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Under the Guidance of
DR. C.M. FRANCIS, M.B.B.S., Ph.D. (Cambridge)
By
SR, SUMA VADAKKECHURAVALIL
HEALTH CARE AD^0MiSTRAT0Oi)l
ST, JOHN'S MEDICAL COLLEGE & HOSPITAL
BANGALORE - 560034
AUGUST - 1993
Donated b\ Dr. C M Francis in Feb. 2010
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Under the Guidance of
DR. C.M. FRANCIS, M.B.B.S., Ph.D. (Cambridge)
By
SR. SUM A VADAKKECHURAVALIL
HEALTH CARE ADMINISTRATION
ST. JOHN'S MEDICAL COLLEGE & HOSPITAL
BANGALORE - 560 034
AUGUST - 1993
PREFACE
Negligence is as ancient as humanity, yet something so modern
and a reality.
It is present everywhere and in everyone although in
varying degrees.
Negligence is present in the Medical Profession
and health care services.
This seems to be on the increase.
There
is a certain amount of oeterioration in the standard of medical
profession today; and this is probably a reflection of the deterio
ration of the standard that is prevailing in the other professions
and in the Society itself.
His greed for money, wealth and power
Man is never satisfied.
prompts him to deviate from that which is right and good, ultimately
ending up in malpractice and in unethical ways.
In such a situation
that is saturated with this malpractice, negligence and conniption
where people seem to pay a deaf ear to the voice of conscience, every
one gets cheated by the other.
become something epidemic.
remedy.
Malpractice and negligence has almost
Legal approaches seem to be the only
So we have the Consumer Protection Act.
In this paoer,
I have tried
to explain the legal aspects of
Medical negligence and the application of Consumer Protection Act to
the medical profession and the health care institutions.
Generosity is exactly that has helped me in the preparation of
this paper.
A number of people have generously helped me in this
endeavour.
I am greatful to all of them.
I greatfully place on record
the direction and guidance that was given to me by Dr. C.M. Francies,
MBBS, PhD (Cambridge)
in every possible way.
His vast knowledge on
the subject and his rich experience in the field of medicine and life
itself were the best of reference material.
I could ever have.
I
cannot forget the kindness and the understanding I have experienced
from my Guide.
It was a learning process.
Special thanks are due to Rev. Fr. Percival Fernandez, M.A., MBPA,
PhD (USA), the Director of the Course; and to Prof. A.K. Roy, MBA(USA),
the course Co-ordinator of D.H.C.A., who had been instrumental in
selecting this subject for my study,
I certainly cannot forget the
help I received from Prof. C.K. Tewari, M.H.A., who had been so generous
with his time and possessions (materials).
The generosity of Dr. Ravi
Narayan who provided me with the printed materials certainly lightehed
my anxiety to a great extent.
I also owe my gratitude to Dr. Thankaraj
who helped me to take the initial steps in this study.
I extend my
gratitude to one of the Officials from the State Consumer Protection
Redressal Commission, Bangalore, all the Administrators and Doctors
of the three hospitals where I was able to carry out my study.
Fiy
soecial thanks to Fr. Patrick Roorigues, Administrator of St. John's
I-fedical College Hospital, Bangalore and Dr. Lobo, the Medical Superinten
dent of the same hospital, who did give me their Kind co-operation to
complete this study.
I also appreciate the co-operation and support
that was extended to me by all the faculty members and my colleagues
of D.H.C.A.
I extend my gratitude to my superiors and sisters in tny congrigation
for giving me the time and opportunity to attend this course and conduct
this study.
I am really grateful to all those who had been a help
to prepare this paper end also to Mr. Rajan who helped me with the
typing of this paper.
SR. sum
CONTENTS
PREFACE
TAB IE OF CONTENTS
CHAPTER I
A.
INTRCDUCTICH
6
B.
EEDICAL CARE SERVICES
6
-
PURPOSE AND SCOPE
-
CHRISTIAN INVOLVEMENT
C.
IEGAL STATUS OF MEDICAL PROJESSICH
15
D.
DEMAND FCR SERVICE
22
E.
MEDICAL ETHICS
25
-
MEDICAL COUNCIL OF INDIA
-
INTERNATIONAL CODE (MEDICAL &
NURSING)
CHAPTER H
A.
PURPOSE OF Tffi PAPER
b;
organization
O.
ANALYSIS OF CURRENT SITUATION
46
D-.
REVIEW OF LITERATURE
55
of the paper
42
43
chapter hi
A'.
OBJECTIVES OF TEE STUD!
76
Bf.
MSTHDOLOGI
74
0.
SCOPE OF THE STUDI
77
CHAPTER JV
A.
MEDICAL KEGUGEJEE
- DEFINITICK OF MEDICAL NEGLIGENCE
79
- RESPCR5IBILEEIES OF THE PHIS IC IAN
86
- RESPCKSIBILEtlES OF THE INSTITUTION
90
- LIABILITIES OF MEDICAL STAFF,
B-.
79
OTHER
STAFF AND THE INSTITUTION
90
- VARIOUS IEGAL INTERPRETATIONS
99
LITIGATIONS AND DEFENCE
108
CHAPTER V
CONSUMER PROTECTICK ACT
I
120
- LEGAL VIEWS
121
- VIEWS OF THS INDIAN MEDICAL ASSOCIATION
133
- VIEWS OF THE CUSTOMERS AND THE PUBLIC
141
I
CHAPTER VI»
148
RESULTS:
A.
RESPONSES OBTAINED FROM THE ADMINISTRATOR FROM:
HOSPITAL
’A’
148
HOSPITAL
»B‘
151
HOSPITAL
»C»
155
V. JMlUSIS OF THE RESPONSES OF Tffi ADMINISTRATORS
OF
G.
D.
HOSPITAL
’A’, HOSPITAL
4
HOSPITAL
»C'
158
RESPONSES OBTAINED FROM THE DOCTORS OF:
V.
HOSPITAL
«A5
170
2.
HOSPITAL
IB’
132
3,
HOSPITAL
«C«
1%
STUDY
COMPARATIVE
OF
TEE
THS DOCTORS ( f BOS5 ITAIS
E.
»B’
OBTAINS)
RESPONSES
FROM
DOCTORS.
‘A’,
RESPONSES
’B’
VARIOUS
4
OBTAINED
»C’
CATEGORIES
FROM
20$
OF
22
CHAPTER VH:
234
DISCUSSION
CHAPTSI VUI:
Tffi
FUTURE
260
CHAPTER II
SUWARI
AND
COMO LUS IONS
273
CHAPTER I;
A'.
REFERENCES
B'.
BIBLIOGRAPHY
C.
APPENDICES
D.
ILLOSTRATICKS
CHAPTER I
INTRODUCTION
MEDICAL CARE SERVICES
- PURPOSE AND SCOPE
- CHRISTIAN INVOLVEMENT
LEGAL STATUS OF MEDICAL PROFESSION
DEMAND FOR SERVICE
MEDICAL ETHICS
- MEDICAL COUNCIL OF INDIA
- INTERNATIONAL CODE
(MEDICAL & NURSING)
< CHAPTER
)
I
i < t
MxiUauk /V <•«['• c -.. • < j
A.
\
INTRODUCTION
\
Law regulates public activities.
in the
industrial field,
or in the medical field.
It can be
or in the educational field
In the medical uorld,
the
lau is concerned with improvement of physical, mental,
X
and social well-being of the people.
to promote health and present illness.
It is meant
It is also
meant to have better management of people with
disease.
Therefore,
the laws relating to the medical
recti
world need to be examined
and modified even
fied from time to time in
rel'ation to their impact
on the society and people they aim to
-CTed-i-ea-l -Ne,g 1 i ge n ce
regulate.
; •
4Je—have "file lau related to medical negligence .
-which-i-s-a branch of the
law of negligence;-.which in
turn jss a branch of the law of torts.
mainly a judge-made
law developing over the years
through changing judicial decisions.
wrong done
lau
Torts is
Torts is a
by one person to another for which the
provides a remedy.
Unlike the criminal lau,
torts aims at monetarily compensating the victim
2
-
2
:
;
-
rather than punishing the offender.
the victim and
Its focus is on
not on the motives of the offender.
The torts offer civil redressal in the form of com
pensation.
Negligence is a careless acty-an- act-uarrtring—
.care, and may
result in harmful consequences.
"A person
is said to be negligent when be/she acts without due
care in
action.-
regard to the harmful consequences of his/her
The tort
of negligence is made up of various
components - .namely—
a.
A duty ola an obligation recognised by the law
requiring the person to comply with certain
standards of conduct
others
b.
for the protection of
against unreasonable
risks.
A failure on the part of the person to conform
to the standard required - what is known as the
-breach of duty".
c.
A
reasonable close cs^yal connection between the
conduct and the
d.
resulting injuries.
Actual loss or damage
-Pled-ieal negligence
resulting to the other.
is like any- other negligence.
—It is the negligence by a medical person.
a—=s-urgeon-j—or -any ether* membe r of
or the health care institution,
A physician,
the medical profession;
if he/it has not exercised
3
care in the management of
reasonable
to a negligence suit.
The degree of
tution is expected to exercise,
care a person or insti
-Bub The test is the
the ordinary skilled person,
to have that special skill.
This principle
patient.
duty of
He owes
care,
required skill and
becomes applica
The doctor is expec
knowledge to treat that
certain duties to the patient,
i.e.,
the duty of
the
namely,
care in his decision to take
the patient; duty of care in his decision to treat
duty of
stan
exercising and professing
ble when the doctor accepts the patient.
ted to possess the
liable
varies from case to case de
pending on the fact of each case.
dard of
a patient may be
the patient
care with regard to the type of treatment to be admi
nistered; and the duty of care in providing the patient the
right kind or the proper information.
Any deviation from
these duties of care is negligence.
Rights of the patient :
—Where there is a right,
there is a remedy.
Any
patient
who is treated by a particular doctor or a hospital,
has got
certain
rights.
The patient has the
-b-i-lity and availability of health services.
to be treated as an integrated whole person.
extended to
and also to receive
He has the
He has a right
His rights are
receive information and to give informed of the
medical consequences of the action.
opinion,
right >to accessi-
He has a
right to second
information from the doctor.
right also to privacy and confidentiality.
He
and his family hag the
right to adequate
legislation when
he is deprived of any.of the above mentioned
rights,
have suffered damage or injury as a part of it.
or
Jn such
situation he has the right to appeal or ask for the
remedial
ft-was always there-.
measures.
‘Ftemedies for deficient services
‘
.-----------In the past there were two options open to the patient
with complaints against the doctor oft- the hospital.
The first
option was to file a case in the civil/criminal court of law.
This was not very much appealing to the plaintiff as it was
very expensive
fee),
(a large amount had to be deposited as court
and time consuming (it may take many years for a deci
sion to be arrived at and then there was the possibility of
appeals).
The aggrieved person also had to employ a lawyer.
All these resulted in frustrating and harassing experience
for the patient/the plaintiff,
with the original purpose
getting diluted and lost in the labrynthine corridors of
time,
procedure and jurisprudence.
have
recourse
to -the second option by filing a complaint
with the Medical Council of
of medical professionals.
ham
If
the
'The aggrieved person can
India,
a statutory body composed
This too had its own disadvantages,
council finds -that the doctor .was negligent,
\ . \ ». <? 'A. r-£>l. PV jti. »
they punish the doctor by de-recognising his
V i•! J
registration or
••A)
, th.
A.
V1 ,
,■!
licence to
practice as a doctor.
The State Medical Councils
•5
-
:
5
:
But
also have the same powers.
compensate the
on his
-
certainly,
it did not
loss or damage suffered by the patient
relatives.
Consumer Protection ftct,
1986;
. Both the above mentioned-options did not satisfy the
patient.
In 1986,
a third option became available for the
patient^--—the—consumer of-the health care service--— by the
enactment of the Consumer Protection Act by the Parliament.
The Consumer Protection Act provides for redressal of grie
vances,
when there is deficiency of goods or services.
The -Consumer Protection-Act assures the patient speedy
redressal of grievances in special consumer courts at the
district,
state and national levels.
There is no court fee
St
charged,) and (idoes not need the service of an advocate either.
All that is
required is a written complaint on a plain paper
with the demanded amount of
St-
compensation; which- can be submi
tted to the Consumer Forum either in person or by post.
The
Consumer Court will ensure
deicision/
the plaintiff with a speedy
redressal within 90 days.
■In short.,, the Consumer Protection Act,
conferring any new right,
while not
provides for a simpler,
and faster avenue of redressal of grievance.
cheaper
6
B.
HEDICAL CARE SERVICES
Independence itself
Before
India had a well
organised medical care service system along with adminis
tration, police, engineering,
forestry and education.
This
then,
Indian medical Service,
had a military and
civil wing meant primarily for the needs of the armed
forces; most of the civilian officers were held in
reserve to meet the
in times of war.
requirements
With the attainment of independence,
in 1947,
major changes were made in the health administration.
Based on the
recommendations of
the Shore Committee,
the medical and public health departments were combined -
both in the centre and the states - under one single
administrative
head.
Recent happenings of national significance like
the Lentin Commission report which brought to light the
danger*ous prevelence of spurious drugs,
their use in
major hospitals and the connected incidents in the matter
of medical care in the country have brought in the minds
of every citizen, the need for quality of medical care.
In the minds of professionals who manage hospitals both
large and small, the same question assumes even greater
importance with the added
The
real fear of
legal aspects, especially the
legal implications.
responsibilities on the
professionals as well as the institutions themselves
are becoming more and more clear with new decisions and
rulings,
in the country and,
more so,
in the advanced
countries.
In order to
What is this medical care service?
understand what is medical care service,
one needs to
know what is health care service; medical care forms part
of health care service.
"Health care service
for fellow human beings.
is an expression of concern
It is defined as a multitude
of services rendered to individuals,
or commu
families
nities by the agents of health services or professions for
the purpose of promoting,
ting health.
maintaining,
Such services may be
monitoring or resor
staffed,
organised,
administered and financed in every imaginable way,
they all have one thing in common;
i.e.,
diagnosed,
helped,
by health professionnel.
cured,
but
People are being "served"
educated and
In many countries,
rehabilitated
health care
service is completely or largely a governmental function."
Though it is primarily
Health care is a public right.
the
responsibility of the government,
people in equal measures,
helped by individuals
to provide it to the
the government is supported and
as well as private and voluntary
health care institutions to provide this
right.
3
3
India,
In
the health care services are delivered
through the health system which constitute the management
sector and involves organizational matters such as planning,
mobilising and allocating resources,
determining priorities,
translating oolicies
education.
into services,
evaluation and health
These health systems aim at health development.
Currently the goal of health system is to achieve health
for all by 2000 A.O.
The best way to achieve this goal,
three tire system of health care service
- Primary health care
the
has„been introduced;
whereby the first level contact
between the individual and health system takes place
and
'essential'
health care is provided.
It is at
this level the health care will be most effective
within the context of the individual's and commu
nity' s needs and limitations.
Secondary health care is where more complex problems
are dealt with - comprising essentially curative
services.
-
Tertiary health care is where super speciality care
is provided at the
regional/central level institutions.
"The health care services have certain
such as appropriateness,
bility,
accessibility,
comprehensiveness,
characteristics
adequacy,
affordability and feasibility."
availa-
2
9
-:9s-
■
Medical Care Services ;
medical Care Services form part of health care services.
"medical care service is a subset of health care service.
The term medical care service refers mainly to those personal
services that are provided directly by the physicians or
rendered as a result of the physician's instructions.
medical care services
hospital care."
range from domiciliary care to resident
3
"medical care services begin with the sick and seek
to keep them alive, make them well or minimize threat to
health from disease or environmental hazards and seek to
protect as many people as possible from the harmful conse-
quences of the threat."
4
Problems of medical care services in
In
India
India we have a national health policy but we do
not have a comprehensive national health service due to the
inadequate financial resources to furnish the cost of running
this service.
Today approximately 80% of the health care
service facilities are concentrated in the urban areas and
is
catering to the 20% elite population of the country.
They
are mostly disease - oriented and hospital based services.
Another problem is inadequate staffing.
Added to them is
scarcity of essential drugs and medicines at affordable prices.
The modern curative and preventive health services do not
10
10
reach the
rural population which constitute 75$ of the
total population (1991
lation
Most of
census).
the
rural popu
rely on the primitive and indigenous systems of
medicine because of the unequal distribution of available
resources between the urban and
rural areas,
and lack of
penetration of health services to the social periphery.
The primary health care services try to reduce these in
balances.
Purpose of medical care service
The entire health care services,
especially the
medical care services aim at preservation of life and
promotion of health.
a.
Preventing measures ;
As the proverb
^expression)
goes "Prevention is better than Cure",
it is
always better and cheaper to prevent the disease
than to cure.
prevented.
What can be prevented need to be
Preventive measures are as old as
history itself.
good even in the
It holds
of health and medicine.
a branch of medicine
case
Preventive medicine is
in general and is not the
same as public health.
Preventive medicine is
applied to healthy people.
Its primary objective
is prevention of disease which in turn promotes
health and preserves life.
Immunization is based
11
11
□n this principles;
this immunization
to prevent the occurence of disease,
of the person and control of
helps
protection
the disease in the
case of communicable diseases.
b.
Caring :
'care'
The dictionary meaning of the word
is to feel affection,
protect,
to like,
to feel interested in,
It is greatly appreciated
as the sick.
fl
to look after,
to
etc.
by the healthy as well
healthy person continues to be
healthy when he is well cared for.
The
sick get
well faster and gain good health if they are trea
ted with care and love.
not more)
health.
Care is an important (if
as curative and preventive aspect of
Caring is certainly within the boundaries
of one's experience.
It is something that is
subjective; yet something so
real and concrete.
Care is something that is internal yet it cannot
be contained within oneself.
blood of
Caring is the
health/medical care service.
vital to the preservation of
life
It is
life and promotion of
health.
c.
Curative measures :
of years old.
remedy.
These
Curative medicine is thousands
Every problem has to have a solution/
remedial measures in medical cure
service are the curative measures.
Nature herself
12
12
has provided us with provisions for it.
Science
and technology have added/contriouted towards
this greatly.
The primary objective of curative
measures is removal of disease from the person
affected by it.
Thus
approach measure.
The
avails the diagnostive
ailments.
it
is an individualised
curative
aspect of medicine
techniques and treatment of
it is a specific and potential asoect
of health care services.
It is prevelanr/existing
in every system of medicine.
curative measures
contain a vast body of scientific knowledge,
tech
nical ski'll, medicament and machinery highly orga
nised - not merely to treat disease but to preserve
life (and promote health)
itself as far as
it could
be possible.
Curative medicine has gone through tremendous
growth as a result of progress in medical technology
and scientific inventions and interventions.
d.
Promotive measures ;
Health promotion is a concept
belonging to the present centuary which took its
shape from the
realisation of the fact that the
public health had negl-ected
the
citizens as an
individual while the state/country had a direct
responsibility for the health of
As a result of
this
the
individuals.
realization of health promotion,
13
:
13
public health nursing came into the picture.
As a part of health promotion,
are being introduced.
various programmes
Health promotion
science and art of preventing diseases,
is "the
prolonging
life and promoting health and efficiency through
organized community effort."
Promotive aspect of health is intended to
strengthen the host through variety of approaches/
interventions and not directly against any particular
disease.
Various approaches to the promotive aspect
of health care/medical care are mainly through health
environmental modifications,
education,
nutritional
interventions as well as life style and behavioural
changes.
In short,
health promotion is "the process
of enabling people to increase control over,
and to
improve health."
e.
Rehabilitative measures ;
Rehabilitation is a recently
emerged medical speciality which involves various
disciplines such as physical medicine or physiotherapy,
occupational therapy,
psychology,
dance,
is the
education,
placement,
speech therapy,
social work,
service,
confined and
etc.
audiology,
vocational gui
Thus "rehabilitation
co-ordinated use of medical,
social
educational and vocational measures for training and
re-training the
individual to the highest possible
:
14
level of functional ability."
Rehabilitation aims at reducing the impact
of disability and handicapping conditions and enabling the
disabled and handicapped to achieve social integration or,
in other words,
the active participation of the disabled and
handicapped people to the main stream of community life.
"In
rehabilitation there are various areas of concern
such as
medical rehabilitation - restoration of function
-
vocational rehabilitation - restoration of the capacity
to earn a livelihood.
-
Social rehabilitation - restoration of family and social
relationships.
-
psychological rehabilitation r restoration of personal
o
dignity and confidence."
Health personnel and medical services :
Health/medical care service is a team work,
ting of various types of services
of persons.
involving various categories
It is rendered by doctors,
health personne1/professionaIs.
consist-
nurses and allied
Everyone of them is equally
important in the building up of the health of individuals
and community.
The degree of
responsibility that is vested
on each one of them by the society/ community varies.
15
:
15
In the medical care service,
the maximum responsi
bility is shouldered by the physician and then the nurses
and then only the allied professional.
Hence
the doctors
are more liable for the negligence that may/can happen during
the process of medical care service.
Christian involvement :
fledical profession and the healing ministry by the
Christians in
India has been growing
tude over the years.
in variety and magni
institutions and services
flany are the
being operated by the generous persons who have dedicated
theaselves to this area of Christian work.
The Christians,
has responded to the health
particularly the catholic church,
care needs of the country to a remarkable degree.
Yet the
fact remains that the health needs of this vast and poor
country are not met adequately.
document of the Government of
The national health policy
India depicts the (pre.vailing)
existing picture of health care services and medical profession
a cause of serious and urgent concern.
C.
LEGAL STATUS OF MEDICAL PROFESSION
According to the Directive Principles in the
Constitution,
raise
Indian
one of the primary duties of the State is to
the standard of living of the people and improve their
health status.
In order to achieve this purpose,
laws h.;ve been formulated aiming to
regulate
several
the health care
.....16
16
Some of these laws are meant to minimise the
facilities.
dangers often connected with these facilities themselves while
the others regulate the
quality of health care by attempting
to keep a check on self-styled health specialists.
Yst some
sale
others have been formulated to have control on movement,
and distribution of toxic substances.
Host of
unfortunately,
comprehensive,
laws are
the existing
they are not being enforced.
but
Such neglect of
legal provisions operates against the public to the benefit
of
the violators.
Doctors and Laws
Under the Medical Council of
India Ret,
1956,
every
doctor after having acquired the necessary qualification^
is expected to register himseIf/herseIf and get the
before he/she can practise
or treatment.
lieence
and collect fees for his advice
The Medical Council of
India is empowered by
the Act to ensure the enforcement of this Act and also to
take the necessary disciplinary action in case of serious
professional misconduct - even to cancel the
the doctor,
if and when necessary.
association,
negligence and
registration of
Adultery,
improper
advertising are some of the
issues on which registration can be cancelled.
The Act has made provisions to
regulate
the activities
of the medical practioners especially those engage in unethical
medical practices.
17
17
✓"The
Indian Medical Council Act (1956)
Medical Degrees Act (1916),
have been invoked to prevent
doctors from advertising, deemed
by doctors,
and the
to be unethical practice
professional misconduct and use of unrecognised
or fake degrees.
The State Medical Council must be made to
regulate and supervise the professional conduct of the
doctors registered with the council and to ensure
adequate standards are maintained
In all legal issues
lobbying,
the media and,
cannot be underestimated.
in medical practice."
relating to health,
where
the
g
role of
recourse in law,
appropriate,
Otherwise,
the producer will
continue to dictate to the deriment of the
According to the Act,
that
consumer.
the medical practitioners are
forbidden to make/convert the profession into a business,
trade,
etc.,
which will degrade the nobility of the profession.
"Nothing in the Act shall extend or be
extend,
to prejudice or in anyway affect the
construed to
lawful occupation,
trade or business of chemists and druggists and dentists or
the
rights,
privileges on employment of duly lincensed
apothecaries so far as then extend to selling,
compounding
..
•
•
..10
or dispensing medicines."
