Open Forum

New Delhi, 30 October 2013

SC Compensation

CURBING MEDICAL NEGLIGENCE?

By Dr S Saraswathi

(Former Director, ICSSR, New Delhi)

The medical fraternity in India must be in a state of shock. The recent Supreme Court verdict asking a Kolkata-based hospital and three doctors to pay a hefty amount as compensation for medical negligence in a 15-year-old case, may well be a trend-setter, much to the chagrin of the both hospitals and doctors. The apex court raised the compensation of Rs 1.73 crore granted earlier by the National Consumer Disputes Redressal Commission to Rs. 5.96 crore plus interest for nearly 15 years, taking the compensation to over Rs. 6 crore! An amount far exceeding compensation awarded so far for medical negligence in the country.

The case pertained to the death of a young woman during treatment in a hospital   way back in 1998 due to medical negligence. The compensation is to be paid to the husband, who took the matter to the court. The victim, the plaintiff, and the defendants in this case belong to the field of medicine.

Indeed, it is a historic judgement hitherto unheard of in India although cases of medical negligence and malpractices taken to courts are not uncommon. The penalty imposed is justified by the court as a “deterrent and a reminder to those doctors, hospitals, and nursing homes who do not take their responsibility seriously”.

The compensation amount is said to have been calculated taking into account the loss of income of the deceased, who was a child psychologist practicing in the US, loss of consortium, pain and suffering, and the cost of litigation.

The judgement emphasizes the responsibility of the hospital to provide efficient service as an institution from which people expect medical service. Hospitals are expected to provide service through the doctors they employ whatever be the nature of their employment – full-time paid, or on contract. Additionally, the doctors are individually responsible for the treatment given and for maintaining the standards of medical care expected in the fraternity. Medical negligence may be shown by a wilfully wrong act or omission, or by providing a treatment below the standard practice.

The judgement has also noted that it is the doctors’ duty to take the required precautions to prevent spread of infections from patients. More so, as hospitals should not and cannot become a place for spreading infections.

Undeniably, this incident is a wake-up call to hospitals and medical personnel. It is a timely attack on the state of hospitals in general, lack of proficiency and commitment of many doctors, the behaviour of para-medical personnel in hospitals and nursing homes, and the state of pharmaceutical business. The general public to whom the medical industry as a whole caters has plenty of grievances against it in every aspect. Complaints are voiced, response is nil and the public helpless.

This judgment has altered the guarded position to doctors implied in a 2005 decision of the Supreme Court that they cannot be prosecuted as criminal offenders unless there is compelling evidence. Recall, that medicare was brought under the Consumer Protection Act of 1986 in 1995 by the Supreme Court. Not only the course of the treatment, but also the services rendered by way of diagnosis - both medicinal and surgical - were included as “service” and brought under the protection of the Act. There was a fear then that judicial activism in this matter could lead to harassment of medical professionals, including the honest and committed among them.

However, the trend in health services points to degeneration in many respects despite tremendous progress in diagnostic techniques, treatment methods, and medicines. Medical science has progressed, but not the human qualities of those involved in the application of this science in different capacities. On the contrary, the more the technical advancement in the health sector, the greater the scope for malpractices and negligence!

Commercialization of the medical profession is a term increasingly used to refer to the rot that eats into the system. It is said to be the root cause of all evils in the system and its operators. It takes medical treatment and medicines beyond the reach of the middle classes not to speak of the poor. Commercialization is a cause of several malpractices and medical practice in past few years has degenerated into a lucrative industry.   

Medical malpractice refers to “improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other healthcare professional”.   It comes under Tort Law – a field rather weak in India. In recent years only, it has become a serious social issue in our country.

Medical negligence is found to be the third major cause of death in the US just below heart ailment and cancer. Legal disputes on this account were found increasing so enormously that in 2003, the American President approved a legislation to put a ceiling of $250,000 on non-monetary compensation.

The situation in India is far different as the victims and their relatives are mostly not in a position to fight legal battles. They have neither the time nor resources to seek legal remedies. In most cases, knowledge and information needed for asserting one’s rights are also sadly missing. They accept results of treatment as divinely ordained. The doctor and the hospital are but messengers of God, executing the pre-determined fate.

Despite such indifference ingrained in the minds of the average Indians, some amount of awareness about medical negligence and exploitation is spreading fast today. Hopefully, the recent judgement is likely to encourage the trend. More so, as medical negligence and malpractice take various forms besides faulty diagnosis and treatment. Forcing a product, a procedure, or investigations for monetary gain are also forms of malpractices. Clinics and laboratories conducting various tests   have increased and are also enjoying a flourishing business. No wonder, an unhealthy nexus grows between doctors and labs giving rise to unwanted tests – a type of common medical malpractice.

Those who seek medical service, however eminent they may be, totally depend on the advice of the service providers. Hence, the responsibility on the medical personnel is total as far as service is concerned.  

Besides, growth of private hospitals is noticeable since the mid-80s coinciding with economic liberalization. These hospitals are not entirely private in the sense that they get many concessions from the Government in land allotment, import duties for equipment, etc. Hence, their obligation to the people as healthcare providers is no less than that of hospitals in the public sector.

But, the cost of treatment at private hospitals is beyond the reach of the poor and lower middle classes. These classes depend on the public sector health providers which are developing structural and functional deficiencies day-by-day which result in medical negligence and encourage malpractices. The blame, therefore, has to be shared between the institutions and the medical personnel.

However, a note of caution is needed in investigating and penalizing the parties in cases of medical deficiencies. For, the aggrieved party has a tendency to put the entire blame on health providers overlooking the state of the patients and the chances of recovery. Cases have to be heard with extreme sobriety. The present judgement should not act as a deterrent for medical innovations.

A complicated question in dealing with medical malpractice is the amount of compensation. Some norms have to be followed, lest it should appear as arbitrary and invidious distinction between victims. ---INFA

(Copyright, India News and Feature Alliance)