictly if they are found to be negligent with patients who come to them pawning all their money with hope to live a better life with dignity… We therefore hope and trust that this decision acts as a deterrent and a reminder to those doctors, hospitals and nursing homes who do not take their responsibility seriously. The central and the state governments may consider enacting laws wherever there is absence of one for effective functioning of private hospitals and nursing homes…”
However on reading the ‘Paschim Banga Khet Mazdoor Samity versus State of West Bengal’ judgement it is clear that directions were given for Government Primary Health Centres, District and Sub Divisional Hospitals. It is stated: “… it cannot be ignored that it is the constitutional responsibility of the state to provide adequate medical services to the people… State cannot avoid its constitutional obligation in that regard on account of financial constraints.” Nowhere in this judgment are there words “Nursing Homes and Polyclinics” which have been referred to in the Dr Balram Prasad vs Dr Kunal Saha judgment. Erroneous reference to private hospitals and nursing homes has been made and based on this an enormous amount of compensation awarded against a private hospital has been justified.
Since compensation awarded is based on the earning capacity of the victim, a rich industrialist could be awarded 100s of crores of rupees as per Consumer Protection Act. Here the penalty is not commensurate with the crime whereas natural justice demands that for any crime the punishment has to be proportionate. The situation is similar in this case to saying that if you cut of the leg of a poor man with a sword you will be awarded 2 years rigorous imprisonment but if you do the same to a rich man the punishment will be rigorous imprisonment for 10 years. If an average Indian had died similarly because of TEN (toxic epidermal necrolysis) and had been given high dose Depomedrol during treatment, the compensation probably would have been less than Rs 10 lakh.
Human life cannot be valued differently. A drunk roadways driver killing 40 passengers would probably lead to compensation of measly Rs 2 lakh awarded by the Government for death of healthy individuals due to its negligence or that of its minions. Even to relate a noble profession of doctors to that of a driver is an insult in itself but for legal argument it becomes necessity. Also the persons dying due to bus accidents are healthy individuals whereas those who die allegedly as a result of medical negligence are sick who without the act done by a doctor would be more likely to die of the sickness.
During treatment of a fatal disease, the treatment given may lead to death earlier than the disease itself would have caused it. But this is the cornerstone of medicine. While handling an aneurysm it may burst causing bleeding to prevent which surgery was being done in the first place. By this argument no neurosurgeon should operate a head injury, no malignancy should be operated, no pancreatic abscess drained because in doing so death may occur. Despite actions of doctors being done in good faith unforeseen and adverse outcomes are now on the basis of res ipsa loquitur (Latin for ‘the thing itself speaks’) condemned as negligence. How is this comparable with killing or maiming normal healthy individuals either intentionally or contributing to it by negligence?
A person suffering from Toxic Epidermal Necrolysis has a 50 per cent mortality in the best of centres and much more if untreated. How then was it deduced that death was due to high dose of steroid and not because of the disease. And the negligence was of such magnitude that an unprecedented exemplary and sensational compensation needed to be ordered.
Sympathy or justice, what factors more in compensation cases for medical negligence? In the ‘Nizam Institute of Medical Sciences versus Prasanth S Dhananka & others’ judgment the victim in wheel chair was allowed in the court to plead his own case. Dr Kunal Saha also pleaded his case personally to gain sympathy of courts for award of dramatic compensations. To gain this sympathy what would be there tomorrow to stop a dead body and grieving relatives to be produced in courts to get favourable judgments. The moment a person in wheelchair was permitted to argue his own case, regarding injury suffered by him, in court, an adverse verdict for the opposite party was guaranteed.
The argument that medical negligence cases should not be decided by non-medical courts was dismissed by the honourable Supreme Court in the ‘Indian Medical Association versus V P Shantha & others’ judgement in 1995. The SC in this judgment made it clear that only outright cases of medical negligence like amputation of wrong limb, leaving swab or clamp in body, giving wrong anaesthetic gases would be covered under the Consumer Protection Act. Cases which required evidence of experts were not to be covered under the CPA. What is standard medical practice in other hospitals or by other average surgeons was also held not to be negligence. However as we see it today dose of medicine, wrong diagnosis, method of treatment, conservative vs radical surgery, extension of surgical procedure depending on intraoperative findings all have been adjudicated by consumer courts with the help of expert evidence even via video conferencing.
The honourable SC has in the judgment of ‘Nizam Institute of Medical Sciences versus Prasanth S Dhananka’ has mandated that all cases involving spine have to be operated only in the presence or with assistance of neurosurgeon. Orthopaedicians all over the country operate on spine without neurosurgeons as part of standard medical practice. Cardiothoracic surgeons while opening the chest may need to extend into the spine as happened in this case. This too may not be ideal according to the Mayo Clinic protocols but is standard medical practice in India.
In the case of ‘Samira Kohli versus Dr Prabha Manchanda’ the honourable SC opined that in a particular case while doing surgery if an additional procedure is deemed necessary, it should not be done. The patient should be allowed to come out of anaesthesia, give separate consent and later re-operated. In this case, the consent of mother, who was waiting outside the OT, for the extension of procedure was not deemed sufficient. Caesarean hysterectomies, resection anastomosis of gangrenous bowel, orchiectomy for torsion testes are all standard procedures which are extensions of original surgeries and are routinely performed.
Medical profession is unique and cannot and should not be compared with other service providers as defined in the Consumer Protection Act. As practiced in India it is nothing short of miracle and thanks to the dedication, work ethics and empathy of doctors we have cure rates similar to most developed countries for most of the diseases. Experience in surgery and various procedures is far more of Indian doctors than some of the foreign dignitaries who come to give lectures in conferences. If you wish to do specialization fellowship in Gastroenterology in USA, one of the centres for training in ERCP (endoscopic retrograde cholangiopancreatography) is in Hyderabad, India because of sheer volumes of work done here.
This is despite the fact that in India doctors have to battle and compete with Government sponsored quackery. Myths and misconceptions are deep rooted in the Indian psyche. Working in such environment would be impossible for the foreign and NRI doctors and to try to impose standards and protocols of USA in India is nothing short of absurd. If we want ideal medical treatment we have to have ideal treatment environment.
I understand my views are radical and that the Section 66A and the contempt of court is used liberally to suppress contrary views in our country. I, however, stand by my views and am willing to face consequences for the same.
Dr Neeraj Nagpal
Convenor, Medicos Legal Action Group
Ex-President, IMA Chandigarh
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