18
18
Under the
law of tort
the doctor is expected to
the necessary knowledge and skill and also to
possess
exercise
reasonable degree of care while managing/treating
If he fails in these
a patient.
injury or loss to the patient,
which result in harm or
then the patient can demand
the due compensation from the doctor for his negligence.
-’"'It is the duty of every -registered practitioner to
bring to bear upon all his professional activities that
standard of
skill and knowledge which is to be expected of
a practitioner of his experience and status and of comparable
standing to him.
-It is also his duty to exercise
care in his treatment of a patient.
If the failure to
exercise the necessary degree of skill or care
-to the patient,
injury,
damages.
reasonable
results in
he will have^ a right of action
for
Whether reasonable skill or care has been exercised
.in a particular case is a matter which has to be considered
-in
relation to the facts of each case."
The
11
law also demands of the doctors to explain the
facts about the nature and the purpose of the treatment or
procedures,
to the patient or to his family (if needed)
and
then obtain a fully informed consent ,> and only after that
the doctor is expec-ted to/permitted to ca rryout/pe rf o rm the
required treatment/procedure.
doctor is expected
In case of emergency,
the
to use his discretion and provide the
19
19
necessary emergency treatment and maintain the prooer
record.
"A doctor has no
right to do anything to a patient
\
without his consent except
in case of emergency wh^re he
must exercise his discretion.
The securing of a signature
to a consent
should not be allowed to become an end in
\
itself.
The most important aspect in any procedure must
always be the duty to explain to the patient or relative
the nature
arid purpose of the proposed operation and thus
to obtain a fully informed
consent.
In our country this
\
\
should be even more important (though admittedly also more
difficult)
since there is so much illiteracy and lack of
inf ormation."
12
Drugs are another entity subject to standards.
The Drugs and Cosmetics Act,
as well as
1940 provides for the control
regulation of the drugs and cosmetics while they
are being produced,
distributed,
It is upto the
and sold.
State Drug Controllers to see to the enforcement of the
provisions of
this Act^and the Drug Controller of
all the powers to co-ordinate the activities of
India has
the various
State Drug Controllers to ensure uniform application of the
provisions of this Act
throughout the
country.
"A drug which has been declared h'armful or irrational
x
X.
X.
by the
technical bodies cannot
(in theory)
be purchased
20
20
I
or prescribed by any Government authority;
irrespective of
the fact that the orders of the Government prohibiting the
manufacture and sale of the drug might have been stayed by
a court.
This Act now extends to^'ayurvedic and unani products
. , „
as well."
13
The Act provides safety to tha citizens-(-the people)'.
But the link between the drug manufacturers,
the medical
practitioners and the chemists endanger the health and well
being of the individuals,
although the defaulter can be
imprisoned for upto three years and the goods confiscated
\
under the Drug Control Act,
Health Service and the
1956.
law
In the developed countries
like the United
States,
the United Kingdom and the Scandinavian countries,
there were
adequate provisions for medical and nursing care for the entire
people.
India,’ -the situation is quite different...
But in
Radical and health care is grossly in adequate.
it,
there was
hardly any effort to
as litigation in
Adding to
redress injustice caused
India is time consuming,
and very expensive.
The strong nexus-amongst- the doctors who- provide protection
.to each other inspite of the wrong doings,
of
the
cases in the court.
Very often,
comes in the -way.
proper documents
are also not available to the patient who wants to file the
case.
Because of all these
reasons,
the patients seldom
21
21
cobs
forward to sue the doctors/hospitals.
The
litigation
does provide for the possibility of ensuring justice.
these are limited in content and form.
Government of
As a result,
But
the
India passed the Consumer Protection Act in
1986 in order to protect the consumers at large,
an-d—a-t—the
-s-a+Re—time ensuring their rights as consumers,
On April 21st
1992,
National Commission stated
the judgement made by the
that the medical profession and
the health care institutions also come under the purview of
the Consumer Protection Act and are liable for the negli
gence and substandard services rendered to the patients
who are consumers of health care/medical care services and
facilities.
The Act defines
'service*
as service^ of any
kind and thus the Consumer protection Act includes all
services rendered or provided by the health care institutions
and the medical profession for a consideration.
The aim of the Consumer Protection Act is to provide
easier,
sive
quicker and cheaper redressal compared to the expen
complicated and tiipecconsuming
Civil Court and the Criminal Court.
one provided by the
It also aims at quality
services as well as holding the producers and providers of
services accountable
and responsible for their actions.
The services rendered by the voluntary and charitable
health care institutions and persons are not commercial.
22
22
Still they are brought under the purview of Consumer
Protection Act for the same purpose,
i• e• ,
quality service,
responsibility.
accountability and
to ensure
"The patients are becoming more and more aware
of
table
in^their accusations
redressal form.
X.
D.
longer going to be chari
their rights and they are no
A
when they approach the
consumer
single case can be sufficient to destroy
"
the image and
reputation of the hospital and the medical
professional
beyond repair."
DEHAND FOR
SERVICE
Health is something unique.
It is unique in the sense
that the supplier controls the demand.
behalf of the patient,
In the past,
on
the doctor used to take the decisions
regarding the type of service,
quantity,
quality and the cost
of the service, etc., delivered to the patients.
The doctor
made/took these decisions in good faith and the patient
accepted them too in good faith.
ship was built on mutual trust.
The doctor-patient relation
But to-day
with the libe
ration of the market forces in health care many a time,
is an absence and a misuse of this trust.
has
The patient who
lost his trust in the doctor and the hospital,
them to the
Hence,
there
court if
there
can take
there/deficiency or defect in service.£s
is a greater need for these
institutions and
23
:
23
the medical professionals to be
awake,
alert and very,
very conscientious.
certainly is a trying period
The present situation
for the voluntary,
charitable
and non-profit health care
institutions and its personnel.
ting situation,
Though faced with a temp
we got to refain from the entrepreneurial
approach to medical care practices
use of medical interventions.
and the existing over
We need to refrain from
entering into business arrangements with other physicians,
private
laboratories and pharmaceutical
that we do not trade
on our patients'
maintain our own security.
etc.,
companies,
trust,
so
in order to
Our services demand us to
provide our doctors with all the necessary defence cover and
other necessary support in order to retain them.
sent situation demands (more than ever before)
The pre
quality
medical care at a reasonable cost on one hand and on the
other hand,
we have got to spend
large sums on equipments
and facilities to improve and also to be upto-date.
to
refrain from using defensive medicine
inspite of
We got
the
temptations to be on the safe side.
The present situation is
likely to increase
the cost
of medical care which means only the rich will be able to
avail our services and facilities and the poor who really
needs our services will be neglected as their accessibility
24
:
will be diminished.
institutions and
If
the poor -has no access
their health care facilities,
to these
there any
is
meaning in the existance of such charitable and voluntary
institutions especially
in a country like ours where the
the population are poor,
majority of
In the present situation,
great,
ignorant and illiterate?
the demand for our service is
really
the possibility of providing them to those who
but
deserve it is very little.
How are we going to face this
challenge???
'"The Consumer Protection Act forces us to provide
quality medical care • et—a -reasonable
cost.
On the other hand,
'"'■'we may have to spend large sums to purchase new equipment and
facilities to improve our diagnosis.
We will be forced to
protect ourselves with tests and investigations that are not
in normal circumstances.
needed
consultants may have
In some cases,
to be invited for a second -or—third
opinion before taking a decision on the
in turn,
which will,
external
individual cases,
raise the cost of our services.
. We will
be -forced to pass on this investment to the patients.
jjn-ly the
rich and those who can -pay, benefit from our services?
■Will the poor and needy be neglected?
..for us
to
Will
......
Is
it possible
refrain from the entrepreneurial approach to
medical practice and the prevalent over use of medical inter
ventions?
Is it possible for us to refrain from entering
into business
arrangements with other physicians,
laboratories and pharmaceutical companies
our patients
private
and thus trading
trust for our own security?"
25
I
I
:
E.
25
MEDICAL ETHICS
Every profession has its own
codes of conduct to
guide tv« members of the profession.
medical profession too.
the
Medical ethics form apart of
which is founded on the public consci
general ethics
ence).
This is true of
Although it does not have the
legal force of
law,
at times it is even more forceful as violation of medical
ethics can be viewed very seriously by the other members
of the profession.
legislation.
Very often ethics is followed by
Therefore,
we consider the
when
affecting medical practices,
legislation
it is very important to
understand the ethics of medical profession.
Medical ethics is not a
ready made solution to
the problems in the medical practice.
provides a practical guidance.
in healing to come
But it certainly
It helps those engaged
to conscientious decisions in the
best interest of the patients.
It is with this spirit
that we could approach the current ethical problems in
medical practice.
The term
'Ethikos'
'Ethics'
is derived from the Greek word
and it stands for rules of
conduct that govern
the natural way in which human beings act.
"In modern connotation,
distinguished from morals.
ethics has
come to be
Where as morals
are belief
26
sanctioned by mysterious powers,
intellectually derived.
The latter in contrast to the
are also considered to be
former,
ethical levels are
less profound and more
amenable to change.
Any professional ethics can be considered only as
a species of
general ethics.
Behind medical ethics,
for
instance must stand such cardinal virtures as wisdom,
justice,
temperance,
courage and benevolence.
This means
that ethical principles to which it cannot run counter.
Ethical issues
require nothing tout application of medical
ethics in a more specialised field.11
16
DEFINITIONS OF MEDICAL ETHICS :
"Medical ethics is a systematic effort to work
within the ethics of medicine,
been service to the sick.
which has traditionally
It is part of general ethics.
It is the application of what is good and
from the values in health care.
right derived
It deals with norms that
govern the behaviours of medical profession.
It is con
cerned with the obligations of the doctor to the patient;
other doctors and health professionals and the society."
17
"Ethics is that science which studies the morality
of human act through the medium of natural reasons. ' It is
that science,
which is directive of
the moral acts of man's
will according to the basic rational principles.
ethics
In a word,
teaches us how to judge accurately the moral goodness
27
I
I
I
I
I
I
I
I
X
or badness of any human action.
ethics
Therefore,
is a form of special ethics.
the application of
medical
It is concerned with
general nrinciples to the moral problem
of medical profession.”
1R
"Medical ethics is a systematic thinking on values
that are at work in health care profession and formulation
of norms to protect these values."
19
"Medical ethics is a systematic effort to elaborate
the prospective and ethical norms of governing the medical
profession.
It is
on the human values implicit
reflection
in medical care and hence is an indespensable
guide to
achieve the true good of the patients and the physicians
I
I
I
I
I
themselves."
2D
The source of ethics are
the various values; especia
lly the concept of love for one's neighbour.
love - love for one's neigh
thereby every religion upholds
bour - as the most important of
all principles.
colour,
sex and social status.
respect for life and quality of
is an expression of
life.
this quality of
Ethics
regardless of caste,
places greater value on human life;
creed,
Every scripture,
Its main aim is
ethics
In other words,
life one maintains.
The fundamental values of medical profession are
relief of suffering,
cure of disease,
care of persons,
promotion of
prevention of disease,
health and preservation
......... 28
of
life.
:
28
:
Combining the two principles,
the medical ethics
is formed which though does not provide a ready-made
solution,
it certainly enables the medical person with
a valuable exercise in ethical reflection thereby provides
the necessary guidelines before any medical undertakings.
ETHICAL CODE
Ethics enables one to think and act/do
right and good for self and the other.
what is
An ethical code is a
set of guidelines which enable the professionals to foster
and maintain the ethos of the profession.
On the whole,
the ethical code is derived and influenced by humanism,
religion and also the hippocratic oath.
It needs to be
revised and updated depending on time,
place and people.
It is an expression of conviction/principles/values that
one gives importance to.
"An ethical code is a set of guidelines that guaran
tees and fosters the genuine ethos of the profession.
Ideally it is formulated by members of the profession itself,
though with the help of
also be
the specialists in ethics.
It would
good to involve the society at large.
Flost such codes are more or less derived from the
oath of
hippocrates and strongly influenced by Christian
humanism.
An ethical code needs constant revision accor
ding to contemporary values and insights,
but care must be
29
:
-
taken to preserve what
f reedom."
29
:
-
is essential to human dignity and
21
Medical profession is one which deals with human
beings - who are sick and helpless - One of
the character
istics of the medical profession is that it handles life;
life
that are delicate.
Hence ethical code of donduct
are of vital importance to this profession more than any
other profession,
to guide the members of the profession.
It (Ethical code)
is not a parliament.
made law.
It is
formulated by the members of the profession themselves with
the help of experts in ethics and
fession.
Hence,
is approved by the pro
it is equally (if not more)
forceful.
It is the voice of conscience which calls the members of
the profession (doctors in the medical field)
to do what
is right and good for others - namely the patients.
"Ethical code of conduct are important to any pro
fession.
It is all the more so for medical profession.
The codes of conduct can succeed only if the profession,
as a whole,
feels responsible for its implimentation.
the doctors as members of the profession fails to be
If
respon
sible and do not take action against those who do not
observe the code,
the code becomes ineffective.
Ethical code
is not legislation.
But
forceful as it is aoproved by the profession.
it
is equally
The final
.30
:
30
court in all action is the conscience of the doctor (and
of the patient).
There appears a voice which summons the
doctor to do what is good and avoid evil."
THE MEDICAL COUNCIL OF
CODE Of ETHICS OF
22
INDIA
Although there is an international code of medical
ethics,
every country is privileged to have its own
of medical ethics for the doctors of that country.
Medical Council of
code
The
India - a statutory body set up by the
parliament - has set up its*
own code of medical ethics
which is to be observed by the doctors of this country.
They are as follows;
A.
-
"General Principles" - explains what is expected of
of
the doctors in
1.
The character of the physician
2.
The physician's responsibility
3.
Advertising
4.
Payment of professional services
5.
Patent
6.
Running an open shop
India regarding
and copyrights
^Dispensing drugs and appliances
by physician)
7.
Rebates and commission
8.
Secret remedies and
9.
Evation of
legal restrictions.
31
:
B.
31
Duties of physicians to their patients:- are described
in terms of
0.
1.
Obligation to
2.
Patience,
3.
Prognosis and
4.
The patients must not be neglected
the
sick
delicacy and
secracy
Duties of the physician to the profession at large
such as :
D.
honours of the profession
1.
Upholding the
2.
Membership in medical society
3.
Safe-guarding the profession and
4.
Exposure of unethical conduct
Professional service of physician to each other
namely:
E.
1.
Dependence of physicians on each other
2.
Compensation for expense
Duties of physician in consultation includes
1.
Consultation should be encouraged
2.
Consultation for patients'benefit
3.
Punctuality in consultation
4.
Conduct in consultation
5.
Statement to patient
6.
Conduct in consultation
;-
after consultation
32
:
F.
G.
H.
32
7.
Treatment after consultation
8.
Consultant not to take charge of the
9.
Patients referred to specialists.
Duties of physician incase of interference
case and
co m p 1 e s ;
1.
Appointment of a substitute
2.
Visiting another physician's case and
3.
Engagement for an obstetric case
Duties of physician to the public such as ;
1.
Physician as citizen
2.
Public health and
3.
Pharmacists.
Disciplinary actions
are also stated in the code of
medical ethics by the
Indian Medical Council through
which the
registered medical practioners are
warned
against professional misconduct which may be brought
before the appropriate medical council which has the
authority to punish the registered medical practitioners
under the
Indian Medical Council Act,
1956.
The disci
plinary action mainly are the temporary or permanent
de-registration of the name of the doctor concerned,
depending on the seriousness of the offence and profe
ssional misconduct.
Disciplinary action is taken by the
appropriate medical council,
against violation of the
33
of the code in letter or spirit
List of the infamous acts that may be punished by
erasure from the Register and by that,
by issuing
this notice the medical councils are in no way pre
luded from considering and dealing with any form of
professional misconduct on the part of the
R.R.Ps.
The list is as follows:-
a)
Adultery or improper conduct or association with
a patient.
b)
Conviction by court of law for offences involving
moral turpitude.
c)
Issue of wrong professional certificates,
reports
and other documents.
d)
Contravening the provision of the Drugs Act and
regulations made thereunder
e)
Selling scheduled poison to the public under cover
of his own qualification except to his patients.
f)
Performing or enabling an unqualified person to
perform an abortion or any illegal operation for
which there is no medical,
surgical or psychological
indication.
g)
A physician should not issue certificates of efficienc
in modern medicine to unqualified or non-medical person
h)
A
physician should not
articles and give
contribute to the
interviews
lay press
regarding diseases and
treatments which may have
himself
the effect of advertising
or soliciting practice.
(But he
is allowed to
write or give talks on radio broadcast on matters
relating to public health,
i)
hygienic living,
etc.).
An institution run by a physician for particular purpose
such as maternity home,
sanatorium,
tised in the
but
lay press,
etc., may be adver
it should not contain any
thing that advertises himself.
j)
It is improper for a doctor to use unusually large sign
board and write on it anything other than his name,
quali-fications obtained from a university or statutory
body,
titles and name of his speciality.
The same should
be the content of his prescription paper too.
k)
Disclosing the secret of a patient
that have been learnt
in the exercise of the profession.
Those may be dis
closed only in a court of law under orders of presiding
judge.
1)
m)
Refusing on
religious ground alone to give assistance
craniotomies on
or conduct sterility,
birth control,
living children,
theraputic abortions when there
and
in
is medical indication;
unless the medical practitioner
feels himseIf/herseIf
incompetent to do so.
Not obtaining in writing the consent from the husband
or wife,
parent or guardian in the
the patient himself as the
ming an operation.
case of minor,
case may be,
or
before perfor
In an operation which may
result in
35
:
sterility,
35
the consent of
both husband and wife is
needed.
n)
reports of the patients
Publishing photographs or case
in any medical or other journal in a manner by which
their identity could be made out without their permi
ssion;
should the identity be not disclosed,
consent
is not needed.
o)
If you are
running a nursing home and if you employ
assistants to help you,
the ultimate
responsibility
rests on you.
p)
No physician must exhibit publically the scale of fees.
But there is no obgection
to the same being put in the
physician's consulting or waiting room.
q)
Use of touts or agents for procuring patients.
r)
Claiming to be a specialist unless you have put in a
good few years of study and experience or have a
special qualification in that branch.
you are one,
do not undertake
lity even for your friends.”
Once you say
work outside your specia-
23
INTERNATIONAL CODE OF MEDICAL ETHICS
(World Medical Asso
ciation - 1949).
"Adopted by the Third General Assembly of the World
Medical Association at London in October 1949,
the
Inter
national Code of Medical Ethics states the most general
36
36
:
principles of ethical medical practice.
It was modeled
after the declaration of Geneova and the
Codes of ethies
of most modern countries.
the
But unlike most national codes,
International Code omits reference to specific unethi
cal practice as well as to judiciary procedures.
ginal draft included
which,
|he ori
a statement on therapatic abortion,
because of its contraversial nature,
from the adopted version of the
was deleted
International Code of
fledical Ethics.
J"
Duties of a doctors in general :
A doctor must always maintain the highest standards
of professional conduct.
A doctor must practice his profession uninfluenced
by motives of profit.
The following practices are deemed
unethical.
a)
Any self advertisement except such as is expressly
authorised by the national code of medical ethics.
b)
Collaborate in any form of medical service in whiehthe
doctor does not have professional independence.
c)
Receiving any money in connection with services
rendered
to a pationt other than a proper professional fee,
even
with the knowledge of the patient.
Any act,
or advice which could weaken physical or
mental resistance of a human being may be used only in his
inte re st.
37
:
37
%
great caution in
A doctor is advised to use
divulging discoveries on new techniques of
A doctor should
treatment.
certify or testify only to that
which he has personally verified.
Duties of doctors to the
A
sick :
doctor must always bear in mind the obligation
of preserving life from conception.
may only be performed
if the
Theraputic abortion
conscience of the doctors and
the national laws permit.
A doctor owes to his patient complete loyalty and
all the
resources of his science.
or tre atment is beyond his
Whenever an examination
capacity he should summon another
doctor who has the necessary ability.
A doctor shall preserve
absolute secrecy on all he
knows about his patient because of
the confidence entrusted
in him.
A doctor must give emergency care as a humanitarian
duty unless he is assured that others are
willing and able
to give such care.
jjj
Duties of doctors to each others ;
A doctor ought to behave
to his colleagues as he
would have them behave to him.
..........38
:
38
A doctor must not entice patients from his colleaoues.
A doctor must observe the principles of "The Declaration of Geneva"
,
approved by
INTERNAT ICNAL COUNCIL OF NURSES
"The
1.
:(Code for Nurses 1973)
international Council of Nurses approved an
international code of ethics in
notable
the World Medical Association.
1973,
which includes several
changes over its earlier 1965 code.
The 1973 code makes explicit the nurses responsibility
and accountability for nursing care.
statement found in the 1965 code,
an obligation
gently and
It deletes the
"The nurse is under
to carryout the physician's orders intelli
loyally," which tended to abrogate the nurse's
judgement and personal responsibility.
2.
The 1965 code stated that "The nurse believes in the
preservation of human life,
adding:
"The fundamental
responsibility of the nurse is three fold;
life,
to eonserve
to alleviate suffering and to promote health."
In its place,
the 1973 code points to a four fold
responsibility,
"to promote health,
to prevent illness,
to restore health and to alleviate suffering",
that "respect for life,
dignity and
adding
rights of man are
inherent in nursing."
3.
The traditional concept of the
ssed in the
1965 code:
virtuous nurse was expre
"In personal conduct nurse
39
2
39
:
should not
:
knowinlgy disregard the accepted pattern of
behaviour of
the
In its place the
community in which they
live and work."
1973 code incorporates a statement that
places emphasis on
the profession;
"The nurse when acting
in a professional capacity should at all times maintain
standards of personal conduct that would
upon the profession."
The text of the
reflect credit
1973 code for nurses
follows:
The fundamental responsibility of the nurse is four
fold:
to promote health,
to prevent illness,
to restore
health and to alleviate suffering.
The need for nursing is universal.
nursing is respect for life,
dignity and
Inherent in
rights of man.
It is unrestricted by considerations of nationality,
creed,
colour,
age,
sex,
politics or social status.
Nurses render health services to the
the family and community and
with those of
£
race,
individual,
co-ordinate their services
related groups.
Nurses and people
The nurse's primary responsibility is to those people
who require nursing care.
The nurse,
values and
in providing care,
respects the beliefs,
customs of the individual.
41
:
40
The nurse holds in confidence personal
information
and uses judgement in sharing this information.
Nurses and practice
fl.
The nurse carry personal responsibility for nursing
practice and for maintaining competence by continual
learning.
The nurse maintains the highest standards of nursing
care possible within the
reality of a specific situation.
The nurse uses judgement
in relation to individual
competence when accepting and delegating responsibilities.
CODES AND STATEMENT RELATED TO MEDICAL ETHICS :
The nurse when acting in a professional capacity
should at
that
J.
all times maintain standards of personal conduct
would reflect credit upon the profession
Nurses and society ;
The nurse shares with other citizens the
responsibility
of initiating and supporting action to meet the health and
social needs of the public.
ji. Nurses and Co-workers ;
The nurses sustains a co-operative relationship with
co-workers in nursing and other fields.
41
:
The nurse
the
41
takes appropriate action to safeguard
individual when his care
is endangered by a co-worker
or any other person.
.
Nurses and the profession :
The nurse play the major role in determining and
implementing
desirable standards of nursing practice and
nursing education.
The nurse is active in developing a core of profe
ssional knowledge.
The nurse acting through the professional organi
zation,
participates in establishing and maintaining
equitable social and economic working conditions in
nursing."
25
■42
I
I
CHAPTER II
A.
PURPOSE OF THE PAPER
B.
ORGANIZATION OF THE PAPER
C.
ANALYSIS OF CURRENT SITUATION
D.
REVIEW OF LITERATURE
42
:
CHAPTER
A.
II
PURPOSE OF THE PAPER :
1.
This term paper is prepared in partial fulfilment
of
the
requirement of the
course in Health Care
Administration.
2.
