How doctors reacted when first confronted with the idea of being taken to task by consumer courts
It was about a dozen years ago that the National Consumer Disputes Redressal Commission made it’s landmark judgement to bring doctors under the Consumer Disputes Forum. It was a judgement very much needed as our legal processes were (and still are) excruciatingly slow…but the doctors hated it.
I wrote an article for the Times of India (Bangalore) immediately after this new rule came into effect and talked to several doctors. Almost all of them voiced their discomfort about the idea of being made accountable for their ‘mistakes’. One doctor was so outraged in fact that he believed that the idea would not stand the test of time. In fact it was shocking, but later the Indian Medical Association actually (thankfully unsuccessfully) actually campaigned against the inclusion of medical services under the consumer protection act on the grounds that medical services could not be equated with other consumer transactions. Thankfully they did not succeed. The article which I have reproduced here shows the reactions of doctors when the ruling was first announced.
I have reproduced the article exactly as it was published in TOI (Bangalore) with some minor corrections:
The recent landmark ruling of the National Consumer Disputes Redressal Commission has clearly made doctors in Bangalore uneasy. It is easy to see why. Hereafter, doctors and hospitals – many of whom have in the past got away with blunders with the patient having to pay for it dearly – will be accountable to the consumer disputes agencies.
Doctors resigned to the move, but some feel it will all fizzle out
Most doctors are reluctant to talk openly about the matter. What many doctors don’t deny, however, is the inevitability of such a move. As Dr. K.R. Murthy, one of Bangalore’s top ophthalmologists who practices at the Prabha Eye Clinic in Jayanagar says, ‘ This ruling came about as the legal process in the country takes years to resolve even simple disputes. Also, the medical bodies, supposedly the watchdogs of the medical profession are not effective. In principle it is an excellent thing – to make doctors accountable for their mistakes.” Yet, he is hesitant to support the ruling of the consumer forum, one that implies that a non-medical person will sit in judgment of medical cases. “It would have been better to make the Karnataka Medical Council (KMC) sit jointly with the consumer court,’ he says.
Dr. S Baliga, a noted ENT specialist at St. Philomena’s Hospital and Amarjyoti Nursing Home, admits that a few black sheep have ruined the reputation of doctors, forcing the consumer forum to come up with such moves. But he too disagrees with the ruling. ‘Doctors are not traders,’ he protests, ‘and as such as they should definitely not come under the purview of consumer courts.’
However, Dr. Stanley John, a cardiologist at Manipal Hospital, thinks otherwise. He says he is not against the ruling in principle as he feels that ‘doctors should own up and pay for their mistakes.’ He adds that ‘the standards of this noble profession have declined, and so the ruling is a positive step in the right direction.’ At the same time, he is doubtful whether consumer courts will be able to pass fair judgments on doctors without adequate representation from all sides.
Dr. N Bhat, a gastroenterologist at the Whitehouse Clinic on St. Mark’s Road, feels that this arrangement (where laymen are being allowed to decide medical cases) is going to fizzle out soon. ‘Already there is a controversy regarding this matter and there is a word that the government will relent by agreeing to appoint a medical person on the jury of a consumer court,’ he says.
The general feeling clearly is one of indignation. Surgeons are angry and vehemently opposed to the new ruling. Says one of Bangalore’s very successful surgeons, ‘ Ultimately it will be the patient who will suffer with cost of medical care going up and doctors refusing to tackle complicated cases.’ He himself prefers middle-class patients, he says, because they still have faith in their doctors.
But doctors often confuse trust and faith with ignorance
Like in most walks of life, corruption has made it’s foray into medicine too The rampant commercialisation is not restricted to the metros or even to other professions. Today, some big hospitals in the city openly advertise their services, though advertising in this profession in unethical. One is also familiar with the commission some doctors receive on recommending a patient to a particular hospital. There are also cases of a doctors nexus where doctors recommend a plethora of unnecessary tests to make more money. Also, they are giving less time to their patients. In the race by some doctors to make a fast buck, the doctor patient relationship has tended to become impersonal.
Docs usually stick together
Despite all this, doctors not only go out of their way to protect other doctors in case of mishaps, but are also defensive when there is talk of malpractices as common in the field of medicine as in any other profession. This is what makes it necessary for outside agencies to step in to protect the patient, specially in a country like India where education levels are low and there is poverty. People have no money to file cases. What a patient needs is speedy justice without cost of legal complications. And that is exactly what the consumer courts promise to deliver. The attempt will be to ensure justice, and not persecute doctors.