This study,
i.e.,
legal aspects of medical negli
gence and Consumer Protection Act,
important subject.
is a very
This is the latest and
expanding movement in our country.
many develop
ments are taking place at three levels,
a)
Gove rnment :
rapidly
namely
A number of governmental regula
tions are being framed and enforced
regarding
medical negligence and consumer protection.
b)
public
is becoming more and more auara of their
new found rights and are becoming alert day by
day especially in the
c)
literate areas.
P rofessionals are very much conscious about the
impact of the Consumer Protection Act to their
profession and so they
react.
Some are in favour
of the movement and extend their support.
Others
feel it as a threat to them and their profession;
So their reaction is a negative one.
•43
:
3.
43
This subject is very much relevant to the
care services and medical profession,
applicable
to voluntary health care
health
especially
institutions.
As a student of health care administration,
I feel,
it is very important to know about this subject and
therefore
I decided to do an indepth study on this
subject.
B.
ORGANIZATION OF THE PAPER
This study is divided into nine chapters.
Chapter I includes the following aspects.
-
Introduction speaks about the topic of the legal
aspects of medical negligence and its
reference
to Consumer Protection Act.
- The second part explains in brief about the medical
care services,
its purpose and people.
- The third part deals with the
legal status of
medical profession and the fourth part goes on to
the demand for service.
- The fifth part is concerned with the medical ethics
with special reference to Medical Council of
India
and the international code of medical and nursing
ethics.
:
44
Chapter II explains the purpose of this paper and the
reasons for selecting this topic.
It analyses the
current situation with special reference to the past
situation.
It also speaks about the legal
remedies
that were available in the past in case of medical neg
ligence and the further remedy that is available today
in the form of Consumer Protection Act,
rature is reviewed,
1986.
The lite
concerning the topic to highlight
current reactions.
Chapter III explains the objectives of
this study
and what is being aimed at by doing this study.
The
chapter gives the methodology adopted for this study as
well as its scope.
in detail -
Chapter IV deals with medical negligence
in its first part-emphasising the
responsibilities of the
physicians and the health care institutions in
to medical negligence.
It also touches
relation
on the various
liabilities concerning the medical profession as well as
the institution under various circumstances.
The
also deals with the various legal interpretations
The second part of the chapter explains the
and defences in
relation
chapter
in brief.
litigations
to medical negligence affecting
the medical profession and
the hospital services
at home
and abroad.
•45
:
45
Chapter V tries to explain the Consumer Protection
Act,
the legal views related
views of
are
to the Act as well as the
Indian Medical Association,
the Consumers
the patients who
of the medical care services - by the
doctors and institutions - and also the views of the
public at large.
Chapter VI deals with the
result of
carried out in different hospitals on the
the
study
topic of
medical negligence and Consumer Protection Act.
Chapter VII is an analysis of
the findings and
a discussion on it.
Chapter VIII speaks of
health care institution
the future as to how the
is going to face
this challenge;
the precautions and protections required from the side of
medical profession and the health care
institutions.
Chapter IX summarises the study in brief and gives
the conclusion.
Following the nine
chapters a re
the
references,
bibliography and the appendics.
4-6
:
C.
ANALYSIS Or
46
CURRENT SITUATION
Plan is a social being and not an island.
He
lives
in society where he needs each other and owes a duty towards
one another,
so that,
he does not
neighbours and other members of
commission and omission,
i.e.,
injure the others - his
the
society - by acts of
by doing what he should not
have done and not doing what he should have done.
human,
Being
But if he delibe
he is prone to make mistakes.
rately or negligently causes an injury to the other,
he
then
can be punished by law for breaking the natural law
of his duty towards one another.
When we cause an injury to the other by failure of
our duty negligently,we are
liable.
the law of torts/civil wrong.
in the medical
It is abranch of
When a negligence occurs
field by a medical person,
it is called
the medical negligence which again is a branch of negli
gence in general.
According to Charaka,
hi? patients as his own
every doctor should consider
children,
and care
the same sentiments and dedication,
to be suffered by them
Council,
for them with
not allowing any harm
^the patients).
The
Indian Medical
a statutory body consisting of doctors,
the doctors that the prime object of
exhorts
their medical pro-
47
:
Fession is to
47
render service to humanity and not financial
gains which should oe a secondary consideration.
In
reality today,
we
see that both these
dations are taken very lightly.
recommen
Ue see and witness a
certain amount of infidelity by the medical professional -
to the sacred Hippocratic oath pronounced by every doctor
and
the Florence Nightingale's pledge pronounced by every
nurse - at the time of their graduation.
Medical negli
gence is so common and frequent these days.
In such situations of medical negligences the
patients had
could get the
two options in the past,
redressal of their grievances.
approaching the I’ledical Council of
was the
through which they
One was by
India and the other
legal remedy.
Legal remedy ;
From the legal point of
view the
doctors who were negligent were open to both criminal and
civil liabilities.
Criminal liability
is "when it
is proved
that the
doctor has committed an act or made an ommission that is
grossly
rash or grossly negligent,
which is proximate,
direct or substantive cause of the patient's death,
the doctor is punishable under section 304 A
of
then
Indian
Penal Code.
......... 4B
48
Civil Liability
arises in case of medical services
rendered on payment of a fee which comes within
view of sections 73 and 74 of
Law of
the
the
Indian Contract Act".
torts ; Apart from the
Indian
Civil liability can also arise due
under the law of torts.
To this,
the per?6
Contract Act,
to breach of contract
every patient has accessi
whet her he/she oays for the treatment or not.
bility,
It
is not enough for the patient to prove that the doctor was
negligent;
care,
he has to prove that the doctor owed a duty of
but he deviated from the duty and as a
patient suffered harm.
result,
the
In this law of tort the emphasis
is on the injury/harm suffered by the patient and the
monetary compensation for the harm/injury suffered by the
patient,
provided the patient,
is able to prove the breach
of duty.
These legal remedies were not really appreciated by
the patients affected by the doctors'
negligence as this
legal remedy is a time consuming process;
whole
lifetime,
it may take the
sometimes even extending to the next gene
ration where the legal heirs of the patient have
on with the
case before justice
is obtained.
to carry
Secondly,
it was a very complicated process as the complainant had
to file a case and then go through all the formalities of
inquiries,
etc.
the trial with cross examination,
Thirdly,
re-examination,
the complainant had to pay a court fee
(a certain percentage of the amount demanded as
compen-
49
:
This
sation).
49
uas not enough;
the patient/plaintiff had
to employ a lawyer to plead his case which means trouble
of searching for a good one and
paying the
lawyer's fee.
the cost involved in
For all these
reasons
the legal
remedy was a costly affair and complicated and time
ming one,
and after all these the plaintiff could never be
sure that he/she uas going to win the case;
he/she
of
wins,
and even if
he/she may not be alive to enjoy the fruits
legal battle.
lity;
consu
So very few availed of this legal faci
and the others
remained at the back and suffered
their problem in silence.
The second option that was available for justice
and remedy was by approaching the
where
Indian Medical Council
the plaintiff could complain about the doctor and
ask for justice.
But here if the Medical Council found
the doctor negligent,
the maximum they could do was to
punish the doctor by de-registering his name and
his
licence to practise as a doctor.
beneficial to the patient.
by the Medical Council.
of
The damage
This
removing
remedy uas not
is not compensated
So very feu came foruard to avail
this option.
In the meantime,the medical negligence kept on
mounting.
Numerous are the patients who suffered the damages
50
:
50
and injuries,
even dealth but very few could have access
to justice.
The
remaining suffered in silence - especially
the poor and
the
ignorant who considered it as their fault.
Some
knew it was
injustice but could not afford the
legal
battle.
Open any newpaper or any periodical; they bear wit
ness to a number of medical negligences of doctors and
institutions in the public sector as well as in
sector of health care service.
the private
There may be a certain
amount of
exaggeration in those
the media,
and one
cases that comes up
in
got to take them with a pinch of salt.
But there will be a lot of truth too.
those uho/afford will publish the
Even here
too only
cases in the media and
an
the others remain in the dark.
Let us have a look at one of the
recent judgements
made by the Madras High Court awarding Rupees 17.35 lakhs
in damages to Mr.Chandrasekar,
a former table tennis
champion for serious consequences of a simple operation.
(This
case
was b.rought out by the
Indian Express - Bangalore
on the 26th May 1993 in its front page).
It certainly
makes amends at personal level for grave medical lapses.
But it also lays down a precedent
might apply to such'cases
setting principle that
in the future.
No cash compen-
51
:
sation can
51
repay or make up for the serious and permanent
physical and mental disability.
promising career,
an operation
Mr.Chand rasekar,
with a
was virtually reduced to a cripple after
which was supposed to be a simple one.
a long battle,
the
court upheld the
on the part of the doctors.
After
charge of negligence
The judgement was an encoura
ging one which makes the medical profession more accounta
ble to the
individual patients as well as the community
and society at large.
Mr.Chandrasekar could perhaps afford such long
legal battle.
But majority of our patients and
their
relatives are not in a position to fight out their grie
vances in the
law court,
in a similar manner and gain
justice.
But what else can they do?
approach
for help?
Whom can they
How can they have access to justice?
In similar situations,
the Consumer Protection Act can
be a soothing balm for the individual patients and the
public.
Bringing the medical profession under the perview
of Consumer protection Act may bring a
lives of these poor and
society.
ignorant and
ray of hope
into the
less priveleged of our
The Consumer Protection Act could be a means to
make the doctors/medical professionne1 and the
institutions more accountable
and
health care
responsible for their
actions.
52
:
In
52
the past too,
of patients and
negligence.
thousands
relatives who had been victims of doctor's
Hut
to legal battle
uere hundreds and
there
they were notin aposition to have access
like Fl r. 0 hand rase ka r and feu others.
Some
try to attempt legal battle selling all they have
uith a
determination to have justice.
really
will have
I wonder how many
the patience to persevere till the end?
Let us go over the case of Aswini Rane of
Bombay
who was more successful in giving birth to a sweet little
baby.
the
can neither play nor talk with it - after
But she
caesarean operation on 23rd April 1990.
Now all that
she can do is a little more than open and shut her eyes and
lie on her back
After three years Aswini still
has a feeding tube passing through her nose and
stomach.
Her three year
Another tube helps her pass urine.
old son Akshay sits near her and says,
mummy talk to me."
please make my
Aswini's husband Ashok Rane,
a job in the distant suburbs,
her bedside.
"God,
into her
Rajaram S.
who has
spends some hours everyday by
Parah,
a small photo studio near Dadar,
Aswini's father,
has exhausted
and had a heart attack few months ago.
He
who owns
his savings
scent Rs.4.25 lakhs
on Aswini's treatment and has sought a compensation of
Rs.10 lakhs.
we do not
"Her horoscope says she
know when,"
he says.
will be
well but
27
53
:
These are
53
cases just two out of hundreds,
brought to the broad day light.
that is
What happens to the
rest?
Perhaps the Consumer protection Act can be an answer to
the question as the Act aims or "seeks to provide for
better protection of the
the purpose,
interests of
consumers and for
to make prevision for the establishment of
consumer councils and other authorities for the settlement
of
consumer dispute's and matters
connected therewith.
It seeks to promote and protectithe
It seeks the
rightd of
consumers.
rights to be promoted and protected by the
Consumer Protection Councils to be established at the
Centre and States.
It seeks to provide speedy and simple
redressal to consumer disputes.
A
quasi-judicial machinery
is sought to be set up at the district,
levels.
State and Central
These quasi-judicial bodies will obderve the
principles of natural justice and have been empowered to
give
reliefs of a specific nature <aed—tro—a-we-rd-.
appropriate,
Wherever
compensation is given to the consumer.
Penalties for non-compliance of the orders given by the
quasi-judicial bodies have also been provided."
28
Consumer Protection Act is the latest Act and the
Consumer movement is the
latest movement in the country
and it is a rapidly expanding one.
because
it provides a speedy
It is expanding rapidly
redressal compared to the
54
:
54
never ending civil cases.
The procedure is very simple
and the process is very cheap
compared to the complicated
and expensive formalities in the
law courts.
need of a lawyer to plead for you,
court fee.
pay the
cross-examination,
There is no
nor is there need to
One need not go through the ordeal of
re-examination, etc.
All that is
required
is to write the petition/complaint on plain paper giving the
details and the compensation expected as well as the address
of the doctor or the Hospital that has
caused the injury/
The complainant can either give it personally or
damage.
send it by post to the appropriate forum,
district forum if
lakh rupees
i.e.,
to the
the compensation sought is less than one
(recently revised to five
lakhs);
to the state
forum or state commission if the compensation demanded is
between five lakhs to twenty lakhs and to the national
commission if the compensation goes above twenty lakhs.
Once the petition is sent to the disputes redressal forum,
the forum takes care of the
rest and makes sure that the
consumer is provided with justice.
A
recent
ruling in April 1992 has brought medical
services and the doctors in the private sector under the
ambit of the Consumer Protection Act.
doctor in
The
India was equivalent to God.
Indian patient
had immense
In the past the
"Vaidyo Narayanu Hari".
confidence
in the doctor.
55
:
55
But today that is not the case.
care
Many doctors and health
institutions have drifted away from the original
ethical aspect of the profession which has affected the
trust the patient had in
do not
the doctor.
Today the patients
consider their doctor as a Hari or Narayana;
react to the impersonal;
they
dealings
unethical and commercial
of the medical professional by demanding justice and their
due
right.
As the doctors and the medical profession are brought
under the purview of the Consumer Protection Act,
there is
a very strong reaction by the Medical Community.
They feel
threatened
(except for few who feel that the
not affect an upright medical person),
strongly.
C.P.A.
will
and they protest
They have challenged the C.P.A.
by
filing their
petition in the Supreme Court asking the Supreme Court to
exempt them from the Consumer Protection Act.
The Supreme
Court has accepted the petition but has not yet given a
decision.
the
There is a certain amount of uncertainity about
result of this case pending
got to wait and
in the
Supreme Court.
Ue
see what the Supreme Court is going to say;
how it is going to respond.
D.
REVIEU OF LITERATURE
:
P.H. Addision says,
"Medical negligence
is a compli
cated subject and the liability of the doctor will always
depend upon the circumstances of the particular case."
29
56
56
:
Regan and Moritz says about medical negligence
"A physician must treat bis patient in a manner consistent
with the standard of practice,
aceepted methods
utilizing
and procedures in diagnosis and in treatment.
He must
possess and exercise that degree of skill and care
is
which
commonly and ordinarily possessed and exercised by the
other reputable practitioners in the community in the case
of
similar cases.
It is immaterial whether the patient
is being treated gratuitously or for a fee."
Bernard Knight says,
called
'malpractice'
30
"Medical negligence
was formerly
medical negligence
is no
different in law from any other type of negligence;
from the fact that the
apart
courts adopt more sympathetic and
lenient view towards the doctor than other types of defen
dant - a fact not appreciated by many doctors,
believe that the
reverse
is true.
Negligence, medical or otherwise,
known as a tort,
tion,
is a civil wrong
a difficult concept to describe.
a doctor may be held in bre'ach of contract,
professional behaviour
the
who tend to
falls short of the
contract between him and
the patient.
Tn addi
if
his
requirements of
For negligence
57
:
57
of any kind to be proved,
(i)
it must be shown that :
that tile defendant (.doctor)
care to the plaintiff
(ii;
owed a duty of
(patient;
that the defendant was in breach of
that
duty.
(iii)
That the plaintiff suffered damages as a
result."
31
M ihi r Desai in his article
and
law'
says,
'Medical malpractice
"Medical negligence is a branch of the
law of negligence which in turn is a branch of
of torts.
ment.
law
The tort (Law is not based on any act of Parlia
It is mainly a judge made
law developing over the
years through changing judicial decisions.
possible
the
It is not
to define torts but broadly speaking tort is
a wrong done by one person to another for which the law
provides a remedy.
The idea is to monetarily compensate
the victim rather than punish the offender as would be
the
case
in criminal law.
doctor's negligence causing death of a
such as
patient,
It includes disparate events
defamation of a person
of the offender are not very relevant.
etc.
The motives
The focus is on
the victim.
58
:
A person
53
is said to be negligent when she/he
acts
without due
care
her action.
When we say that a person has been negligent,
in
regard to harmful consequences of his/
we are saying that she/he acted in a way that she/he ought
not to have acted.
ought to have
acted.
This assumes that we
know how she/he
The way in which we
consider that
she/he ought to have acted is the norm or standard which
entitles us to condemn the person for being negligent when
she/he fails to comply with the standard."
32
Dr.U.Brahma Reddy says about medical negligence,
"A doctor is deemed negligent when it is established that:
the doctor owed a duty of care to the patient;
was
as a
in breach of the duty:
result.
negligence,
care.".1
the doctor
and the patient suffered damages
An error of judgement
does not amount to
had the doctor exhibited reasonable degree of
33
As per the article in Health for the Millions,
December 1992 - Vol.
is defined as want of
XVIII.
No.:6,
"Medical negligence
reasonable degree of care and skill
or willful negligence on the part of the medical practi
tioner in the treatment of a patient with whom a relation
ship of professional attendant is established so as to
to his bodily injury or permanent disability or loss of
life." 34
59
lead
59
:
Dr.
a
Pritam Phatnani says,
"(Medical) negligence
legal concept and comes under the
'B'
suffers harm,
'A'is said to be negligent.
are three basic ingredients.
(b) dereliction of duty
(c)
Thus legally,
there is no dereliction of duty.
harm coming to patient due to such
the doctor is not negligent."
if there is
For instance,
syringe,
not sterilised before giving injection,
Mason J.R. and
there
patient suffers damage directly
if hands are not scrubbed and needle,
?
Thus,
Duty of care to patient
(a)
due to the dereliction of duty.
no damage,
'a'
When
and there is a breach in duty and
'B'
owes duty of care of
law of tort.
is
forceps are
and if there is no
'malpractice'
legally,
35
H.A. Me Call Smith
says,
"in deter
mining whether there has been negligence in medical treat
the courts pursue the same line of inquiry as they
ment,
pursue in any other similar claim:
did the conduct of
the defendent amount to a breach of duty of care which he
owed
to the injured plaintiff?
ently,
Expressed somewhat differ
this amounts to asking whether the standard of treat
ment given by the defendant fell below the standard expected
of him by the
law and whether there was,
fault in the legal sense.
underpinning of the
law in
strict liability may be
therefore,
any
Fault remains the theoretical
this area until such time as
imposed."
36
60
60
Chacko in his article on medical negligence says,
T.
"A person who holds himself out as a medical practitioner
impliedly undertakes that he
is possessed of the
skill and knowledge for the purpose.
the patient certain duties,
requisite
Such a person owes
namely,
a duty of care in deciding whether to undertake
a)
a case or not;
a duty of care
b)
in deciding what treatment
to give;
a duty of care
c)
in the administration of that
treatment
and a duty of
d)
care in answering questions put
to him by the patient,
which he
in circumstances in
knows that the patient intends to rely
on his answer.
A
breach of these duties will support an action for
negligence
oy the patient.11
An article by F r.
"A
37
P.D.
Mathew and P.M.Bakshi says,
person is said to be negligent when she/he acts without
due care
in regard to the harmful consequences of her/his
action.
A physician,
profession,
surgeon or other member of the medical
if he has not exercised
reasonable
care in the
61
61
treating of a patient, may be
Uhile
the degree of care
facts of each case,
liable to a negligent suit.
to be exercised depends on the
it is generally presumed that the test
is the standard of the ordinary skilled person,
and professing to have tnat special skill. 1
Consumer Protection Act :
Protection Act is an Act
exercising
38
The Act says,
"Consumer
to provide for better protection
of the interests of consumers and for that purpose
to make
provision for the establishment of consumer councils and
other authorities for the
settlement of consumer's disputes
and for matters connected
therewith."
39
It provides for better protection of the
of consumers and for the purpose,
interests
makes provision for the
establishment of consumer councils and other authorities
for the settlement of consumer disputes and for matters
connected therewith.
"It seeks,
.
inter alia,
right of
consumers such as;-
(a)
right to bo
the
to promote and protect the
informed about the
standard,
quality,
quantity,
and price of goods to
potency,
purity,
protect
the consumer against unfair trade practices;
:
(bj
the
right
62
to be protected against marketing or
goodswnich are hazardous
(cj
tne
to
life and
property;
right to oe assured wherever possible,
accesss
to an authority of goods at competitive price;
(d)
the
right to be heard and to oe assured that
consumers'
interests will receive due consideration
at appropriate forums;
(e)
the
right to seek redressal against unfair trade
practices or unscrupulous explanation of consumers;
and
right to consumer education.
These objects are sought to be promoted and protected
by the
Consumer Protection Council to be established
at the Central and State level.
To provide speedy and simple
disputes,
redressal to consumer
a quasi-judicial machinery is sought to be set-up
at the District,
State and Central levels.
These quasi
judicial bodies will observe the principles of natural
justice and have been empowered to give
nature and to award,
consumer.
reliefs of a specific
wherever anpropriate,
compensation to
Penalties for non-compliance of the orders given
by quasi-judici al bodies have also been provided."
Sudhir Vyas says in D.H.News service,
"the decision
(of the National Commission) has put Medical Practitioners
in a quandray.
" We are not worried simply because the
63
63
the decision will cause unnecessary harassment to doctors
but because ultimately,
Dr.
I.M.Modi of
society will have
to suffer" says
the Ahemedabad Medical Association."
Indian Express of 26/5/1992 says,
/i n
"Intricacies of medical
practices cannot be understood by the consumer forutn oh-quasi-judicial bodies as there can be no standard to esti
mate a doctors'
quality of service," said Dr.
who also warned
Chairman of Progressive Medicos Forum,
that
J.3.Sood,
if the medical services were brought under the Act
doctors might
refuse to treat serious cases.
doctors accountable to their job,
To make the
every death allegedly
do to mishandling or negligence should be investigated by
a special medical board.
Medical treatment cannot be equated
with commercial services like banking,
42
or transport."
finance,
insurance
"The medical profession cannot be held under a constant
threat of legdl action.
Soliciting medical treatment is
like hiring a personar-lised service and
risk.
To describe a patient as a
would prove detrimental to the
'customer'
43
17th March 1992 says,
Mr.Ravindra Naryan,
a lawyer,
or 'client'
interests of society in which
doctors are held in high esteem."
Hindustan times
is at the patients
"According to
the difference between the
..........64.
Consumer Protection Act was that in
normal law and the
C.P.A.,
the
can directly go to the
Consumer (patient)
consumer court for comnensation for negligence,
without engaging a counsel.
and can
He
get an early decision."
has to pay no court fee
44
The V.H.A.I,
publication on medical negligence
Issue
the public says,
before
"The issue of consumer
rights has become an important issue during the
couple
The
of
years.
for the first time
In 1989,
Consumer Protection Act
if any,
(C.P.A.),
last
India,
in
1986 provided
consumers a forum for speedy redressal of their grievances
ranging from defective household applicances to medical
services.
lation and
-
The C.P.A.
is a piece of
comprehensive legis
recognises six rights of the
Right to safety;
Right
Right to be heard;
consumer,
to be informed;
Right to choo^se;
Right to seek redressal;
to consumer education.
namely:
and Right
The consumer with complaints can
approach commissions at the district state and^central
.levels.
There are no court fees and the
not have to go through lawers."
Dr.C.M.Fran cis,
August
1992 asks,
consumer does
45
in his editorial of Health Action of
"By denying the cheaper and quicker
redressal method to those going to Government hospitals,
......... 6$
:
are we not denying the
65
right to
redressal of grievance
to the poorer sections of humanity?"
Chandra Kannapiran,
VHAI says,
with
"There
the
information officer to
is definitely a serious cause of concern
regard to consumer redressal forums.
Public minded,
competent oeople with integrity are already there,
politicization and infiltration of vested
be avoided.
These forums
tial that consumer organizations,
There
It
is most essen
while upholding the
condemn any frivolou£s
should strongly
and malicious complaints
interest should
could become a tool for exploi
tation against the medical profession.
rights of consumers,
but
against medical practitioners."^^
is probably a need for incorporation of a
provision in the Act for very strong action against
complainant where complaint
malicious.
the patient.
is found to be frivolous or
There is scope of misuse.
prevail in taking up
issues
the
Prudence should
to the consumer forums by
It should be properly
scrutinised before
the'consumer court takes up the cases.
There should be
accountability on the part of the medical profession.
Society expects a certain degree of efficiency and certain
norms of service to be established and maintained.
Consumer
courts could include medical persons with com-etence and
66
66
integrity.
Indian penal codes
Pledico-Laga 1 forums and
which deal with medical cases should be streamlined,
strengthened and simplified.
Ganu Naik,
Association;
India Radiology
Vice President of All
Ex-president of
Bombay says,
I.M.A,
Ue doctors are not here to kill out
profession is noble.
to cure,
permanently or atleast temporarily.
the Act,
we are portrayed as villains,
wise.
Accusations are
safer contrast dyes.
. , .
x •
the slightest
highlighted to its
And we are unjustly labelled
we will have to use the so-called,
sive,
o
seven^timss-more-expen-
The results?
xx
x-
x
more waiting time for the patient."
S.C.Chakrabarty (Nagpur)
More expenses,
48
says,
"In the
doctors who become notorious while practising,
bad name due to their greed,
up
the
(hauled up)
of the noble profession.
case of those
causing a
chances of being hauled
for negligence or malpractice cannot be
they should be
Because of
unless proved other
hurled against us;
mistake is politicized, publicized,
sensational limit.
"Medical
ruled out,
and
because they are the black sheep
I he entire medical fraternity
need have no fear just because a few will land theoselves
in. trouble.
The
Indian Medical Association would do well
67
:
to exhort its members
as in the past,
67
to be as dedicated and since re
rather than to Fight a losing and prolonged
legal battre prompted by an ego problem."
Juliet Nathwani,
Uombay says,
"The
a consultant psychiatrist,
from
inclusion of medical service under the
will evidently create a sense of
C.P.A.
49
security and deep
satisfaction in the fraternity of patients who will feel
assured that all possible caution and care
will be exercised
in the delivery of medical services since doctors
will be
made more accountable.
Medical personnel who are diligent,conscientious,
straight-forward and ethical would be unaffected
Act.
However,
on the acguisition of success and fame,
there is a tendency to display,
abruptness,
by this
a certain degree of
arrogance
distance and non-communication towards patients.
The Act would be a preventive measure to the development
of such an attitude.
Gross negligence
would,
of
course,
be
avoided and there would be a distinct improvement in hospital
services.
The ultimate goal should be patient satisfaction
and that itself is a very rewarding,
litigation-free expe
rience.
68
-i 68
it is advisable,
However,
too,
that patients do not
turn very militant as that would be counter productive."^
K.B.Grant,
"I think it
Trustee,
Pune,
says,
should be a mutual arrangement on both sides.
In a consumer court,
However,
Ruby Hall Clinic,
a consumer seeks compensation.
the doctor is proved not
if
guilty,
then he should
given the same amount of compensation that the patient was
claiming - to compensate for the
slur on the doctors
tation.
Doctors should be judged,
must be
guarded against.
affair."
but
repu
superficial claims
It should not became a one sided
51
Sanjeev Mulekar,
a Dermatologist,
Bombay,
says,
"I am glad that the Consumer Protection Act will be applied
Unfortunately commercialisation has crept into
to doctors.
our profession and a dissatisfied patient finds redressal
time-consuming,
doctors'
conscience is clear,
After all,
replaced,
expensive and frustrating.
he
As long as
should not be afraid.
the human body is not a machine that can be
come what may."
52
"The Consumer Protection Act should be clear
and concise.
judge,
If it is left to the interpretation of the
then that might be dangerous
because the personal
69
:
69
bias of the judge is bound to creep in.
If the Act does not
clearly state the subjects
it covers and doctors feci they are in a tricky situation,
then
in order to play it safe,
all types of
they will stop accenting
cases and this will harm the doctor-patient
re lation ship.
But if it is clearly stated
can take
legal action if the
or unscrupulous,
ssion should
then
I
that the consumer
certainly feel the medical profe-
come under the perview of this Act."
Justice Alladi Kuppuswamy says,
is treating a patient
see him in the
On
53
"Every doctor who
is afraid that the next day he may
court along with a lawyer.
This is because
of the possibility of taking medical negligence
consumer court.
dishonest,
doctor is negligent,
cases to
This makes him defensive and nervous.
the other hand,
without consumer court,
the patients
injured through negligence may never get justice."
Thus
54
there is a variety of ppinions with respect to
the Consumer Protection Act.
70
CHAPTER III
OBJECTIVES OF THE STUDY
METHODOLOGY
SCOPE OF THE STUDY
- STUDY OF DECISION OF COURTS
70
CHAPTER
A.
III
OBJECTIVES
1.
To study the legal aspects of medical negligence
as it affects the patients (the public)
and the
medical profession and health care institutions,
Medical negligence is an act of omission or
commission by a medical person which is considered
improper by a doctor of average prudence.
results in harm or injury to the patient,
If it
the doctor
(or the health care institution) may become liable for
d amage s.
From the legal point of view,
health care institutions are remiss
duties or commit lapes,
if doctors or the
in performing their
they are open to both criminal
and civil liabilities,
When there has been injury or harm as a result
of the negligence of the doctors / health care insti
tutions the patient
can avail the services of the
criminal / civil court or can approach the
Indian
Medical Council or can approach the Consumer fortynfor
the remedy / redressal (for pecuniary and non-pecuniary
damages).
71
71
2.
To study the Consumer Protection Act as it applies
to medical services,
when there is a defect or
deficiency of service.
According to Consumer Protection Act the
consumers
are
-
persons who buy goods for a consideration and
consumption;
and
persons who hire
services for a consideration.
Consumer forum assures the
consumer that the goods
that are defective will be corrected of its defect
replaced;
inury caused
as well as compensation for the damage or
(by the producers of those
goods).
Services
of any description made available to the user comes under
the purview of the Consumer Protection Act.
Any person
who hires these services by paying a consideration (fully/
partly
or promises to pay the charge) by fees,
beneficiary is a consumer.
services,
and even
If there is a defect in these
the consumer can file a case to the
consumer forum
and claim compensation.
The act defines service as
service of any description
which includes the services rendered by the medical profe
ssional / health care
institutions - who makes their services
available to the public and are taking a remuneration.
They
7.2
:
must,
72
therefore, pay compensation if there is a deficiency
in their services.
3.
To study the impact of the Consumer Protection Act on
medical negligence and the doctor - patient relationship.
Negligence by itself is not enough to establish lia
bility.
There must be an injury caused by the negligence.
It is upto the consumer to prove that there is a direct
cause-and-effect relationship between the negligence
and
the injury caused.
Medical profession and the health care institutions
who consider the Consumer Protection Act as an opportunity
(and not a threat)
to maintain their values and improve
their standard will be more careful and avoid negligence,
to the extent they are avoidable.
The doctor-patient relationship
by ethics of trust.
was characterised
To-day there is a certain amount of
loss of trust between doctor and the patients.
of
4.
trust is being replaced by the ethics of
The ethics
rights.
To examine the possibility of doctors resorting to
"defensive medicine" and other measures for their
protection against possible
litigation.
While Consumer Courts are a great help to
reduce the
73
odds that are heavily stacked against the
consumer,
it can lead to defensive / Protective medicine
by the doctors.
those
Indian health
The medical profession may shy away from
cases that are potential ones for litigations.
order to protect themselves,
may investigations.
the doctors may order too
Potentital medico legal cases have the
chances of going unattended.
waiting before
In
Patients may/can be
really being attended to.
kept
The doctors may
also take up more insurance to provide for contingencies.
All these lead to increase
the poor will be the
5.
in the cost of medical care and
ones whom it affects the most.
To consider changes in the Consumer Protection Act,
to
make it more acceptable to all parties concerned and
to reduce pit-falls and drawbacks.
Always changes are susceptible to reactions.
changes may be necessary to improve the legislation,
Certain
and
make the Consumer Protection Act better and more acceptable
to all parties.
The Consumer Protection Act must be a balancing point
between the
consumers and the providers,
concerned.
It should not be the
and be fair to all
licence for the consumers
to be frivolous or vexations or even mischieveous.
-
: 74-
:
-
Services remain services and there can be no
difference
in its value,
renders it.
no matter who provides it/
Whether he pays for the services or not,
the consumer is a consumer.
At present the Act applies only to doctors and
health care
institutions in the private (including volun
it excludes services provided free of char
tary)
sector;
ges.
Government doctors and Government hospitals are
outside the purview of Consumer Protection Act as the
services rendered are considered free.
provisions of
These and other
the law need changes such as bringing the
Government hospitals and its doctors also under the purview
of the Consumer Protection Act.
B.
METHODOLOGY
The methodology of this study is as follows :
1.
Review of literature
Review of literature is essential for conceptual
clarity and for an analytical reflection on the problem.
Keeping this in view,
an extensive review of the literature
on the subject was done by reading and analysis the diffe
rent books,
journals,
reviews related to medical negligence
and the views of various organizations and experts regar
The theoretical frame
ding the Consumer Protection Act.
work has been formulated by reviewing literatures and having
discussions with the experts in the field as well as people
whom the topic affects the most,
trators of hospitals.
tical frame-work,
namely doctors and adminis
Based on the
conceptual and theore
a comprehensive questionnaire was prepared
to gather the opinions and view of the
administrators and
doctors of different hospitals.
2.
Questionnaires
Views and opinions were collected from administrators
and senior doctors working in three hospitals in the volun
tary sector,.where services are provided mostly on payment,
though there is a large amount of free case.
(questionnaire
follow).
The questionnaires were issued to each administrator
and doctor personally at their own area of work.
waiting to introduce myself and the purpose,
the questionnaire to the doctors,
While
hnd then issue
I had the opportunity for
close observation of the doctors dealing with the patients.
Sufficient time was given to answer the
questionnaire.
The questionnaire uas collected personally.
All the adminis-
-
: 7C
:
-
trators and some of the doctors were interviewed to
support the answers in the
questionnaire - to see the
co-relation between their answers in the paper and in
person.
The administrators and doctors to whom these ques
tionnaires were administered
are
working in three chari
table and voluntary hospitals located in the same
They have varying bed strengths (300 - 800 beds).
samples were collected from the specialists,
hospital A,
20 from hospital 8 and
city.
Sixty
30 from
10 from hospital C;
this reflected the inpatient bed strengths.
3.
Visit to the State Commission
In order to gather information
of cases filed in pursuance of the
regarding the number
Consumer Protection Act,
that would be
current and accurate,
was visited.
Discussions and interviews were held with
reliable authorities.
the
the State Commission
Statistical data were obtained from
Commission with respect to cases filed,
disposed off
and pending.
4.
Study of medico-legal case files
To strengthen the understanding of medical negli
gence and the mode of action by the plaintiff
I
as well as
respondents,
I went through some medico-legal case files
in a hospital where cases were on process.
C.
SCOPE OF THE
STUDY
Fledical negligence
cate one too.
is an ancient problem and a deli
Consumer Protection Act
(the latest mode of
redressal of grievance to this ancient problem)
is the most
recent Act passed by the Parliament.
latest move.
ment in the country,
one of
Being the
the limitation to this study was
a certain lack of availability of material on the topic of
medical negligence and the use of Consumer Protection Act
to obtain
relief.
This paper limits itself to the
analysis of
responses
administration and
to sixty questionnaires by specia
lists and three hospital administrators and two medico
legal cases.
The patients (and their relatives/dependents) repre
sent an important part of those affected by medical negli
gence and Consumer Protection Act.
on their perceptions and
No survey was conducted
responses due to constraints of
time.
In spite of the above limitations,
the Study was
wide enough to give information regarding the application
of
the
law for Consumer Protection as it affected medical
negligence,
a deficiency in the service provided by the
medical profession and
the health care institutions.
CHAPTER IV
MEDICAL NEGLIGENCE
- DEFINITION OF MEDICAL NEGLIGENCE
- RESPONSIBILITIES OF THE PHYSICIAN
- RESPONSIBILITIES OF THE INSTITUTION
- LIABILITIES OF MEDICAL STAFF, OTHER
STAFF AND THE INSTITUTION
- VARIOUS LEGAL INTERPRETATIONS
LITIGATIONS AND DEFENCE
: 79
CHAPTER
A.
IV
MEDICAL NEGLIGENCE
tvery doctor who proposes to practise medicine
takes the
'Hippocratic*
oath modified binding himself
or herself to observe the code of ethics contained in
it.
This is hou the ancients thought to ensure high
standards from the medical practitioners.
the ancidnt days,
these days ub often come across
doctors who do not follow the code.
a few are callous,
but, unlike
Some are negligent;
greedy and unethical in the profe
ssion giving the impression that they have taken a
'hypocritic*
oath.
oath instead of the hallowed 'Hippocratic*
Many are the victims of such medical practitioners.
Vast majority of them are poor and ignorant who suffer in
silence.
Do they have any legal remedy against the
negligence of a medical practitioner?
What is the lia
bility of a doctor who causes death, or serious mental
or physical injury to the patient through his/her neg
ligence?
I,
We shall examine them.
Medical negligence
"A branch of the civil wrong is known as negli
gence in general.
ligence,
A sub-branch of this is medical neg
which deals with the situations,
in which
...J30
: 80
a physician or surgeon or other member of medical profe
ssion may have to pay compensation,
cised reasonable care.
if he has not exer
The degree of care to be exercised
depends on the facts of each case.
However,
in general,
it may be stated that the test is the standard of the
ordinary skilled man,
that skill.
exercising and professing to have
If a medical man fails to measure up to that
standard in any respect,
he has been negligent and has to
pay compensation to the person harmed by him.”
55
1, Duties of Care
This principle becomes applicable when the doctor
accepts a patient,
whether the doctor accepts fee or not,
whether he is a private practitioner or
general practitioner or a specialist.
medical advice or treatment,
a public servant,
A person who offers
impliedly undertakes that he
has the required skill and knowledge.
Such a person owes
to the patient certain duties of care.
a.
duty of care to decide whether to take in a patient;
b.
duty of care to decide what procedures to adopt in
diagnosis and treatment;
c.
duty of care in administering the treatment;
and
d.
duty of care in giving adequate information
to the
patient or,
in the case of the incompetent patient
to the close relations.
....81
-
:
81
:
-
A breach of any of these duties makes the doctor
liable to a suit by the patient.
"A practitioner must possess a reasonable degree
of skill and knowledge,
degree of
care.
and must exercise a reasonable
A doctor is not to be held negligent,
simply because something went urong.
Sometimes,
inspite
of taking every Reasonable precaution things go amis in
surgical operation and medical treatment.
He is liable
only when he falls below the standard of a reasonably
competent practitioner in the field."
2.
Standard of Care
In India the standard of care expected..ofa doctor
has been succinctly laid down by the Supreme Court as under:
"...........
A person who holds himself out to give medical
advice and treatment,
ssed
impliedly undertakes that he is posse*
of the skill and knowledge for the purpose.
person, when consulted by a patient,
certain duties,
undertake
viz.,
the case,
Sucha
owes him (to the patient)
a duty of care in deciding whether to
a duty of care in deciding what treatment
to give or a duty of care in the administration of that
treatment.
A breach of any of those duties gives a right
of action for negligence to the patient.
The practitioner
must bring to his task a reasonable degree of skill and
82
: ■ 82
knowledge and must exercise
a reasonable degree of care."
57
The Supreme Court adds that neither the highest
degree of care is required,
care enough.
care and
nor is the lowest degree of
What is required is a reasonable degree of
competence,
judged in the
light of the circumstances
of the case.
Depending upon the time, place, patient as well as
the doctor himself, the standard of care to be exercised
by the doctor differs.
For example,
which took place in 1947,
knowledge of 1954,
in judging an event
one cannot apply the medical
when the case is heard.
Thus in 1947,
a particular method of keeping ampoules of anaesthetic
drug in phenol was in vogue.
This cannot be held to be
merely because in 1954, medical knowledge favoured
faulty
a different method.
Ua must not look at the 1947 event
with 1954 spectacles.
If a doctor has acted in accordance with the accep
table medical practice,
and has exercised the reasonable
he is not liable,
even of he has made a mistake in
care,
his diagnosis
or treatment.
(It does not amount to negli
gence) .
83
83
:
3.Onus of proof
If a doctor is sued
for negligence,
the patient has
to prove that the doctor was negligent, except in those
circumstances where the
negligence is so evident that
it does not require further proof.
doctor,
if he feels that he
is not
In such cases,
guilty ,
the
then it is
up to him to prove it.
Il . Types of medical negligence
Medical negligence may assume a variety of forms.
1.
Negligence in diagnosis :
A proper diagnosis of the
illness is the first duty of a medical practitioner.
A wrong diagnosis leading to any injury to the patient
may invite liability in law.
2.
Negligence in diagnostic aids :
Adequate investigations
using acceptable means of diagnostic aids
necessary
for arriving at a proper diagnosis.
It may be necessary
to consult an expert in some cases.
If there is negli
gence on the part of the practitioner to seek expert
advice in a given case, (e.g.: interpretation of an
x-ray film), the doctor may be held liable.
84
84
3.
Administration of drugs
Doctors and nurses have been
;
held liable tor negligent
administration of a drug
leading to death or injury of a patient*
4.
Failure to take precaution :
Every medical practitioner
is expected to take reasonable precaution in the treat
ment of his / her patients.
There are certain drugs
which are known to cause adverse
reaction to certain
Such drugs are to be administered only after
patients.
test dose has been administered.
Otherwise,
the doctor
can be held liable for negligence.
5.
Consent of the patients ;
intervention on the
In a surgical operation or any
body of a person,
the written consent
of the person concerned is necessary if she/he is capable
of giving it.
consent,
If she/he is unable to give such a
someone competent should be asked to do it on
his/her behalf.
If a surgeon operates upon a person
without or against the consent, he/she can be held legally
liable for negligence.
It may happen that a patient refuses to give con
sent
to an urgent life saving operation.
the doctor,
In that case,
to protect himself/herself , should place on
record the fact that the patient had been requested to
give consent but had refused to do so.
85
85
6.
Failure to give advice
liable if,
:
:
A doctor can be held legally
due to lack of reasonable skill and care,
he fails to give advice or undertake treatment which
was necessary in the circumstances.
An honest doctor
must either personally consult or refer his/her patient
to a more competent doctor if the practitioner cannot
arrive at a reasonable degree of certainty with regard
to proper diagnosis.
7.
The operation theatre
;
A number of litigations emanate
from the operation theatre.
These cases mostly relate
to negligence in respect of activities connected with
the operation process such as ;
of the theatre;
Unhygienic conditions
negligence with regard to the sterili
sation of instruments,
glowes,
linen,
etc.
preparation of the patient for the operation;
sponges,
body;
Inadequate
leaving
forceps or other instruments inside the patient's
burns or other injuries caused in the course of
treatment / operation, etc.
Utmost care and precautions are to be taken in
the operation theatre to safeguard the life and avoid
injuries or harm to the patient.
doctor or
Any negligence of the
the hospital management leading to death or
injury will attract legal liability.
86
86
8.
Post operative care ;
to take
reasonable
:
Hospital authorities are expected
care of the post operative patient.
Hospital will be held legally liable if anything happens
to the patient due to lack of
reasonable
Other forms of medical negligence
listen / pay heed
care.
are failure to
to a patient's complaints; negligent
exposure of the patient to the
risk of infection;
neg
ligence in advice about the risk of an operation or
failure to warn the patient about such risks;
staff,
111.
inadequate
etc.
Reap onsibilities of the physicians
Medical profession is considered to be one of the
It is also
most noble professions from time immemorial.
viewed as one of the most prestigeous one.
wants to be a doctor.
everybody
The patents are frantic to see that
their children become doctors.
wish to become doctors.
So
Host of the children too
Everyone is striving towards that
which is considered to bring fame and monetary rewards.
In this mad race,
some use their intellectual ability;
others make use of their financial capacity and yet others
avail the political influence.
I wonder how many are really
aware of the price that they have to pay in order to win the
..87
real prize - namely to be a 'medical-professional-doctor'!
The money paid in the form of capitation fee or the poli
tical influence or the intellectual capacity that is dis
played during the entrance examination and interviews may
provide an admission to the course.
But to be worthy of
this noble calling and to be a member of this noble pro
fession one need something more than all these - namely a
head,
a heart and the hands - a head that is capable of
thinking,
reasoning and acquiring the necessary knowledge
a heart that is capable of loving and feeling
and skill;
for the patient,
his family
and community; and the hands
that are willing to be used for the benefit of the patients.
Only then,
one can be considered a doctor / a physician.
What are the
responsibilities of the physicians?
"A physician uho,
though unacquainted with drugs and
their effects or is ignorant of the nature of dieease,
takes money from the sick (for giving treatment),
punished like a thief."
yet
shall be
58
"A person who holds himself out to give medical advice
and treatment,
the
impliedly undertakes that he is possessed of
skill and knowledge
for the.purpose."
59
88
88 :
First and forsmost
the doctor must do all that is
in his capacity to equip himself with the necessary know
ledge and skill required in treating the patients.
He must
consider it as his prime responsibility and avail every
opportunity
to acquire
knowledge and update himself for
the benefit of his patients and to maintain the nobility
of the profession.
The doctor is expected to attend to every patient
who comes to him.
He can refuse only if he is not competent
enough to meet the patient or if he has not got the facility.
A doctor is always expected to provide the first aid /
emergency treatment and then refer the patient to more com
petent person / place.
Another responsibility
the illness correctly,
diagnostic aids.
taken,
of the physician is to diagnose
using the available and affordable
A mistake in diagnosis inspite of measures
can happen for which the physician is not responsible.
Sometimes a diagnostic procedure may be considered useful;
but if the doctor anticipates
any risk by that particular
procedure / during the procedure he should avoid that
particular diagnostic
procedure after explaning
the same
to the patient or close relatives.
89
•• 89
When a patient is treated by a particular doctor,
it is his
responsibility to provide the patient (and the
relatives,
if necessary) with all the necessary information
condition of the patient,
the treatment invol
the side effects of the procedures
required and of the
regarding the
ved,
drugs,
also about the need and the type of treatment required
the alternatives available, etc.,
and get the consent of the
patient / relatives.
The doctor must make sure that the patients are
instructed properly so that there will be no contributory
negligence due to lack of instruction and information.
When a patient is taken for surgery,
it is ultimately
the surgeon’s responsibility to make sure that the instru
ments are properly
sterilised,
the physical facilities are
safe and also to see that no secondary damage is caused to
the patient.
In case an accident happens the doctor cannot
blame anybody else for it.
In short,
a physician cannot be
cannot play with someone else's life.
that he has the
He
careful enough.
He must make sure
reasonable degree of skill and knowledge
and must exercise reasonable degree of
care in all his
/
undertakings.
If things go wrong inspite of it,
then he
is not negligent.
90
90
[V.
RESPONSIBILITIES OF THE
An institution;
INSTITUTIONS
whether it is charitable /voluntary
private / non-profit / profit-making / public,
is responsible
to see that the patients are safe and secure inside the
hospital,
and in the hospital premises.
rity should ensure that the health needs
The hospital autho
of the patients
are met adequately and promptly.
The hospital owes duties
to patients and others directly,
such as proper maintenance
of buildings and grounds,
equipments and furnitures,
as well
as selection and supervision of employees, medical staff
and the agents*
When a person avails himself of hospital
facilities he expects that the hospital will provide the
necessary cafe.
He does not expect the nurses and other
employees to act on their own responsibility.
V.
LIABILITIES OF F1E0ICAL STAFF,
OTHER STAFF AND THE
Liabilities are legal responsibilities.
INSTITUTIONS:
In the context
of health care service it is something that a patient will
hold the hospital and its staff
(medical and non-medical staff)
accountable, for a damage or injury or death due to negligence.
Liability can be divided into ;
a.
personal liability or individual liability;
b.