There were always other ways to persecute docs
All this, however does not mean that it was impossible to persecute a doctor earlier. In fact, there are various Acts under which doctors can sued, through the legal machinery like the Indian Penal Code, the Dangerous Drugs Act, the Narcotics Act Drugs and Psychotropic Substances Act, the Medical Termination of Pregnancy Act and various other enactments, besides the general court laws. The doctor’s liability can be civil or criminal depending on the nature of the offence and circumstances under which it is committed. For example, if the doctor risks the life of a patient by a rash and negligent act, he is liable to punished under Section 304 A of the Indian Penal Code. Cases like leaving surgical instruments behind in the patient’s body during an operation fall under this category.
A civil suit can be filed against a doctor if some harm is caused to the patient, like administering penicillin without first testing to see if the patient is allergic (penicillin allergy can be fatal). The injury causes to a patient due to such reasons, and therefore proof of the doctor’s mistake, in a civil suit, is easy to point out.
The kind of damages which can be claimed by the injured party are of two kinds: pecuniary for actual monetary losses like expenses on treatment or loss of earnings, and non-pecuniary, which are awarded for loss or for pain and suffering caused by wrong treatment.
Proving malpractice against a doctor is tough
Yet, it is not at all easy to prove a case against a doctor and doctors know it. Dr. (Capt) BC Rao, a family physician in Indiranager, who has authored several articles on related subjects in medical journals, says that it is “difficult to prove malpractice as not all doctors keep written records, and records in some hospitals and private clinics can easily be doctored.’ Dr. KR Murthy also endorses the view that it is difficult to prove malpractice. ‘With so many different schools of thought on various medical problems, it becomes almost impossible to prove that a particular line of treatment is wrong.’
Not that this makes the doctors breathe any easy. Even if malpractice or criminal culpability is not proved, the court case can ruin a doctors’ reputation.
However, few accusations by patients materialise into full blown court cases. One top surgeon in the city admits to receiving half a dozen lawyer notices, which he says means nothing! ‘It does not worry me at all,’ he says, ‘because it does not mean that I am guilty. What I do is make a not of all the accusations in detail and justify my actions. Then I tell them that they are welcome to take me to court and so far none have!’
Docs are protecting themselves with insurance
‘Nevertheless, doctors are not talking any chances. They are protecting themselves with the medical personal indemnity insurance. And medical insurance policies can cover an amazingly broad range of possibilities, except for criminal negligence and rape by doctors.
As for the insurance companies, they are bound to hike their rates if they find that the consumer courts deliver effective judgments, as a divisional manage of United India Insurance confirms. At present (he says) the rates are Rs 2/- per Rs 1000/- approx, depending on the doctor’s qualifications, experience and additional duties. Doctors are able to insure themselves for extraordinarily high rates, though the range of Rs 5-7 lakhs (now more than doubled in 2007) is common.
Consent Forms are a form of protection for doctors
Consent forms are another method which doctors and hospitals use to protect themselves. This involves a standard procedure. However, after this ruling, many doctors and hospitals have changed these forms, making them more elaborate and comprehensive. Doctors in Bangalore, though not organised like in Mumbai, plan to take some collective action. Individually, many doctors have re-worded their forms. As the doctor can be sued even if the patient has signed the consent form (he can claim that the never understood what he was signing) the doctors usually personally explain to the patient the possible consequences of the treatment. ‘Soon, it will become like it is in the US,’ says Dr. Murthy, ‘use tape recorders and also make the patients signs a statement saying that they have understood what they have read in a consent form.’
It’s a different world in the US
In the US, not only are doctors sued frequently, patients regularly take second and third opinions and change their doctors often. They can easily be hauled to court and convicted too, far more easily than their counterparts in India. The medical bodies in the US are extremely strict watchdogs. All of which has made medical care in the US of a very high quality and very expensive too.
The medical profession and medical standards will change here too
The new ruling will alter the situation here. The patients stand to benefit a great deal. Dr. Vidyasagar, a neuro-surgeon who works at the Bangalore and the Apollo Mallya Hospitals agrees. ‘With the perceptible drop in the standard of medical ethics, something like this was long overdue, to raise the standard again.’ He also believes that doctors have invited this ruling upon themselves. ‘they have laid themselves open to such treatment (to be treated like traders) by practicing unethical medicine.’ In other words like behaving like unethical traders! Dr Vidyasagar continues, ‘If the standards in any profession fall, somebody else has to step in to set things right.’ He feels that if the doctors are against consumer courts interfering, they could form a medical ethics committee which can closely monitor the doctors without bias or indulging in corruption. The Bangalore Surgical Society (of which Dr. Vidyasagar is vice-president) has now planned a training programme to impart medical ethics to trained surgeons. In fact, this will be the main thrust of the society this year.
Other doctors too believe that the standards of medical care will improve. As Dr. (Capt) Rao says, ‘ This is bound to happen. As long as there is no enlightened public opinions as to what medicine is all about, the patients are vulnerable and need to be protected.’ He cites many instances of how patients are eager to be medicated. ‘About 90 percent of the illnesses do not need doctors or medicine,’ he points out. ‘They cure themselves if you leave the patient alone.’