Liability for employees and agents;
c.
Institutional liability;
d.
Joint liability for. negligence.
and
91
91
a.
Personal liability ;
Individual staff members are personally liable for
the consequences of their acts.
This liability is almost
always based on the principle of fault.
To be liable,
the
person must have done something wrong or must have failed
to do something that should have been done.
b.
Liability for employees and agents ;
Employers can be liable for the consequences of the
job-related acts of their employees or agents even if the
employer is not at fault personally,
c.
Institutional liability ;
Institutions can also be liable
for the consequences of breaches of duties owed directly to
the patients and others,
such as the maintenance of buildings
and grounds, maintenance of equipments and furnitures,
and
selection and supervision of employees and medical staff.
(1) Vicarious liability
As a general rule a man is responsible / liable only
for his own act; but there are certain circumstances in
which a person is liable for the wrong committed by others.
This is called Vicarious liability, ,
i.e.,
liability incurred fo
•92
92
another.
The most common instance is the
master for the
cases,
liability of the
wrong committed by his servants.
in these
liability is joint as well as several.
The doctrine of vicarious liability can be summed
up in the following maxims;
i)
"Qui facit per alium facit per se” - which means he,who
acts through another is deemed in law as doing it
himself.
The master's responsibility for the servant's
act had also its origin in this principle.
The
reasoning
is that a person who puts another person in his place
to do a class of acts in his absence,
he necessarily
leaves to determine according to the circumstances arise,
when an act of that class is to be done.
Consequently,
he is answerable for wrong of the person so entrusted
either in the manner of doing such an act,
or in doing
suth an act under circumstances in which it ought fiot
have been done; provided what is done is not from any
caprice of the servant but in the course of the employ
ment.
ii)
Respondeat Superior ;-
'Let the master answer'.
Employers can be liable for the consequences of their
employee's job-related acts'
whether or not the employer
93
93
is at fault.
:
Under this doctrine,
the employer can be
liable for any consequences of an employee's activities
within the
course of employment for which the employee
could be liable.
wrong.
The employer need not have done
For example,
anything
if a nurse employed by a hospital,
injures a patient by giving the wrong medication,
the
hospital can be liable even if the nurse was properly
selected,
properly trained,
and properly
assigned the
responsibility.
The superior may not be the employer.
superior is only an employee,
Since the
respondeat superior does not
impose liability on the superior.
Superiors are liable
only for the consequences of their own acts of omissions.
The employer can also be liable for those acts of omissions
under respondeat superior.
under
The liability of the employer
respondeat superior is for the benefit of the person
who is injured,
not for the benefit of the employee.
The liability of the employer does not mean that the
employer must provide the employee with liability protection
It means that the person who is injured can sue either the
employee or the employer or both.
vidually sued,
and found liable,
If the employee is indi
the employee must
pay.
94
94
If
the employee is not individually sued,
must pay.
Technically,
to get the money back;
tutions,
2)
:
the employer
the employer can sue the employee
but this is not done
by the insti
because it may affect the future recruitments.
Borrowed servant ;
If
the hospital places some of the
staff under direct control of the doctor and the staff
does not receive instruction from the hospital,
the hospi
tal is not liable for the wrongs or negligence of such
staff.
Instead,
the doctor is responsible.
This is the
doctrine of "borrowed servant".
In most of our hospitals we do not have this type
of system where the doctrine of 'Borrowed Servant* applies.
(3). Physician employees ;
When the physician is an employee of the hospital,
the hospital is liable under respondeat superior.
cases,
employer - employee
relationship must be found.
criteria for employer - employee
The
relationship is that the
hospital must have the control over the physicians
time, manner and methods.
In such
In such conditions,
for
the hospital
is liable for the acts of the physician during the course
of employ*-ment.
95
95 :
"
The hospital liability can be based on the liability
of the hospital for injuries caused by an employee's
violation of the employer's duties / hospital's duties.
(4) Hospital's duties ;
Hospitals have duties to persons that are
of
respondeat superior.
independent
To establish liability for injuries
caused by breaches of these duties it is not necessary to
It
show that an individual staff member breached a duty.
is sufficient to show that the hospital's duty was breached.
Areas in which the hospitals have an independent duty include:
i)
physical condition of the buildings and grounds :
The hospitals must exercise
reasonable care in maintaining
its buildings and grounds in a reasonably safe conditions
for all types of patients and visitors.
ii)
Selection and maintenance of equipments ;
hospital
has an obligation to furnish reasonably adequate equipments
for use in diagnosis and treatment of patients.
Problems
can arise when the hospital does not own necessary equip
ments, when the necessary equipment is not available or when
the equipment has not been properly inspected or maintained.
96
-
iii)
can be
:
96
Selection and supervision of staff ;
liable for failing to exercise reasonable care in
selecting and supervising the
staff.
This applies to both
professional and non-professional staff.
applicants,
a)
A hospital
therefore, must be carefully checked like;
licence and
training,
Credentials of
(b)
qualification - must provide appropriate
supervision and evaluation.
The hospital also has a responsibility to exercise
reasonable care in selecting and monitoring members of the
medical staff."
d. Joint liability for negligence
practice,
; Usually in hospital
there is a tendency for the consultant to bear the
largest portion of the responsibility and subsequent damages.
But there is no written law regarding the apportionment of
responsibility.
This is frequently shared between consultant
junior doctors and the hospital management.
"In general practice,
applies as between partners.
each partner
the normal rule of civil law
By the Partnership Act,
1890,
is jointly and individually liable with his
co-pprtners for all acts of negligence committed by the
firm.
Thus,
if one partner in general practice commits a
. 97
-
negligent act,
:
97
:
-
the patient may sue all partners equally
and they may all be liable in damages,
even though other
partners may have no part whatsoever in the negligent act.
It is a common practice when forming a partnership, for
there to be a Deed of
Indemnity,
which provides that if
any one partner causes such financial damage to his fellows,
he must compensate them for their loss.
This indemnity is
quite separate from the original action for negligence.”
At times the
legal relationship between the principle
in general practice and his assistant can be that of a master
and servant.
Hence the principal is responsible for any
negligence of his assistant(even though the principal
is
responsible for any negligence of his assistant)even though
the principal has not been professionally concerned.
"Uhere a principal in general practice employsan
the usual legal relationship of master and servant
assistant,
applies.
The principal is responsible for any negligence of
his junior,
though the assistant himself may be jointly liable.
Both may be sued by an aggrieved!
patient, even though the
principal has not been professionally
concerned.
It is
upto the patient to choose whether he acts against the
assistant,
or the principal or both.
The same
applies
. 98
98
whether the principal employs non-medical servants,
as
receptionists
or
dispenser."
such
62
In hospital service the relationship between the
consultant and his registrar or houseman is usually one
of joint liability together with the hospital authority.
legal relationship of the
Here the
consultant to the assis
tant is based upon the negligence of the consultant in
delegating authority to a junior not sufficiently profi
cient to carryout the delegated duty.
"In hospital service a doctor is not
for the negligence of a nurse,
of the hospital management.
responsible
which is directly the burden
If however the nurse's
injurious
behaviour was a direct result of wrong direction by the
doctor,
he might find himself jointly liable.
Outside hospi
tal in either a nursing home run by a doctor or in general
practice,
good,
the
relationship
of master and servant again holds
the doctor being liable for the negligence of an
employed nurse.
The same principle applies to medical auxiliaries,
such as radiographers,
students,
laboratory technicians,
and to the
where all these are employed in a hospital service.
.... 99
-
Unless the
:
99
:
-
wrongful act was a direct result of incorrect
instruction by a doctor,
the clinician incharge of the
patient will not be liable.
Action may be directed either
at the administration or jointly with them and the non-medical person at fault."
63
VI. VARIOUS LEGAL INTERPRETATIONS :
2,300 years ago,
treatise says,
Charaka in his immortal ayurvedic
"Ths physician should regard all his patients
as if they were his own children and vigilantly guard them
from all harm,
considering this to be his highest religion.”
It is indeed a noble thought.
And expressions of nobility
have a tendency to assume epidemic proportions.
to the treaiise of the ancient
Council of
Indian seep,
India solemnly declares in its
In addition
the Medical
'Code of Ethics*
that the prime object of the medical profession is to render
service to humanity and that the reward of financial gain
which is a sub-ordinate consideration.
But in reality the professional successors of Charaka
will confess that it is impossible to be good fathers when
they have so many children to look after,
sonable hours to put in.
and so many unrea
On the other hand,
their patients*
100
100
:
complaint is that to get a good doctor is like experiencing
a snowstorm in the Sahara!
For the profession today, medical news is mostly bad
news unfortunately - news of over stretched health system
which cannot measure up to the expectations of burgeoning
patient population;
of hospitals bending under the weight
of corruption and o ve r-bureaucratisatiot);
of doctors who have turned
doctors insensitive to suffering;
medicine into a big,
of negligent
bad business.
Certainly the
Medical Community has had many achievements,
Indian
but its bad
news - the negative side of it occupies a lot of area -
makes the big news.
Most of the good journals of today are full of facts
about the medical mal-practice.
for the patients,
infact,
It is indeed very important
it is essential for them to know
and to be aware of the medical wrong-doings.
know what is going wrong,
They must
and where things are
how they are going wrong and how to find the
going wrong,and
remedies for
these wrong-doings.
"From the
legal point of view,
if doctors are
in performing their duties or commit lapses,
remiss
they are open
to both criminal and civil liabilities.
...101
101
a). Criminal liability
arises when it
is proved that a doctor
has committed an act or made an omission that is grossly
rash,
or grossly negligent, which is the proximate,
cause of the patient's death.
or substantiative
section 304 of the
Indian Penal Code,
direct
Then under
the doctor is puni
shable with imprisonment for a term that may extent! upto
two years,
b).
or with a fine or with both.
Civil liability
arises in 6ase of medical service rendered
on payment of a fee.
These cases come within the perview
of section 73 and 74 of the
Indian Contract Act.
In a suit
for damages or compensation by a paying patient or his
legal representative;
the onus is on him to prove that the
doctor has failed to exercise ordinary duty and reasonable
care in the course of his examination and treatment,
resul
ting in the damages for which compensation is claimed.
And
section 75 of the Contract Act states that a person who
rightfully rescinds a Contract is entitled for any damage
he has sustained through the non-fulfilment of the contract.
Civil liability can also arise,
the liability due. to breach of contract,
i.e.,
quite distinct from
under the law of torts
a wrong that is independent of contract - this liabi
lity is applicable to doctors of all categories,
that is,
102
102
whether they provide their service for free or for a fee."
There had been number of legal discussions -
(treatises)
and "Tort".
trying to make a difference between "Contract"
But what is of
importance
to the doctors and
the medical profession - to appreciate - is that
are careless / negligent in their duties and
if
they do something positively wrong,
(
for any patient).
responsibilities
or if they are care
less in managing their patients they are
sation under the law of contract
if they
liable for compen
(for paying patients)
and
This is something that they
cannot escape.
At the same time the law is very considerate to the
doctors even in considering the liabilities.
The
law does
not expect the doctor to be perfect and successful always
in curing the patients and in treating him.
An error of
judgement is not a crime in criminal or civil law.
All that
the law expects from a doctor is to exercise reasonable
skill and care.
He got to guarantee care and not cure.
"In order to establish a liability,
the patient must prove
that :
- There was/is a normal practice
- The defendant doctor has not adopted
it.
105
:
103
- The -course adopted by the doctor is one that
no professional of ordinary skill would have
taken if he had been acting with ordinary care.
The
In the
law never pres-umes the doctor to be infallible.
words of eminent jurist,
therefore,
Lord Denning,
"You must not
find the doctor negligent simply because some
thing happens to go wrong.
If,
for instance,
one of the
risks inherent in an operation actually takes place,
or
some complication ensues which lessens or takes away the
benefits that were hoped for;
or if in a matter of opinion
he makes an error of judgement,
you should find him guilty
only when he falls short of the standard of
a reasonably
skillful medical man."
The cry of so many medical practitioners today is
that the law is very hard on them and is very lenient
towards the patients.
With the enactment of the Consumer
But in reality
Protection Act, most of them feel threatened.
the law is rather sympathetic towards
the medical persons,
’"'In a recent Supreme Court Judgement
and others
observed;
Vs.
A. S.Mittal
State of Utter Pradesh and others),
it was
''But the law recognises the danger which are inhe
rent in surgical operations.
despite exercise of reasonable
Mistakes will occur on occasion
skill and care."
104
:
Sometimes,
104
there are more than one school of
thought that are current on a given subject.
The doctors
are free to adopt any of these school s teaching.
doctor who honestly adopts one
others,
and if
the outcome /
If a
to the exclusion of the
result happens to be a failure,
he cannot be held to be negligent.
Then,
what is really negligence?
It is doing some
thing that is prohibited to be done and not doing what
should have been done.
In other words,
omission or commission.
One form of negligence is rashness,
i.e.,
it is an act of
undertaking an assignment that is beyond one's
competence or doing something which no sane or sober doctor
in similar circumstance would ever do.
Rashness is the
result of the doctor's negligence in his duty to be careful
about the patient's safety.
C"), Contributory negligence
:
Sometimes the doctor may be negligent; but the patient
also has a share in the damage / harm and it is known as the
contributory negligence.
gsnce,
In the case of contributory neglir
it is upto the doctor to prove that the patient did
contribute to the damage by not paying heed to the instruc
tions given by the doctor.
For example,
in a fracture case,
the patient is instructed to rest the part affected
(and is
105
105
plastered)
:
which quickens the
reunion of the bones.
But
if the patient walks or uses the fractured part,
and it
results in malunion instead of
the
patient sues the doctor,
re-union,
it is upto the doctor to prove
the contributory negligence of
the patient.
"A victim of negligence
or monetary compensation,
then if
is entitled to damages,
that are classified under two
heads;
1)
Pecuniary damages are amounts awarded for financial
losszpast or future,
not.
whether precisely calculated or
All medical expenses,
including costs incurred
on nursing and attendants and loss of earning capacity
are included in the calculation of pecuniary damages.
Tor example,
the case of T.D.Singh a Delhi based busi
ness executive,
who left his body emaciated and his
bank account empty.
He had a second bypass operation
six months ago in a leading hospital in Bombay where he
had a similar operation seven years ago.
The operation
was successful but he fell ill with hepatitis B,
possibly
contracted through contaminated blood transfusion.
Singh has been drained of
Re.1
all his savings,
having spent
lakh for the first operation and Rs.1.5 lakhs for
, ,
67
the second."
.106
106
(2)
Non-pecuniary damages are amounts awarded for pain
and suffering,
past or future,
enjoyment of life in
and so on.
as well as
respect of sports,
Example the award of
of Chandrasekhar's
loss of
married
life
compensation in case
case - the former national table
tennis champion who suffered crippling disabilities
after he went in for a simple knee surgery in 1984.
"The manner in which monetary compensation is worked
is still a grey area.
But what's clear is
out,
however,
that
the basis of all monetary claims against doctor is
negligence - either by themselves or by their staff - provi
ded the act of negligence
is the direct or proximate cause
of some
injury caused to the patient.
damages,
the claimant has to establish that ;
some harm or injury;
he has suffered
and the same is the direct consequence
of the negligence of the
The
So in a suit for
respondent doctor or his assistant.
relationship between the injury and the negligence must
be direct and proximate,
not remote."
While we consider the
^"’6 8
injury / harm it is equally
important to consider the risks involved in undergoing the
treatment.
Sometimes there is a greater risk in the life of
a patient who does not undergo the treatment, e.g.,
the
coronary bypass surgery which is beneficial to those patients
107
:
107
coronary events.
facing high risk of future
absence of aggressive treatment,
there is a chance for
myocardial infarction or even sudden death.
patients,
it is difficult
(with earning potential)
In the
to compute the
In such
life expectancy
curtailed by the failed surgery.
While still on the subject of damages,
vant to recall Lord Dennings Comments in
"Take
it is rele
1981:
heed of what happens in the United States.
dedical malpractice cases there are very worrying especia
lly as they are tried by juries who have sympathies for
the
patient and none for the doctor who is insured.
The doctors insure themselves
The damages are colossal.
and premiums are very high,
and these have to be passed
on in fees to the patient.
Experienced practitioners
are known to have
refused to treat patients for fear of
being accused of negligence.
Young men and women are even
deterred from entering the profession because of the
involved.
Not only must we avoid excessive damages,
must say,
and say firmly,
risk
we
that in a professional man an
error of judgement is not negligence."
108
: 108
B.
LITIGATIONS AND DEFENCES
The word litigation means the legal process
where a law suit is carried on.
every sphere and walk of
life,
It is applicable
i.e.,
in
wherever there is
dissatisfaction in a person with anything that is pro
vided by another person,
especially when this provision
is in exchange for something that is of value.
When
this litigation occurs in the medical profession invol
ving a medical person,
it is called medical litigation.
That is when a dissatisfied patient files a case against
treatment and care provided by a doctor or the hospital
itself
where the patient (the plaintiff) had
suffered
a loss or injury as a result of the treatment received.
These days people are becoming more and more
compensation oriented everywhere (all over the world)
and of late the claims for compensation sought for
damages / for personal injuries are steadily rising.
"The medical malpractice problem in America,
where doctors are covered by commercial insurance,
has become so acute
....
Although doctors in Britain
are only seldom charged with criminal negligence,
the
number of civil actions against doctors based upon an
allegation of negligence has increased considerably
during the past few decades0
Throughout
1 09
109
the civilised world the public has become more and more
compensation-minded and in recent years there has been a
steady rise in the number of all classes of claims in which
damages are sought for personal injuries whether they are
sustained in the
A
at work or otherwise.
road accidents,
claim may involve some other party and the damages may
be apportioned according to the proportional responsibili
ties agreed upon or decided by the court.
for example,
There may,
be an apportionment of liability between
a member of the hospital medical staff and a member of
the nursing or laboratory staff."
70
In any litigation, first and foremost the court
has to find out and make certain of the facts.
Very
often there will be a direct conflict of evidence and
it is for the court to decide
wrong;
reject.
the
who is
right and who is
whose views and evidences to accept and whose to
It all depends on the party's ability to impress
court with regard to evidence and the
court will weigh
it with facts obtained and then decide/pass the judgement.
"In an action for negligence,
of all to ascertain the facte.
conflict of evidence,
I
court has first
Often there is a direct
for example,
examination was carried out.
the
whether a particular
It is for the court to
110
! 110
determine whose evidence
it will accept or reject.
If the court is not impressed by the evidence of
plaintiff or his witnesses.
the facts,
Only after it has ascertained
can the court decide,
negligence and,
the
whether there has been
in reaching its conclusions,
it is guided
by the views of the expert witnesses who have been called
to give evidence.
If one expert supports the defendant
Court is satisfied that his views represent that
and the
of a reputable school'of thought it can find in favour of
the defendant notwithstanding the contrary view held by
another expert representing another
Whilst the
changed,
cases has
school of thought.
law concerning the doctor's liability has not
its application by the courts in recent individual
revealed a trend to the disadvantage of the
p ractitione r."
71
In the United Kingdom there is an increase in the
litigations involving doctors.
in litigation in U.K.
result of
It seems that this increase
is due to impersonal elements as a
the introduction of National Health Service.
The second reason is because of
the operation of
the Legal
Aid and Advice Act which acts as a backbone for those who
never dared to and could not afford to have recourse to
legal remedy for negligence suffered.
The people seem to
111
111
have developed the attitude that they are sueing the
State at the State's expense.
"Although there has been an increase in litiga
tion involving doctors practising in the United Kingdom,
this has not been on the same scale as in the United States.
It is generally believed
that the increase in litigation
against doctors and the hospital authorities in the United
Kingdom is due to two principal factors.'!« The -f-i-rst is the
impersonal element
resulting from the introduction of the
National Health Service Act in 1948.
The taking over of
the hospitals under the Act has brought about a radical
change in the
attitude
their local hospitals
and respect which patients had for
and their staff.
l
I
I
-•
f
A
good deal of this
■
respect has now gone and with at an inherent unwillingness
on the part of the patients to institute proceedings against
their local hospitals.
are sueing the
The present attitude is that they
'State**....,..' The second factor arises
from the operation of the Legal Aid and Advice Act 1949.•
•This has made it possible for many members of the public
who had hitherto not been able to afford to do so,
institute
to
legal proceedings against a practitioner and/or
a hospital authority for negligence.
A person can hardly
be blamed for instituting an action against a hospital
authority in respect of personal injuries when he believes
112
112
believes that he
expense."
is suaing the State at the State's
72
legal aid scheme
Is the
in U.K.
an instigation
It is true to a certan extent,
for litigation?
.the case always.
In fact,
there are certain regulations
and formalities to be followed by the litigant.
and foremost,
claim the
the
but not
litigant must obtain the
legal aid service.
-First
right to
This eligibility for legal
aid certificate depends on the income of the applicant.
the medical report from the doctor
He must also submit
which will be screened by the legal professional and
only if they are convinced of the need of
the plaintiff,
the
the complainant.
litigation by
legal aid certificates are issued to
When the
legal aid is not available,
the litigant can either use his own resources or get th6
financial aid from
the place where he works.
"One of the features of the
legal aid scheme is
that there are limitations upon those who have the
to claim the
legal aid services.
right
Eligibility of a legal
aid certificate depends upon the applicants'
capital and
income and of the possession of 'disposable capital'
'disposable
income'.
Legal aid committee
and
consider each
application on its merits and they will turn down an
application for legal and certificate to sue a member
11?
113
of the medical profession or a hospital authority if they
do not consider that the applicant has a prime facie case
for comp lain t.
When the
legal aid is not available, the litigant
is not necessarily forced to
rely on his own resources.
His trade union may feel disposed to give him financial
support in respect of a personal injury claim and this may
well involve a claim based upon an allegation of medical
negligence. ”
73
While filing a case in an attempt to sue the doctor
the plaintiff must prove that the doctor was negligent.
The burden of proof for negligence,
rests with the plain
tiff except in circumstances where the proof is so obvious
like the amputation of the wrong limb or the removal of the
wrong organ or even leaving an instrument in the abdomen,
etc.,
Where the
legal maxim res ipsa loquitor applies,
i.e., the thing speaks for itself.
In all other circum
stances the responsibility of proof
remains with the plain
tiff.
He has to prove that;
of care such as duty of
a patient;
(a)
The doctor owed a duty
care to decide whether to take in
a duty of care to decide what procedure to
adopt in diagnosis and treatment;
a duty of care in adminis
tering the treatment; and a duty of
care in equipping the
114
114
:
the patient with adequate explanation and information.
(b)
The plaintiff also has to prove that there is an
accepted and approved / standard practice existing and
a reasonable degree of skill,
knowledge and care required
during the time of action on treatment,
but the doctor
failed to adopt that standard practice and apply the
reasonable skill,knowledge and care while treating the
patient which resulted in the damage the patient suffers /
suffe red.
(c)
The plaintiff has to prove that there were facilities
available to diagnose the case but the doctors failed to
have recourse to them and so the patient had to suffer
the loss or injury.
(d)
The patient required
or specialists
reference to other consultants
who were available but the doctor did not
refer the patient to the specialists resulting in the damage
suffered by the patient due to the negligence
of the
treating doctor.
(e)
The plaintiff has to prove also that there was certain
degree of
risk involved in the treatment of the patient but
the doctor failed to take the necessary precautions to avoid
that risk.
115
115
(f)
:
The plaintiff has to prove that the patient had not
given a proper and fully informed consent and so the doctor
is liable for the damage or loss suffered by the patient.
DEFENCES
Defence is the
charge against him.
gence,
response of the defendent to the
So when a doctor is accused of negli
he has the right to defend himself by proving that
he was not negligent if he had fulfilled his duty of care
while treating the patient.
He has to prove that.he had
exercised reasonable degree of skill and applied reasonable
degree of knowledge while attending to the patient.
-He
.also has to prove that he had informed the patient or his
relatives of
the
risks,
involved and had taken the necessary
precautions to prevent the risks involved.
I-t is his duty
to prove thatz the accident was an inevitable one which he
could not avoid inspite of the precautions taken.
He can
also prove if there was / is a contributory negligence.
He can also prove that there are more than one school of
thought and he had adopted one which^turned but to be a
failure.
He must also prove that the treatment given or
the procedure on operation performed was with fully informed
consent of the patient / his relatives.
.116
:
116 :
There are certain limitations to litigation under
the limitation Act.
This limitation act is precisely to
protect the doctors (defendants)
from .state claims and to
encourage plaintiffs to institute proceedings within the
reasonable period of
time.
And the plaintiff has to sue-
But there is an exception
the doctor during this period.
to this rule where the plaintiff
after the expiry of time,
can sue the defendant
provided he/she gets the special
permission for it from the Court.who will obtain it on valid
reasons.
"The purpose of the limitation Act 1939 is to protect
the defendant f rom-st-a-te- claims and to encourage plaintiffs
to institute proceedings within a reasonable period of time
(Before 1963 the General position was that no action could
hebrought,
where the damages claimed consisted of or included
damages for personal injuries after the expiration of three
years from the date on which the incident which gave rise
to the action occured).
1963 a plaintiff could
By virtue of
the Limitation Act
sue for damages for personal inju
ries outside the normal three year limitation period in
certain circumstances if he obtained the
leave of the coutt
to do so.
....
lhe Limitation Act 1975 does away with the need to
obtain leave from the Court.
Under this period the three
117
•
year period
run Prom the date on which the
accrued or the date
If the
11.7
cause of action
(if later) of the plaintiff's knowledge."
injured person dies before the expiration of
three year limitation period,
the period - as
the
respects the
cause of action surviving for the estate of the diseased
runs from the date of death or,
if later,
thd date of the
personal representative s knowledge."
Special defences
There are circumstances in which the facts will
speak for itself and the defendant is automatically held
-negligent.
Similarly there are circumstances in which the
doctor (the defendent) will be defended -too automatically
as in the case of contributory negligence;
limitations;
statutes of
proof obtained from investigations;
release from the patients;
valid
and institutions from which the
patient is already awarded the compensations.
■J,In preparing the defence of\ malpractice action
consideration will,
of course, be given to the question
of whethe r ...the re was contributory negligence on the part
of the patient; also as to whether or not the action may
be barred by the statute of limitations.
There should,
of course,
also be investigations to
determine whether some other special defence may be ■^■available
118
: 118
Thus if the physician has secured a valid release
from the patient,
he cannot the reafterCto] be sued for
alleged negligence in the transaction covered by the
release.
......
Finally,
it may be
industrially injured patient,
compensation award.
If so,
that the plaintiff,
an
has already accepted a
the patient is precluded
from maintaining a subsequent malpractice action against
the physician who treated him.
under similar circumstances,
Aw
4
However,
in other states,
such an action is not barred."
'
Another weapon that can be easily used by the
defendant to defend himself is the clinical notes; provided
they are maintained adequately and properly.
safe side,
To be on the
it is very important to maintain these records
uprto-date and with all sincerity and accuracy as they are
of inestimable value both For the patient as well as the
doctor.
"The importance of keeping accurate and contempo
raneous clinical notes of findings on examination and all
treatment administered cannot be overemphasised.
Good
notes are of inestimable value,
not only when handling a
patient over to another doctor
but also in meeting any
criticism that may arise.
If a patient refuses to accept
the advice of his doctor,
this fact should be recorded in
119
75
-
writing.
:
119
-
In such circumstances the doctor would be well
advised to withdraw from the
that he
:
case and to inform the patient
is not prepared to accept any further responsibility
for his treatment.
Aaa.
In the
course of legal proceedings case notes dis-
closable to the other side.
The omission of essential
details from the notes may cast a doubt on the veracity
of the witness.
V
When there is a conflict of evidence the
court will naturally attach importance to the notes written
at the time.
Good notes may,
therefore,
be of the
greatest
importance in supporting the doctor's evidence as against
that of the plaintiff and his witnesses."
In short,
76
success and failure of every litigation
against medical negligence depend upon the circumstances
of the particular case.
But one thing that should be kept
in mind is the exercising of
reasonable knowledge and skill
and duty of care in the circumstances.
exercised reasonable care and skill,
If the doctor has
he is safe.
120
I
I
CHAPTER
V
CONSUMER PROTECTION ACT
-
LEGAL VIEWS
-
VIEWS OF THE INDIAN MEDICAL ASSOCIATION
-
VIEWS OF THE CUSTOMER
-
VIEWS OF THE PUBLIC
120:
CHAPTER
CONSUMER
V
PROTECTION ACT
"A peculiar feature of the
Indian
Constitution is
that it combines social and economic rights along with
political and justifiable
Singh in his book,
In this era
commercialisation,
tators,
says Or.Gurubax
legal rights."
'The Law of Consumer Protection.*
of
industrialisation,
urbanisation and
the consumers have become hglpless spec
as manufacturers and producers of
utilize all the means possible
goods and services
(fair and foul)
the marketing of their products and services.
to promote
Yet to the
great surprise of these producers and providers,
alert consumer organizations and
there are
consumer activists who
persevered in their endeavour and kept on inspiring the
consumers to action.
In the early sixties,
a global move
ment started in the United States and the United
to protect the interests of the consumers.
developed countries,
Kingdom,
In both these
the ones responsible for activating
the Government authorities to pass legislative measures to
protect effectively the consumer's rights,
tary organizations.
but they are
alert to
Today,
were the volun
the consumers are not only awake,
a certain extent to protect themselves
• • •121
:
121 :
against the manipulations of traders and malpractices
of providers of services.
Before the
Independence of
India,
there were hardly
any Parliamentary law to protect the consumer's rights.
After Independence,
there we re a feu of them formulated;
but the implementation was not satisfactory.
among all other movements in
In fact,
in the fore-front.
India,
But today
Consumer movement is
it is the latest and rapidly
expanding movement in our country.
I.
THE
LEGAL VIEUS
The Consumer Protection Act,
1986,
is an Act for
the protection of the interests of the consumers.
It does
not provide any new right to the consumer.
There were
already other measures under the prevailing
laws such as
the C.P.C.,
I.P.C.,
of Goods Act,
G.P.C.,
the Laus of Contracts,
the Law of Torts, etc.
mer Protection Act,
the Sale
The purpose of Consu
1986,is to provide for a better and
quicker remedy than the already existing ones.
It also
provides provision for establishment of Consumer forums
and Councils for the education of consumers and other autho
rities so that the disputes between the consumers and provi
ders / producers
of services and goods can be settled easily.
...122
— : 122 ; —
''Consumer Protection Act is ."an Act to provide for better
protection of the interests of Consumers and for that
purpose to make provision for the establishment of Consu
mer councils and other authorities for the
settlement of
•
-77
consumer s disputes and matters connected therewith."
Consumer Protection Act is one of
the most
important
developments in the law of torts which was approved by the
then President k.Venkata^Raman on 24th April 1987.
In
India,
until the
recent past,
the concept of
Consumer protection was not understood in its real and
fullest sense.
But gradually,
understanding that the
his rights.
the public came to the
consumer was deprived of so many of
The Act specifies and defines the consumer
and explains what consumerism implies.
"Any person who is a buyer of any goods for a consi
deration or any person who hires any service for a conside
ration has been given the meaning of consumer'under the Act.
Consumerism devotes a thorough safeguard for the
consumers from all sorts of malpractices;
deed of market operations."
service means.
and exploitative
The Act also explains what
"Service moans services of any description
which is made available
does not
78
include the
to the potential users
rendering of
...........
but
any service free of charge
..12?
: 123 :
or under contract of personal service.”
The characteristics of Consumer Protection Act :
The act applies to all goods and services except
the ones received free nf charge and as gifts,
etc.
It covers both public and private sectors.
It provides compensation for losses,
injuries and
harm suffered by the consumer.
The act ensures the rights of the consumers and
provides provisions for the establishment of
consumer forums
and councils at the state and national levels to.promote
and protect the
rights of the consumers.
The most attractive part of all is that it provides
a simple,
speedy and cheap redressal of the consumers grie
vances through its three-tire system.
"The provisions of this Act are
in addition to and
not in derogation of the provisions of any other law for
the time being in force.”
80
The purpose of the Consumer Protection Act :
The main purpose of the Act is to protect the consu
mers - by strengthening his rights - against manipulations
124
- : 124
s ~
as malpractices by manufacturers of goods and providers of
by providing provisions for speedy,
services,
cheap redressal of consumer disputes,
viding compensation to the
simple
and
It also aims at pro
consumer for the loss/harm/injury
suffered by him while or as a result of the use of any goods/
services for a consideration/price/cost .
"The Consumer Protection Bill,
1986 seeks to provide
for better protection of the interests of consumers and,
that purpose,
for
to make provision for the establishment of
consumer councils and other authorities for the settlement
of consumer disputes and for matters connected therewith.
It seeks,
consume rs."
The
like
rights of
to promote and protect the
interlia,
81
reasons for the enactment of C,P«fl,
In a country
:
India where majority of her people are poor,
and ignorant and are exploited by the powerful,
voice and no one to voice on their behalf.
illiterate
with no
The prevailing
remedial measures to protect their rights were neither
readily available,
nor accessible,
nor affordable.
they were not aware of these existing facilities;
Often
but even
when the consumers were being violated by the unscrupulous
persons,
they were hesitating to come forward and assert
their rights;
because there were
ing judicial relief,
certain lapses in obtain
which discouraged them.
These lapses
125
: 125
mainly we re
*
The never-ending civil cases ;
1)
Often it took
years together to dispose of even small cases,
so much so,
the person may even die before the final judgement,
and in
case had to be continued by his heirs.
For
his place
this
the
reason the consumer preferred to suffer in silence
rather tnan
2)
go to the court for justice.
Complication of the procedure
remedy meant filing the case,
;
Seeking of legal
which in turn demanded of the
plaintiff to file number of documents,
a number of petitions
and inquiries followed by cross-examinations,
re-examinations
and so on.
3)
Cost involvement :
The
court fee that hai to be
paid by the plaintiff was another disadvantage which held
him back to keep quiet and suffer the
4)
Service of an advocate ;
loss in silence.
This was an added
trouble and expenditure.
In short, the delay, the cost factor and the compli
cation of the procedure, etc., discouraged the people to
approach the court.
At the end of all these,
the plaintiff
could never assure himself of a favourable judgement.
after years of silent sufferings,
and the
serious discussions and
Today,
struggling by the oeople
reflections have brought out
an additional solution in the form of Consumer protection Act
... .1 26
126 :
a Christmas gift for tne people of
India on
the eve of
Christmas in 1986.
"The
three factors of delay,
complicated procedure
and litigation cost make people afraid of approaching the
courts.
These problems made the Government of
the Consumer Protection Act,
in 1986.
The object is to
dispense with the cumbersome technicalities of
provide speedy justice,
India pass
simple procedure,
law and to
and inexpensive
•
<-•
„ 82
justice."
Advantages of Consumer Protection Act :
"New brooms sweep well".
Anything new when intro
duced will have its novelty.
But if it has to be apprecia
ted by people in the
then it must offer something
long run,
better than what was already existing.
When the Consumer
Protection Act is compared to the previous
the C.P.A.
res,
offers a better procedure to the public/
consumers of goods and
1)
remedial measu
Speedy justice :
services.
The Consumer Protection Act states that
every case of consumer disputes must be decided within ninety
days.
There are exceptions to this rule which is extended
upto hundred and fifty days.
.127
- : 127 ! “
2.
Filing a case in the civil or
Simple procedure :
counter petitions,
criminal court demands petitions,
ries, examinations
and
re-examinations,
the Consumer Courts none of
the
address of the one who
has caused the damage / loss / injury.
rest will be taken care of
This can be
3.
Only give four copies
by the consumer court.
given either personally or by post.
In-expensive justice ;
criminal courts,
fee charged,
consumer courts follow
All that is required is a written com
plaint on a plain paper with the
and the
where as in
these formalities are necessary.
There is no particular procedure;
natural justice.
etc.,
enqui
in the
Unlike
the civil courts and the
consumer court there is no court
nor is there any need of an advocate's service.
"The hall-mark of the consumer forums are quick
decision,
simple procedure and in-expensive justice."
Consumer Protection Councils
There are two types of machinery constituted by the
Consumer Protection Act.
One
is the Consumer Protection
Councils and the other is the Consumer Courts,
as the Consumer Redressal Agencies.
also known
There is a Central
.128
: 128 :
Consumer Protection Council and one in each state.
The
Central Consumer Protection Council is known as the National
Council and at the state level they are
Consumer Protection Councils.
known as the
These National and
State
State
Councils are composed of members from various walks of life
as well as representatives from various organizations like
public sector undertakings.
to give suggestions to the
These councils are meant mainly
Government to implement
the Act
effectively.
"The Central Consumer Protection Council (referred to
as the Central Council).
The Central Council shall consist
of the following members namely (a)
The Minister-In charge
of the department of Food and Civil supplies in the
Government,
who shall be its Chairman,
and
(b)
Central
such number
of other official or non-official members representing such
interests as may be prescribed."
84
The Act says clearly about the members of the State
Consumer Protection Council,
specify in such notification,
"(1)
a Council to be
Consumer Protection Council for
State Council.
(.2)
The State Government may ..
known as the
referred to as the
The State Council shall consist of
such number of members as may be specified by the State
Government by notification from time to time."
.129
- •• 12S ’ -
Consumer Redressal Forums
(Consumer Courts)
The second type of machinery constituted by the
Consumer Protection Act is the Consumer Courts at three
at District level,
levels,
i.e.,
level.
At the District level,
State
level and National
they are
Consumer Disputes Redressal Forums;
are known as the State Commission;
known as the District
State level they
at the
and at the National level
they are known as the National Commission.
The main purpose
of these forums and commissions are for the
redressal of
grievances of
consumers generally.
District Forums ;
(1)
Every district has a District
Forum at its headquarters headed by a person who is,
the qualifications to be,
or has
a judge as the President of the
forum and two more members including a woman and a social
worker.
Every appointment of these members will be done by
the State Government which will be on the
recommendation of
a selection committee consisting of the President of the
State commission,
Secretary of the
law department of
the
State
and the Secretary in charge of the department dealing with
consumer affairs ir. the State.
District Forums we.re to
handle cases claiming upto Rs.
one
amendment of
Dune 1993,
Rs.
section 17 of
(u)
lakh.
the C.P.A.
the District Court can handle
But now after the
passed on 18th
cases claiming upto
Five lakhs.
...130
I
- * 1 3©: -
(2)
State Commission :
State Commission,
In each State
headed by the President,
there is a
who is a sitting
or retired High Court Judge and is appointed by trie State
Government on the recommendations of
ttee
the selection commi
consisting of Chief Justice of the High Court,
Secretary of the law department of the State
the
and Secretary,
in charge of department dealing with Consumer affairs in
one of whom should
the State.
I he re are two other members,
be a woman.
The State Commission can now handle
those cases
claiming upto Rs.lakhs and the ones who appeal from the
district forums.
The State Commissions are now strengthened
with administrative jurisdiction of the district forums
after the amendment of the Act.
(3)
The national commission :
Consists of a Presi
dent who is a sitting or retired(or qualified to be) judge
of the
Supreme Court and four other members who
the field of economics,
try
commerce,
law,
accountancy,
and public affairs or administration.
shall be a uomnn.
represent
indus
One of them
All the members of the National Commi
ssion are appointed by the Central Government after consul
tation with the Chief Justice of the Supreme Court and on
the
recommendation of the Selection Committee consisting
of a judge from the Supreme Court nominated by the Chief
Justice,
Secretary of the department of the
legal affairs
...
- : 151
of1
India;
Secretary of the department dealing with the
Consumer affairs in the Government.
ssion handles all cases where
The National Commi
claim for damages is more
the
than Rupees twenty lakhs and appeals from the
ssion judgements,
of
State Commi
persons dissatisfied with the judgement
the National Commission can appeal to the Sup feme' Court.
Impact of C.P.A.
on Medical Profession
Till of late if any patient had a dispute regarding
negligence from the side of the doctors/hospitals,
for the remedy by approaching the
law courts.
he sought
Here he had
to file a case either under the law of torts to claim dama
ges or under section No.304A,
Penal Code to
get
336,
337
and 338 of the
the negligent punished.
However,
Indian
there is
drastic change to this way of approach by the patient,
after
the introduction of the Consumer Protection Act,
Nou
1986.
the patient approaches the Consumer forum and the State and
National Commissions,
with his grievances against the doctors
and/or hospital for various types of negligences.
option is far more advantageous
This new
compared to the previous
ones.
"Under this Act,
Consumers are covered
goods and
services availed by the
services of all types and
... 1 5i
- : 152, : -
nature are covered under this Act except free
and personal service (contract of
important
service
service).....................
aspect of this Act is the
Most
time bound disposal
of cases.
The medical profession is a professional service
offered by doctors and health care institutions and the
beneficiary or the end user of
is a consumer.
Mo reover,
become a health care
pharmaceutical
any professional service
this profession has re ally
industry with other sections like the
industry,
equipment manufacturers,
etc.,
g
actively participating in the health care delivery system."
Every coin has two sides.
Protection Act.
It has a Positive
the medical care service.
So also the Consumer
and Negative impact on
By bringing the medical profe
ssion under the purview of the Consumer Protection Act,
the
patients who are the consumers of this service enjoy certain
benefits which are counted as the positive impatcs,
1)
It can be a means to check the
casual doctors
namely:
quacks and the
who are careless and negligent in their
dealings with the patients which in turn will help to improve
the standards of medical practice and make the medical pro
fessionals more and more accountable.
...153
I
~ : 135 : "
2)
It is more beneficial to the patients as it
provides speedy,
easy and
cheap yet sure remedy to the
patients who suffer because of the negligent doctor /
hospital.
"There
are a few reasons for keeping medical services
under the purview of
1)
There
are
Consumer Protection Act.
These are
;
cases of medical practitioners dealing
casually with their patients because these doctors
are negligent,
and callous by nature.
The act may
serve as a deterrent to these doctors.
2)
The Act provides speedy,
easy and cheap remedy to
aggrieved patients against negligent doctors, enabling them to claim compensation.V
Dust as the C.P.A.
87
has these positive impact,
it
also has its negative effect on the medical profession.
1)
The applicability of the C.P.A.
to the medical pro
fession can destroy the doctor-patient
relationship
which is built on trust.
2)
Patients'
inclination for unnecessary litigations,
dragging the doctors and hospitals to court can encou
rage the use of defensive medicine (as no doctor will
allow anything to come on his way and destroy his
...J34
- : 134 : -
professional reputation that
a valuable asset)
and patient
Practice makes man expert .
yesterdays students.
is considered
as
selection.
Today's experts were
inclusion of the medical profession
The
the students and junior doctors from trying and
can deprive
learning from
their mistakes;
there will be
less chance for
practice.
After all he who has not made a mistake has made
nothing.
In the end,
it
can affect the future of the pro
fession with less experts.
II.
VIEWS OF THE
INDIAN MEDICAL ASSOCIATION
in an landmark judgement,
In 1989,
the National
Commission,
in an appeal filed by a hospital and some doctors
in
ruled that the medical services in private sector
Kerala,
are covered by the Consumer Protection Act,
cal profession's
The
1986.
The medi
reaction to this rule was prompt and sharp.
Indian Medical Association organised a nation wide cam
paign seeking exemption of medical services from the purview
of Consumer Protection Act.
Numerous meetings of doctors
that were organised and the petitions that were filed in the
Supreme
Court
by the
Indian Medical Association are nothing
but an expression of their anxiety in ±he matter.
...135
- ! 155 : ~
But doctors are of divided opinion.
Some of
them
who are ethical and progressive minded and also devoted
to the
cause of
their patients and their profession, extend
their support to the Consumer Protection Act and openly
involve themselves with the consumer movement.
Yet some
others express their grudge and discontentment in the
Consumer Protection Act and openly consider it
and a threat.
as an evil
They fail to see the deficiency and malprac
tices that are prevailing in the medical profession.
aruge strongly that the medical profession in
They
India has,
overall established a reputation for high standard of ser
vice,
efficiency and concern for the patients.
"Doctors are divided even within themselves.
Progre
ssive and ethical doctors have come out openly in support of
the COPRA and allied themselves with the Consumer movement.
Some other mainstream doctors have grudgingly accepted the
COPRA as a necessary evil or a fact of
life without conce
ding that there may be something deeply wrong in the way
medicine is practised in our country.
The
later view-point
was expressed in an editorial of the National Medical Journal
of
India (May/june
though there are
1992)
by H.D.
Shourrie,
who agreed that
always some black sheep in any profession,
the medical profession in
India has over-all established
...136
- : 136 : -
a reputation for high standard of service,
and concern for the patients. ”
The
I.M.A.
efficiency
88
consider the Medical Profession as noble,
the doctor patient relationship as sacred and the treatment
unpredictable.
The socially conscious doctors accept the
fact that the medical profession today,
not patient oriented,
on the
whole,
but it is business oriented,
proved by these doctors themselves.
is
a fact
The ethical and the
progressive minded doctors are aware of the fact and they
accept that the medical profession must come under the
purview of the Consumer Protection Act,
black sheep within the profession.
that the upright doctors
to discipline the
They are
convinced,
and health care institutions do
not get affected by implementation of the Consumer Protec
tion Act.
In fact,
they consider it as a blessing and a
necessity to improve the standard of medical profession and
the quality of health care services.
"Progressive
and ethical doctors are fully aware that
the excessive litigations could have
effects (due to defective medicine).
market dominated medical care,
the disciplining
of
counter-productive
But in the present
they see no alternative to
the black sheep by patients'
litiga-
, .
..89
tion."
... 137
- :157
□ n one hand the
the C.P.A.
I.M.A,
(some of
its members)
and on the other hand they (the
support
remaining members)
are fighting tooth and nail to get the medical profession out
of
the purview of the Consumer Protection Act.
These members
who want the medical profession to be excluded from the
Consumer Protection Act
argue that claims of negligence
can happen to even well-trained
personnel and also due
the strain and tension under which they work.
to
They also
blame the whole system of medical education and its defici
ency in educating for the negligence.
find an excuse for being negligent,
This group of doctors
because there is no
specified system to update themselves.
They fail to accept
the personal responsibility for' updating themselves and for
the ongoing medical professional education.
"We
beings,
are not Gods.
We are human beings; and being human
anyone may commit a mistake.
make mistakes sometimes
.
Similarly,
a doctor
I do not think anybody
would put an artery forceps in the abdomen of a patient inten
tionally and close it up
should start
The prevention of negligence
right from the college
level.
jurisprudence is taught in medical colleges.
only superficially without going in depth.
Yes, medical
But is taught
A student is
supposed to know the various legal aspects of our profession^
... 158
- :
commissions,
actions to be
All these,
138 s
omissions,
and negligence.
taken against you,
And about the
if you are negligent.
including probably today's detail at the
level
Unfortunately,
medical knowledge.
There
assessment of a doctor."
is no
college
there is no update of
recurring or repeated
90
This particular group of doctors feel that
better to correct the drawbacks of
the
it is
Indian Medical
Council and strengthen its powers than bringing the medical
profession under the purview of the Consumer Protection Act.
They consider the C.P.A.
more of a menace than a help.
"With Consumer Protection Act,
the doctor and you
have to go to the Court and create a lot of problems further.
If there are problems like a lacuna in the
in getting the judgement,
The
I.M.A.
why not we
I.M.C.
or delay
rectify them."
91
argues that the doctors come under personal
service and so they must be excluded from the Consumer Pro
tection Act.
They threaten to use the defensive medicine
whicn in turn will increase the cost of medical care service,
which ultimately becomes an added burden to the patient.
They also demand,
to court,
if the consumer,
loses the case,
who has taken the doctor
then the amount asked as compen-
139
- : 159
* -
sation must be paid to ths doctor/health care
"If
what is the
Suppose,
he
a consumer goes to court and he
loses the case,
right of the doctor to go against
the patient?
tried to malign me and unnecessarily went to
court so that he might have a kick back,
92
so that he may not go to court?"
The
institution.
what
is the
remedy
Indian Medical Association is unhappy over the
decision of the National Consumer Disputes Redressed Commi
ssion to bring doctors under the purview of the Consumer
protection Act.
And they are determined to gear up for a
massive action plan to fight this decision of
the National
Commission.
"Giving three major reasons for being excluded from
the Act,
a spokesperson of
doctors,
and non-scientific members of the Consumer Forum
have no
right to try us.
fied persons.
tice and
Secondly,
I.M.A.
said,
"firstly we are
Doctors must be judged by quali
this will result in defensive prac
consumers will end up paying heavily for unnecessary
investigations and expert consultations.
Thirdly,
the
consumer will suffer even more heavily as doctors will
refuse to co-operate in situations
As a first plan of action,
the
of medical emergencies."
I.fll.A.
will take the issue
140
: 140 ;
to the Supreme Court and,
to a series of protest
if this fails,
marches and even go on a nation
wide hunger strike as a last resort.11
The
1.1*1.A.,
they will resort
93
the largest Voluntary Medical body
considers the Consumer Protection Act as a threat to them.
They have challenged the National Commission
ruling that
brought the doctors uncbr the purview of Consumer Protection
Act.
They aim at getting the decision of the National
Commission set aside.
They plan for various types of
protests and hold strike as a mark of their disagreement
and discontentment with the Consumer Protection Act.
"The Association is also planning various types of
public protest.
On August 11th 1993,
its 90,000 members
will wear black Arm-bands on their white-coats as a sym
bolic gesture.
And in September they plan to hold a one-
day national strike to demonstrate their anger over what
Velayudhan Pillay,
I.M.A.
President,
calls "the most serious
threat the medical profession has faced in the country,
both to its credibility as well as its ability to function
without hindrance or fear."
94
Today the doctors are very unhappy that the pendulam
has swung to the extreme.
In the past,
there
was ample delay
...141
- :U1
:
in arriving at a decision on medical negligence,
the
courts of law.
Today the Consumer Forums are
mighty haste to dispose of the cases,
does not avail the medical experts*
through
in a
so much so it really
opinion and weigh
the
matter properly.
The
I.M.A.
is troubled because the COPRA does not
consider their profession as a unique and noble service.
They point out the inherent disadvantages of consumer court
"a science of uncertainity and the
as they define medicine
art of probability. 11
They complain that the doctors* skill
cannot be standardised by the I.S.I.
is incapable to decide
found wanting.
and the Consumer Court
where exactly their services were
They are
afraid that ^he Consumer Court
may favour the consumer as the decisions are being taken
by the non-medical experts,
"L. 1*1. Kapur, President of the Association of Medical
Consultants,
"Doctors
a 2,000 strong Bombay based body,
says,
are just 25 percent of the input for treatment.
There are para-medical staff,
blood bank,
poor infra-structure facilities,
themselves that could be
nurses,
ward boy^,
equipment and even patients
responsible for poor results.
,
we are becoming the scapegoats for everybody s woes.”
Yet
95
♦ • •142
- s 142 :
The
I.M.A.,
in their enthusiasm
to keep
themselves
and their profession out of t-he purview of Consumer
Protection Act,
Court.
are fighting their bailtie in the Supreme
I.N.A's writ
The Supreme Court has admitted the
petition out has not stayed the proceedings of the various
consumer courts deciding medical cases.
We still got to
wait and see what the outcome is going to be,
Supreme Court's decision is going to be
M.A.'s
I.
what the
regarding the
petition to keep the doctors and the medical
profession
out of the pervieu of the Consumer Protection
Act.
III.
VIEWS OF THE CONSUME RS AND THE PUBLIC
The end of 20th Century is witnessing radical changes
in the field of medical profession and health care services
in India.
The higher technology,
commercialization and
privatisation of medical education,
etc.,
have contributed
greately towards these changes.
The recent changes in the
law of the land has provided
an outlet to the public who had been discontented with the
medical care/profession/services.
The main
reason for this
increased unhappiness and dissatisfaction of the public
are the
regrettable increase in negligence,
malpractices,
incompetence and
within the profession on one hand and the
•••
143
- : 145 *• -
inappropriate expectation of victory in the battle against
disease and death on the other hand.
lation of Consumer Protection Act,
In the
recent legis
the pouerless public has
suddenly found a means for redressing their grievances,
the first time
Thus for
tionship
in India,
the doctor-patient
rela
is openly acquiring an adversial character on a
national scale.
new found
The
The consumer and the public cherish their
right and wcmt to make the maximum use of it.
scalpels are out for the doctors.
The patients
who had been trampled by the arrogant doctors who thought
no end of themselves,
who paid no attention to their neg
ligence and callousness are now finding themselves in the
dock
faced by patients whom they least expected to react
and retaliate in this manner.
public at large,
For the consumer and the
the Consumer Protection Act is like a boon.
Earlier the doctors were safe and secure,
but today the
negligent* the careless and greedy who fails to be upright,
conscientious and turn the noble and sacred profession into
a big bad business are very very unsafe
their patients / the
in the hands of
consumers of their service and the
>ublic at large.
...144
- : 144 : -
"Across the country many state consumer dispute
redressal commisions and district forums
surge in such cases.
have been filed
of
In Kerala,
before the
the total cases.
report a marked
an estimated
1,800 cases
14 district flarums - almost
In Tamil Nadu and Maharashtra,
15%
an
estimated 100 malpractice suits are pending in each state.
And within a year the National Redressal Commission,
deals with
which
compensation claims of over Rs.10 lakhs has over
30 such cases pending disposal.
The
largest being Rs.3 crore
filed by an Amritsar - based petititoner whose son died after
the surgeon allegedly performed several unnecessary operations.
What more,
of
with most of these consumer courts disposing
cases within a year - as compared to an average
10 years
in regular ones - doctors suddenly find themselves forking
out hefty compensations with numbing suddenness.
The
consumer and the public who were trampled and
sedated by the
to wake
the
up
arrogant medical professionals
today.
are beginning
In fact they are already awake aided by
consumer grouos and the voluntary organizations.
any newspaper or periodicals,
sational news of consumers
Open
they are filled with the sen
reactions and stories of their
grievances turned into appropriate compensations.
...145
- : 145 : -
Actually the consumers of health care / medical care
services are not against the doctors or to their service
rendered.
The public is in need of
them.
for is their rights as consumers and uhat
duty of
what they fight
they demand is the
care oued to them.
Given
below a re some of the view points of the consu
mers of health care services and the public.
1.
The
consumers and the public are not after the honest
and upright doctors.
business minded
and
They are after the
quacks and
greedy doctors who turn this noble
sacred profession into big business and exploit
the public in the bargain.
Defending the poor and
vulnerable from such people
is the job of
the
consumer
activists and voluntary organizations.
2.
The public do not want to indulge in unnecessary liti
gations;
but they are not going to spare the black
sheep either.
3.
All that the public and the patients expect from the
doctors and hospitals are their right as consumers.
4.
Trust is very important and it is built only by
exchanges between doctors and patients with mutual
trust;
there will then be few problems,
if not none.
146
: -
- :146
5,
Corporate medical care is the main
impersonal care.
dealings
Their concern is about
the shady
in the profession aimed at making money.
If doctors make
their profession a business then
patients will have
patients'
reason for todays
to treat them as traders.
and public's reaction is the
The
reflection of
the doctors action.
6.
Indifferent,
grievances of
lethargic attitude of the
I.M.C.
to the
the patient and their inability to
provide the aggrieved with due compensation encourage
the patient to prefer the option made
available through
the Consumer Protection Act.
7.
Since the doctors/hospitals are
given an equal oppor
tunity to defend themselves the
consumers are convinced
of the fairness of the Consumer Protection Act.
8.
The public feel that the root cause of all the problem
and the tension that exists between the patient and
doctor are the present selection system for M.B.B.S.
Those who pay the capitation fee
are the ones who ex
ploit the patients and the public.
..147
- :
9.
147 s
If the Medical professionals and the health care
institutions maintain the standard of the profession
and quality of service
then they can expect the
patients and the public to come out strongly in
support of the doctors and the hospitals.
10.
The
consumer groups are earnest not only in fighting
for the patients but also in protecting doctors from
false and frivolous
11.
complaints and
litigations.
"Today the public no longer consider doctors so
noble and high level of commercialisation of medicine
has lowered the doctor s social prestige."
In short,
all that the consumers of health care
service and the public demand from the doctors and the
health care institutions are accountability,
honesty,
up
rightness, devotedness to the patient and safeguarding of
their own
right as consumers.
In turn,
offer their loyalty and there will be
the doctors / hospitals.
(the consumers and public)
The
they are willing to
no litigations against
litigations arise only when they
are exploited and their rights
are violated.
...148
CHAPTER VI
RESULTS
RESPONSES OBTAINED FROM THE ADMINISTRATOR
FROM
1.
HOSPITAL 'A'
2.
HOSPITAL ' B'
3.
HOSPITAL 'C'
ANALYSIS OF THE RESPONSES OF THE ADMINISTRATORS
OF HOSPITAL 'A', HOSPITAL 'B' & HOSPITAL 'C'
RESPONSES OBTAINED FROM THE DOCTORS OF
1.
HOSPITAL 'A*
2.
HOSPITAL 'B'
3.
HOSPITAL 'C*
COMPARATIVE STUDY OF THE RESPONSES OBTAINED
FROM THE DOCTORS OF HOSPITALS 'A*, ’B' & ‘C
RESPONSES OBTAINED FROM VARIOUS CATEGORIES
OF DOCTORS
• 148 •
CHAPTER
VI
RESULTS
administrator's
HOSPITAL
1.
The
response.
'f\'
administrator of Hospital 'A 'is aware of the
legal aspects of medical negligence.
He
thinks that
the medical negligence is a big problem in the country
2.
He
is also aware of the Consumer Protection Act,
applies to health care institutions.
as it
He thinks it will
affect the medical profession to a great extent.
3.
The
administrator stated that the hospital had two cases
of alleged medical negligence, during the period between
April 1992 and March 1993;
4.
According
they are pending still.
to the administrator most of the health care
personnel in hospital 'a'
aware of the Consumer Protection
Act and its implications.
5.
The administrator said that he has tried to protect his
employees by providing indemnity insurance.
The hospi
tal is not yet insured but it is under consideration.
149
:
6.
According to ths
149 : _
administrator,
the areas of
services
in his hospital that are more prone for medical negli
gence
(ranked in order)
are :
(a)
surgical
(b)
medical
(c)
anaesthesia
(d)
nursing
(e)
laboratory
(f)
x-ray
(g)
Out patient department (O.P.D.)
5
Casualty.
7.
The
categories of employees more likely to be involved
in negligence cases / acts are
He
:
in rankings ;
(a)
administrat or and doctors
(b)
anaesthetists
(c)
nurses
(d)
lab technicians
(e)
x-ray technicians.
also added the ‘hospital*
as a whole could also be
sued.
8.
In hospital 'A* ,
there is no particular system for
attending to patients'
comments / complaints / sugges-
150
- : 150 : -
tions,
etc.
When the administrator was asked as
to how he handles any complaint by the patients,
the answer was that
they are
taken care of
as and
when they arise.
9.
According to the administrator of hospital 'A'
Consumer Protection Act
the
is somewhat beneficial to
the hospital as the doctors and staff may become a
little more careful and alert.
10.
In his opinion,
the Consumer Protection Act needs to
be modified ;
.
by adding a doctor too in the panel;
.
by imposing penalty on the complainant for
false complaints and false (undue)
.
claims;
by bringing the Government hospitals and
doctors also under the perview of the C.P.A.
11.
When the administrator was asked as to what would be
his attitude towards those patients who may sue the
institution or the employees,
he said that it depends
upon the merits of the complaints.
12.
The administrators's comments about the Consumer
Protection Act :
a)
It will improve the standard of medical profession
and the quality of health care services.
....151
MO- 17-0
. Xf
AH
- : 151
:
a hindrance to the profession/service.
b)
It is not
c)
It can be a means to check malpractice and quacks.
d)
It can destroy the image of the
e)
It will not dampen the spirit of service of the
institution
institution.
13.
When the administrator was asked whether the Consumer
Protection Act can cause closure of Voluntary Health
his reply was 'No'.
Care institutions,
14.
He
also said that
the Consumer Protection Act will not
deter more voluntary hospitals being opened
15.
in the future.
This administrator feels that Consumer Protection Act
can increase the
cost of medical care.
HOSPITAL 'B'
1.
The administrator of hospital 'B'
aspects of medical negligence.
negligence
2.
is aware of the legal
He thinks that the medical
is not a big problem in the country.
He is aware of the Consumer Protection Act,
to the Health Care
Insitutions.
as it applies
He thinks that it will
affect the medical profession and the health care
insti
tutions to some extent.
...152
- : 152 : -
3.
The
administrator informed that he had three
cases of
alleged medicals negligence during the period April
1992 to flarch 1993.
4.
The cases are pending still.
The administrator said that most of his health care
personnel are aware of the Consumer Protection Act and
its implications.
5.
He did not
respond when he was asked whether he has
tried to protect his hospital and his employees.
The
hospital is not yet insured against medical negligence;
it is under consideration.
6.
The areas of services in the hospital that are more prone
to medical negligence are the departments of surgery
and anaesthesiology equally in the first place and then
medical.
7.
The
categories of employees more likely to be
in negligent acts are the doctors and the
8.
involved
anaesthetists.
The administrator said that there is no particular system
in his hospital for patient's comments /
complaints /
suggestions.
9.
He
thinks
to the
that the Consumer Protection Act is beneficial
institution,
the sense of
to the extent that
responsibility of
this law increases
the medical personnel in
rendering care and treatment.
155
- : 153 : -
10.
The administrator of" this hospital thinks that the
Consumer Protection Act needs to be mod ified;Mod ifi-
cations suggested ;
It needs to be so modified as to
prevent 'speculative'
litigation inspired by a motive
of
gain.
The act has no provision for payment of
compensation to doctors who have been subjected to
unjustified and frivolous legal proceedings.
11.
When asked about his attitude towards those patients
who may sue his institution or his employees,
he said
that wherever the complaint happens to be prima facie
true and justified,
he sympathises with the patient
conce rned.
12.
His comments about the Consumer Protection Act are
as
follows :
a)
It will improve the standard of medical profession
and the quality of health care services.
b)
it is not a hindrance to the profession/service.
c)
It cannot destroy the image of the
d)
It can be
institution.
a means to check malpractice
and the
quacks.
e)
It will not dampen the spirit of service of those
institution.
...154
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
- : 155 : -
can to avoid mistakes and negligence.
them in acute
worry and anxiety with huge
Hou much more
careful do large claims make them than
they would be
if the claims were
HOSPITAL
1.
Why keep
claims?
about Rs.1
lakh?
'C'
The administrator is aware of the
medical negligence.
legal aspect of
He thinks that the medical negli
gence is a big problem in the country.
2.
The administrator isaware of the Consumer Protection
Act,
as it applies to health care institution.
also thinks that
He
it will affect the medical profession
and the health care institution to some extent.
3.
The hospital had faced cases of medical negligence.
During the period April 1992 to March 1993 there were
two cases.
4.
Now there is no case pending.
According to the administrator most of the
health care
personnel are aware of the Consumer Protection Act and
its implications.
5.
The administrator has tried to protect hospital and
employees from being sued by the patients / consumers
of the service by instructing them to take care of the
...156
I
- s 156 : -
patient and not to cause such situations.
The hos
pital is not covered by insurance against medical
negligence.
6.
The area of
services in the hospital that are more
prone to medical negligence are medical and surgical.
7.
The categories of employees who are more likely to
be involved
in negligent act are doctors,
adminis
trators and nurses.
8.
The administrator said that there was no particular
system for patients'comments / complaints / sugges
tions to be
attended to.
But it is under considera
tion.
9.
The administrator thinks that the Consumer Protection
Act is not beneficial to the
institution in any way.
It may cause more anxiety; it involves a lot of money.
10.
The administrator does not
know if the Consumer Protec
tion Act needs any modification or not.
11.
When asked about the administrator's attitude towards
those patients who may sue
employees,
the institution and its
the answer was that it is an eye opener to
all the doctors,
nurses and administrators.
...157
157 :
12.
The administrator's comments: -about Consumer Protection
Act.
a)
It will improve the
and the
standard of medical profession
quality of health care services.
b)
It is not a hindrance to the institution.
c)
It cannot destroy the image of the institution.
d)
It can be a means to check malpractice and the
quacks.
e)
It will not dampen the spirit of service of those
institutions.
13.
This administrator feels that the Consumer Protection
Act will not cause closure of voluntary health care
institutions.
14.
The Consumer Protection Act will not deter more
voluntary hospitals being opened in future.
15.
According to this administrator the Consumer Protection
Act tends to increase the cost of medical care.
16.
The administrator of hospital 'C'
had no further
comments or suggestions.
158
158
Analysis of qua stionnaire - administered
trators of Hospital 'a'
1.
The
,
'B'
and 'c'.
administrators of hospitals 'f\' ,
aware of the
to the adminis
'B'
and 'c'
are
legal aspects of medical negligence.
the administrators of
'fl'
and 'c'
While
think that medical
negligence is a major problem in the country the
administrator of hospital
differs in his thinking,
it is a 'No!
for him,
2.
' B'
All three
administrators are aware of the Consumer
Protection Act as it applies to the health care institu
tions.
'C'
While the administrators of hospital 'B'
and
think that the Consumer Protection Act will affect
the medical profession to some extent,
of hospital
'a'
the
administrator
thinks that it will affect the medical
profession to a great extent.
3.
All the three hospital administrators have faced cases
of medical negligence in the past one year.
'A'
and 'C'
Hospitals
had two cases (of medical negligence)
during the period of April 1992 to March 1993;
tal 'B'
be
had three cases.
cleared of both cases;
Hospital 'c'
each
Hospi
had managed to
the other two have got the
cases pending iill.
...159
159: -
:
4.
Administrators of all three hospitals feel that most
of their hospital employees / the health care perso
nnel are aware of
the Consumer Protection Act and its
implications.
5.
Hospital 'A'
has tried to protect the employees by
providing indemnity insurance.
Hospital
'Cz
tried
to protect them by instructing the employees to take
care of the patients and not to cause any situation of
medical negligence.
None of the three hospital administrators have
insured the hospital against medical negligence.
hospitals 'A*
and
'B*
are considering the matter,
While the
hospital
'C'
h_.s not given a thought to it.
6.
There is a difference in the opinion of three adminis
trators with regard to the areas of services that are
more prone to medical negligence.
of Hospital
'A'
The
has ranked Surgery as the most vulne
rable area for medical negligence,
then Medicine and
Anaesthesia comes in the third place.
trator
administrator
of hospital 'B'
The adminis
feels that Surgery and Anaes
thesiology are equally prone for medical negligence
and has ranked both in the first place and then Medicine.
160
I
- : 160 : —
According to the
administrator of hospital
,
the
a re as that are most prone for medical negligence is
Hedicine.
Nursing comes in the second place.
hospital 'Cz
This
does not seem to have faced any case of
medical negligence in the areas of Surgery and Anaes
thesia;
7.
The
they are not mentioned in the
response given.
administrators differ in their opinion regarding
the categories of employees more
in negligent act.
likely to be involved
Although all three of them agree
that the doctors are the ones most likely to be invol
ved in negligent act.
The administrator of hospital
'A’
includes himself too in the first place along with
doctors; then the anaesthetists; and the nurses are
ranked in the third place,
hospital 'Rz
whereas the administrator of
has left out the nurses altogether from
the categories of employees more likely to be involved
in negligent acts.
ries are
According to him only two catego
likely to be involved in medical negligence:
they are doctors first and then the
The administrator of hospital 'c'
anaesthetists in his list.
anaesthetists.
has not included the
According to him the doctors
and administrators are the most vulnerable
categories
and the nurses.
...161
: 161 :
8.
None of
three hospitals
the
The administrator of hospital
complaints are being taken care of
arise.
any particular
comments / complaints and sugges
system for patients'
tions.
seem to have
'a'
said that
as and when they
The other two administrators maintain silence
on this point.
9.
The administrators of hospital 'a'
seem to be
line of thoughts as both of them say that
on the same
the C.P.A.
and '0'
is beneficial to the institution to the extent
it increases the sense of
responsibility of the medical
personnel in rendering care
and treatment and
keeping
whereas the administrator of hospital 'c'
them alert,
differs on this point.
He views C.P.A.
as a caude of
anxiety and financial involvement.
10.
There seems to have
the
a certain degree of understanding in
responses of the
hospital 'B'
modified.
administrators of hospital 'A'and
on the point that the C.P.A.
needs to be
Both seem to suggest the same thing in diff
erent words,
namely,
i)
including the doctors in the panel of judges;
ii)
including the Government hospitals and doctors
under the purview of Consumer Protection Act;
162
and
“ ! 162 : ~
iii)
imposing
for false
penalty
complaints and
unjustified claims.
The administrator of hospital 'C'
to be
aware of/known whether the Consumer Protec
tion Act
11.
does not seem
requires modifications or not.
The attitudes of the three administrators towards the
patients
who may sue
their hospital / employees seem to
The attitude of
vary from each other slightly.
nistrator of hospital 'A'
of the complaint while
the admi
is that it depends on tile merit
the administrator of hospital 'Bz
seems to be sympathetic towards the patients provided
the complaint be prima facie true and justified.
administrator of hospital 'Cz
The
considers it as an aye
opener for self and the medical professionals.
12.
The administrator of the hospital 'Cr
positive
seems to be
as he feels that the Consumer Protection Act
cannot destroy the image of the institution.
this,
rather
all three of them,
Other than
have the same comments namely
that;
i)
the
C.P.A.
will improve the
profession and quality of
standard of medical
services;
..163
- : 163 : -
ii)
it is not a hindrance to the profession /
se rv i ce ;
iii)
it can be a means to check malpractice and the
quacks;
iv)
and
it will not dampen the spirit of service of those
institutions.
13.
The administrators of all the three hospitals seem to be
optimistic and of one mind when they say that the Consu
mer Protection Act will not cause
closure of the Volun
tary health care institutions.
14.
They do not feel either,
that the Consumer Protection
Act will deter more voluntary hospitals from being opened
in the future.
15.
All the three administrators seetp to be convinced
(although in varying degree)
that the Consumer Protection
Act tends to increase the cost of medical care.
16.
While the administrators of hospital 'A*
and 'Cz
were
not inclined to add any more comment / suggestion on
the subject,
to be
the administrator of hospital
rather generous with them.
'Bz
seemed
They are ;
164
- 8164
i)
i
Compensation over Rs.1
lakh should not be
admissible except in extra ordinary cases,
nature of
legally
the
which should be specified.
ii) The consumer protection act should perform a protec
tive function
sense of
-nd induce a hightened
res
ponsibility in medical personnel but should not
provide
a means to the
litigious persons and legal
professionals looking for an opportunity to make
big money.
Huge claims for Rs.10
lakhs or more,
show the strong
which are not particularly uncommon,
interest of litigants and their legal advisors in
making money.
After all most doctors are careful
in the way they work.
They do what they can to
avoid mistakes and escape negligence.
Uhy keep tham
in acute worry and anxiety with huge claims?
more careful do large claims make them,
than they
would be if the claims were about Rs.1
lakh?
The
responses gathered from the questionnaire,
filled in by the administrators of hospitals
'C'
How much
'ft',
'and
give the impression that there is certain amount of aware
ness among the health cars
ing degree though)
institutional authorities (in vary
about the Consumer Protection Act and its
implications to health care and medical profession as well as
tha legal aspects of medical negligence.
Some have already
taken steps to protect themselves and their
employees while
others are on the process of it.
...165
:
165
RESPONSES OBTAINED FROM THE ADMINISTRATORS
Hospital 'A'
1 .a. Aware of the legal aspects
I
of medical negligences
I
Hospital 'B '
Hospital 'C '
Yes
Yes
Yes
b. Medical negligence is a big
problem in the country
Yes
Yes
Yes
2«a« Aware of the Consumer Protec
tion Act as it applies to
health care institutions
Yes
Yes
Yes
To some
To some
extent
extent
Yes
Yes
Yes
b. How many ? From April 1992 tc March 1993 (no: cases)
Two
Three
Two
c. Cases pending now
Two
Three
Nil
Health care personnel in the
hospital are aware of the
C.P.A. and its implications
Most
Most
Most
5 .a. Have tried to protect the
hospital and employees from
being sued by patients
Yes
I
b. C.P.A. Will affect the medics 1 To a
profession and the health cai ■e great
institutions
extent
3.a. Have faced cases of medical
negligence in the (this)
hospital
'+.
b. 5y
Yes
By instruction
to take care
of the patients
and not to
cause such
situations.
Providing
the
indemnity
insurance
c. Hospital is covered by
insurance against
medical negligence
No
No
No
d. Insurance coverage of the
hospital is being
considered
Yes
Yes
No
1 66
I
Hospital 'A'
i
; Hie areas of services in the 1.Surgical
hospital that are more prone1 2 .Medical
to medical negligence
3.Anaesthesia
1
_____I
Categories of employees
1. Doctors &.
7.
Administra
I more likely to be involved
in negligent acts
tor
1 2.Anaesthethetists
3.Nurses
6.
8. a. have (a) particular system
for patients ' consents/
complaints/ suggestions
No.
b. Patients couuents/ complaints They are taken
suggestions are treated
care off as anc
when they come.
9.a. Consumer Protection Act
is beneficial to the
institution
b. Beneficial (by)
(if yes)
Somewhat
Doctors and
staff can be
nore alert
Hospital *B 1
Hospital ’O’
1 .Surgical &
Anaesthesia
2. tie di cal
1. Medical
2.tbrsing
1.Doctors
2.Anaesth
etists
1.Doctors
2.Adminis
trators
3•Nurses
No
Under
considera
tion
•
-
Yes
No
To the extent
this law
increases the
sense of reap onsibility of t♦he
medical perse rrnel
in rendering care
and treatmeni
c. Not beneficial (because)
(If no)
-
-
10.a. Consumer Protection Act
needs to be modified
Yes
Yes
This is
going to
cause more
anxibty &
financial
involvement
Don 't Know
167
• 167
I
Hospital ’A’
11.
12.
Hospital 'B 1
b. Suggestions for modifi
cation of C.P.A.
1 .A doctor to 1.Prevent
be in the
speculative
panel
litigation
2.Penalty for
inspired by
false compl
a motive to
aints and
gain
false claims 2.Provision
3.Government
for payment
hospitals &
of compen
doctors to
sation to
be included
the doctors
for false &
unjustified
complaints
Attitude towards tbbse
patients who may sue
the institute or
employees
Depends on the When the comp
merit of the
laint happens
complaints
to be prim
facia true &
justified
sympathises
with the
patient con
cerned.
Hospital '01
It is an
eye opener
to all the
doctors,
Nurses and
Administra
tors.
Comments about C.P.A.
a. Will improve the standard
of medical profession &
the quality of health
care services
Yes
Yes
Yes
b. It is a hindrance to
the medical professior/
service
No
No
Nd
c. It can destroy the image
of the institution
Yew
Yes
No
d. It can be a means to
check malpractice and
the quacks
Yes
Yes
Yes
e. It will dampen the spirit
of services of those
institutions
No
Ito
No
16®
:
168
Hospital
13-
u.
15.
16.
'A'
Hospital •B 1
Hospital 'C*
C.P.A. Causes closure of
voluntary healtn care
institutions
No
No
No
C.P.A. will deter more
voluntary hospitals
being opened in
future
No
No
No
C.P.A. will tend to
increase the cost of
medical care
Yes
To a small
extent
No
Other comments/suggestions
Hospital B :
- Compensation in excess of Rs. 1 lakh should
not be ligaily admissible except in extra
ordinary cases, the nature of which
should be specified.
r The C.P.A. should {oerform a protective
function and induce hightened sense
of responsibility in medical personnel.
but should hot provide a means to
litig^-^ions persons and legal profess
ionals who are looking for a chance to
make big money.
Most doctors are careful in the way they
work and with the C.P.A. hanging over their
heads even if the amount that might
have to be paid is less than Rs. 1 lakh
they do what the can to avoid negligence.
Why keep them in acute worry and
anxiety with huge claims ? How much
more careful do large claims make
them than they would be if the claims
were about Rs. 1 lakh ?
169
:
169
RESPONSES OBTAINED FROM DOCTORS
Questionnnaires were prepared for doctors and
distributed in three different hospitals.
The distribution
was planned in such a way that it could be
answered by
Total sample size was 60
various categories of doctors.
(sixty).
30 questionnaries were answered by the doctors
in Hospital 'A*,
'B'
20 in Hospital
and
10 in Hospital 'C*.
It was also divided in such a way so that 20 ques
tionnaires were
answered by General Surgeons;
Medicine (physicians);
and the
10 by General
remaining 10 by Anaesthetists
10 by the Obstetricians and gynaecologists and 10 by other
All of them having experience of 10 years
specialists.
and more.
The distribution done
HOSPITAL 'ft'
:
was as below;
with bed strength - 800
Sample size - 30
1.
General Surgeons
-
10
2.
Physicians
-
5
3.
Other Specialists -
5
4.
Anaesthetists
-
5
5.
Obstetricians and
Gynaecologists
-
5
30
...J70
-
:
170
:
with bed strength - 600
HOSPITAL * B'
:
Somple £>iz,e
1.
General
Surgeons
-
7
2.
Physicians
-
3
3.
Other Specialists
-
3
4.
Anaesthetists
-
4
5.
Obstetricians and
Gynaecologists
-
3
20
HOSPITAL *C*
:
with bed strength - 300
Sample size - 10
1.
General Surgeons
-
3
2.
physicians
-
2
3.
Other Specialists
-
2
4.
Anaesthetists
-
1
5.
Obstetricians and
Gynaecologists
-
2
10
Responses obtained Prom the doctors
HOSPITAL 'f\'
Sample Size - 30
1.
a)
Medical negligence is a major problem in the country
Yes
16
5 3. 3%
No
14
46.7%
171
:
53.3
171
per cent of the doctors considered medical
negligence is
a major problem in the
country.
But
the
remaining 46.7% were not very much aware of this problem.
b)
fiuareness of legal provisions in case of medical
negligence
To great extent
8
26.7%
Somewhat
18
60.0%
Not much
4
13.3%
Only 26.7% of the doctors who responded to the ques
tionnaire were well aware of the
medical negligence.
legal provisions in case of
Sixty percentage had some idea about it
but 13,5% were not at all aware of this fact.
2.
Provisions of C.P.A.
as it affects the medical profession
To great extent
12
40%
Somewhat
15
50%
Not much
3
10%
Fourty percent of the doctors seem to be aware of the
provisions of C.P.A.
to the medical profession a great extent
and fifty percentage had some idea and ten percentage of
were not much aware of
it.
172
them
172
3.
impact of C.P.A.
The
on medical proFession
Good
6
20%
Fair
17
56.7%
Bad
7
23.3%
Twenty percent of
of C.P.A.
the doctors think of the impact
on the med.leal profession as good and 56.7%
of them think it is fair.
impact of C.P.A.
4.
a)
C.P.A.
But 23.3% do think that the
on medical profession as ^ad.
will affect the doctor-patient
relationship;
Yes
17
56.7%
No
13
43.3%
Around fifty seven percent of the doctors feel
that the C.P.A.
will affect their relationship with
their patients and the other 43 percentage of them feel
that these things will not come in their way where
patients are concerned.
b)
According to the
response obtained from the doctors
of hospital ' f\' ,
if C.P.A.
patient
relationship
defensive medicine.
risk.
result,
be
affects the doctor
then they will have
resort to
They will be reluctant to take
They will be suspicious
about patients;
as a
their relationship with the patients will
an unnatural one.
-
:
!
173
~
I
5.
a)
Membership in
I.PI.A.
|
Yes
13
43.3%
|
No
17
56.7%
About fortythree percent of
the doctors are
I
members of
Indian Medical Association where as
|
majority of
them in this hospital do not belong
to this association.
I
I
b)
■
Application of C.P.A.
to the medical profession ;
Yes
17
56.7%
No
13
43. 3/b
Almost fiftyseven percent
—
of the doctors are
"
in favour of the
|
rendered by the medical profession whereas the
application of C.P.A.
to the
service
rest
of them about fortythree percent are not in favour.
I
m
6.
a)
Individual-Professional indemnity insurance :
B
Yes
9
30%
|
No
21
70%
Among the doctors who responded to the
tionnaire only thirty percent have the
u
ques
individual
174
:
174
indemnity insurance against medical negligence;
the other seventy percent have not yet
insured
themselves.
b)
indemnity insurance through the
Professional
institution
;
Yes
30
100%
No
0
0
Hospital 'A*
has provided all the
l,its)
doctors with professional indemnity insurance.
c)
Feel the need to be insured
:
Yes
12
40%
No
1
o.3%
While forty percent of its doctors feel the
need to protect themselves through indemnity insurance
only a very small percentage of them express that
they do not feel the need for it.
The
rest of the
doctors have abstained from expressing an opinion.
d)
Insurance premium against medical negligence
Very high
6
20%
Reasonable
18
50%
One fifth,
i.e.,
;
twenty percent of the doctors
feel that the insurance premium is very high.
Sixty
....175
175
percent find it
not expressed
7.
-
reasonable.
Twenty percent have
their feelings on the matter.
affects the professional f reedom
C.P.A.
Ye s
18
60%
No
12
40%
Sixty percent of the doctors think that
the C.P.A.
has an influence on their professional freedom.
The other
forty percent do not think in that way.
8.
a)
C.P.A.
needs modifications:
Yes
24
80%
No
1
3.3%
Eighty percent of the doctors think that if C.P.A.
continues to be applicable to the service
the doctors,
(3.3%)
of doctors feel it does not
cation.
A small minority
require any modifi
About seventeen percent of the doctors have not
expressed
b)
it needs to be modified.
rendered by
their views regarding this modification.
modifications suggested by some of
make C.P.A.
the doctors to
more applicable to their services;
To include doctors also in the panel;
To protect the
reputation of the concerned doctors
.... 176
I
-
: 176
:
-
- To bring the Government hospitals and its
doctors under the purview of
the Consumer
Protection Act.
- To make provisions
for payments to be made
to the doctors by the patient for baseless
and false complaints.
9.
a)
I.M.C.
can handle the problem of medical negligence
efficiently:
Yfes
13
4 3. 3%
No
16
53. 3%
Majority of the doctors (53.3%)
Indian Medical Council is not
the
authority,
negligence,
feel that the
able although
it has
to handle the problems of medical
efficiently.
Less than half
(43.3%)
feel that it is capable of handling them.
small percentage
(3.3%)
of
A very
the doctors have not
voiced their opinion.
b)
Modification of the
I.M.C.
Yes
8
26.6%
No
8
26.6%
Act will make it adequate
177
Ml
:
small percentage (26.6%)
A
responded to the
questionnaire is of
modifications will make the
number (26.6%)
adequate.
of the doctors who
I.M.C.
the opinion that
Act adequate.
An equal
feel that modification will not make it
Almost half of the doctors have not made any
comment on the subject.
c)
Some of the suggestions for modification of the
I.M4).
Act:
- Power to fine the doctor and award damages to
the patient.
Power to monitor the C.P.A.
monitoring the
instead of the C.P.A.
I, M.C.
- Power to monitor the professional competence of
the doctors.
- I.M.Q.
should ensure quality doctors and not the
rotten ones of today.
- Maintain the
standard and quality jn the private
clinics and nursing homes.
10.
Have faced problem in managing patients because of C.P.A.
Yes
1
3.3%
No
29
96.7%
Grand majority $96.7%}
of the doctors agree
that they have not faced any problem in managing patients
178
• 178
because of C.P.A.
It is only a very small percent of
3.3 of the doctors that has faced such problems.
11.
Pleasures taken towards self protection
Some of the measures that are taken by the doctors
to protect themselves in the above mentioned situations
are
that :
- By explaining everything in detail to the
patients and when necessary to the
regarding the patients condition,
•
relatives
the treatment
involved and the prognosis.
- By communicating to the patient
in writing.
- By increasing the professional fee,
to meet the
insurance cost.
12.
In view of C.P.A.,
the
steps that can help to
avoid litigation and its effects are
a)
as below:
large majority of
the doctors in hospital 'A
i.e., 93.3% of them,
agree that they need to
A
provide proper explanation to the patients
before and after each procedure / treatment.
bj
Around sixtyseven percent of the doctors here
feel that regular visit to the patient to make
sure that the patient
is comfortable and gets
all care is important.
179
-
c)
: 179
Almost eightyseven percent of the doctors are
convinced
that they have to get the patient's
consent before every procedure/treatment.
d)
About sixtythree percent of the doctors want to
avoid
taking any risk.
others and
e)
They prefer to consult
refer the patients to other specialists.
In this hospital 33.3% of
the doctors feel safer
by providing the emergency treatment and then
refer
the patient to more competent persons.
f)
One doctor (3.3%)
suggests that proper medical records
Importance should be given to
should be maintained.
audit and self assessment.
13.
C.P.A.
will improve the
standard of medical profession
and quality of care :
Yes
6
20%
No
5
16.7%
To an extent
17
56.7)?>
Twenty percent of the doctors are sure that C.P.A.
will improve the standard of medical profession and the
quality of health care services.
Majority of them
(56.7%) feel that to an extent it will improve the
180
I
: 180
standard and the quality of
A small percen
17.7% feel the contrary.
tage of
b)
service.
Those,
who are positive about the imporvement in
the standard of profession and quality of services,
that the C.P.A.
vigilant,
will make
responsible,
to exercise
the doctors more careful
accountable and will inspire them
better judgement use
reasonable care in their
decision and treatment of the patient.
the C.P.A.
say
They feel that
is an ideal means to check the quacks and
stop the unethical and poor quality of medical care
se rvices.
Those who differ give their reasons ;
c)
- C.P.A.
makes the medical professionals to be
ruled
by fear always.
- It has no control over the Government hospitals and
doctors
- It encourages defensive medicine.
14.
C.P.A.
resort to defensive medicine;
will make doctors
Yes
24
80%
No
5
16.7%
181
:
Eighty percent of
that C.P.A.
-
:
181
the doctors in hospital
'f\' feel
will make them resort to defensive medicine.
A minority of
16.7% do not feel thus.
3.3% of
the
doctors have not expressed their opinion on this matter.
15.
C.P.A.
increases the cost of medical care ;
Very much
14
46.7%
To some extent
15
50%
Not at all
0
0%
Exactly half of the doctors - fifty percentage of
them feel that the C.d.A.
will increase the ;cost of
medical care to some extent.
A slightly smaller percentage
(46.7%) of them feel that it will increase very much.
3.3%
of the doctors have not said anything about it.
Responses obtained from some of the doctors in hospital
16.
'Az
regarding their honest reaction to the patient who may
sue them are as follows;
If I am wrong I will accept my fault.
fault,
If
I
am not at
then I will counter sue the patient in the law
court.
-
I do my best for the patient.
I am not going to be
bothered with these complaints.
I will be polite,
but
I will defend myself
182
: 182
-
I will use defensive medicine
- I will be outrageous
- I will react legally
- I
will have nothing more to do with that patient
Other comments and suggestions
17.
- Out of
court settlement is always better.
- Do not
let the lawyers be
- C.P.A.
is good;
involved in it.
but must include in,the
Government
hospitals and doctors
- Awareness has to be increased among the doctors
- Pledical personnel must be included in the panel
- Doctors
and patients need to be educated on C.P.A.
RESPONSES OBTAINED PROW DOCTORS OF HOSPITAL * B*
Sample size.
1.
a.
20
Medical negligence is a major problem in the country
Yes
10
50%
No
10
50%
Fifty percent of the doctors in hospital '8*
feel that medical negligence is a major problem in the
country.
But the other half of
them do not feel so.
185
t 183
b.
Auareness of
legal provision in case of medical
negligence
To great extent
7
35%
Somewhat
11
55%
Not much
2
10%
Thirty five percent of the doctors are aware
of the
legal provisions in case of medical negligence
to great extent.
The majority of
them that is fifty
five percent of them have some ideas about
Ten percent of
it.
the doctors are not very much aware of
them.
2.
Provisions of C.P.A.
as it
affects
the medical profe-
ssion
To great extent
9
45%
Somewhat
8
40%
Not much
3
15%
45% of the doctors are aware of the provisions
of C.P.A.
extent.
as it affects the medical profession to great
Forty percent are aware of it to a certain
extent making a total of 85%.
15% are not very much
aware of it.
184
5 184
3.
The
impact of C.P.A.
on medical profession
Good
4
20%
fair
8
40%
Bad
8
40 %
Only twenty percentage of doctors in hospital
' 8Z
think that the impact of C.P.A.
ssion is good.
on medical profe
While forty percent of
its impact is fair,
them think that
the other forty percent view it
as bad,
4.a.C.P.fi.
will affect the doctor-patient relationship
Yes
15
75%
No
5
25%
While
seventyfive percent of the doctors think
that the C.P.A.
patients,
b.
As per the
will affect.their relationship with their
twenty five percent of them think the other way.
response obtained,
C.P.A.
will affect them in
such a way that they will be forced t^5 use defensive
medicine,
avoid taking any risk and finally end up in
problem for the patient.
They feel that with the C.P.A.
in action they will have an unnatural relationship
their patients.
185
with
186
b.
Professional indemnity insurance through the
institution
Yes
0
0
No
10
100%
None of the doctors are insured by the insti
tution .
c.
feel the need to be insured
Yes
18
90%
No
2
10%
Ninety percent of the doctors feel the need
to be
insured
while the
against professional/medical negligence
remaining ten percent do not feel the need
for it.
d.
Insurance premium against medical negligence
Very high
2
10%
Reasonable
11
55%
Majority (55%)
of the doctors feel that the
insurance premium is reasonable while ten percent of
them feel that it is very high.
Thirty five percent
of the doctors have not voiced their opinion on this
matte r.
18?
-
7.
C.P.A.
: 187
I
-
affects the professional freedom
Yes
19
95%
No
1
5%
The
smallest possible percentage of doctors
respondents feel that the C.P.A.
among the
affect thek p rof essional freedom.
All the
(5%)
will not
rest which
makes 95% of the doctors feel very strongly that the
8.
a.
C.P.A.
will affect their professional freedom.
C.P.A.
needs modification
Yes
19
No
0
95%
Ninety five percent of the doctors responded
feel that the C.P.A.
continue
them.
needs to be modified,
if it is to
to be applicable to the service rendered by
The
remaining five percent have not said any
thing about the need for modification.
b.
In order to modify the C.P.A.,
some of their sugges
tions:
.
Include the doctors in the panel of judges.
.
Bring the
government hospitals
and doctors also
under the purview of C.P.A.
188
188
.
Compensation must be awarded to the doctors falsely
accused.
.
9.
a.
Protect the
I.M.C.
reputation of
the doctors.
can handle the problem of medical negligence
efficiently
Yes
8
40%
No
12
60%
Majority of the doctors
that
the
(sixty percent)
Indian Medical Council is not able to handle
the problems of medical negligence effiently.
forty percent are for the
b.
feel
Modification
I.M.C.
Only
handling them.
is required to make the I.M.C.
Ret (rtore)
ade quate.
Yes
11
55%
No
3
15%
Fifty five percent of the doctors feel that
the
I.M.C.
Act must be modified so that it will become
capable of handling the problems of medical negligence
efficiently.
Only 15% do not feel the need for modi
fication of the act.
30% of the doctors have not
responded.
... 189
189
:
Some of the suggestions brought out by these
c.
towards the modification of the
.
Power to
Ret ;
I.fl.C.
raise the standard of
doctors
t
the medical profe
ssion and quality of services especially in the
private clinics and nursing homes.
.
Power to monitor the professional competence of
the doctor.
.
Power to punish the negligent doctors and
award
the damages.
.
Power to monitor the C.P.A.
Have faced problem in managing patients because of C.P.A
10.
Yes
0
0
No
19
95%
Ninety five percent of the doctors
have faced any problem because of C.P.A.
seem not to
The
remaining
five percent has not given any response to this question.
1 1.
Pleasures taken towards self protection
In order to protect self some of the measures taken
as per the responses are
.
:
Proper explanation and information provided
patients and relatives,
treatment
to
regarding their illness,
and the expected outcome.
.190
: 190
.
Communicating to
.
Personal
the patient in writing
indemnity insurance,
is charged
the cost of which
to the patients.
Defensive medicine
.
12.
,
Some of the
will help
steps that the doctors are in favour which
to avoid
litigation and its effects in view
of C.P.A.:
a.
Eighty five percent of the doctors feel that proper
explanation before
b.
and after treatment
is helpfuj_«
Eighty percent of the doctors are convinced that
consent before any treatment is a must.
c.
Seventy percent of the doctors agree that regular
visits,
ensuring the comforts and care to the
patients will avoid
d.
litigations.
Sixty five percent of the doctors prefer to avoid
taking any risk.
e.
Forty five percent of the doctors are for giving
the emergency treatment and then refer the patient
to a more competent
f.
Two doctors jj
ment
and
person.
ten percent
jj
suggest proper treat
good rapport with the patients and their
relatives to avoid litigation and its effects.
191
191
13.
a.
C.P.A.
the standard of medical pro
uill improve
fession and
quality of medical services
Yes
3
15%
No
3
15%
13
65%
To an extent,
Yes
While fifteen percent of the doctors are convin
ced that C.P.A.
profession and
will improve
the
standard of medical
quality of medical service,
percent of the doctors agree that
sixty five
to an extent it uill
improve
the standard and quality of the medical profe
ssion.
This makes a total of 80%.
Only 15% disagree
comple tely.
b.
Those doctors
who are optimistic about the C.P.ft.
improving the standard of the profession
and
quality of service strengthen this statement by
adding their views.
.
C.P.A.
is the weapon to weed out
the quacks,
to strai
ghten the unethical doctors and their poor quality
se rvices.
.
It will enable the doctors to be
them to be
accountable,
prompt
careful and vigilant and enable them also
to accept responsibility for their own words and deeds.
... 192
: 192
c.
who entertain the negative feelings state that
Those
it is like the
rod
against the doctors.
It makes
discremination as the Government hospitals are excluded
from it.
14.
C.P.A.
will make doctors
resort to defensive medicine
Ye s
20
100%
No
0
0
All the doctors to whom the questionnaire
distributed
unanimously
agree that C.P.A.
were
will make
them resort to defensive medicine.
15.
C.P.A.
will increase the
cost of medical care
Very much
15
75%
To some extent
5
25%
Not at all
0
0
Seventy five percent of doctors
very sure that the C.P.A.
medical care.
responded
will increase the
cost of
Twenty five percentage of them feel that
it will increase the cost to some extent.
it that all the doctors think that the
care
are
This makes
cost of medical
will increase due to C.P.A.
195
!
16.
193
!
hospital
The
responses of some of the doctors in the
'B
regarding their reaction towards the patient who
may sue the doctors are as follows:
.
If
I am sued
then I
.
I
and if negligence
will sue him in the
will be
is not proved,
court.
indifferent to such patient there-
af fee r
17.
.
I will use defensive measures.
.
I will teach him a lession,
.
I
will warn him to be careful
Other comments and suggestions
.
Include the doctors in the panel of judges.
.
Include the Government sector.
.
Discourage the involvement of lawyers who make
it a means to earn easy money.
.
Create awareness among the doctors and patients.
.
Strengthen
the
I.fl.A.
and the
I.fl.C.
194
: 194
RESPONSES OBTAINED FROM THE DOCTORS OF HOSPITAL ’C1
Sample size
1.
a.
10
Medical negligence is a major problem in the country
Yes
7
70%
No
3
30%
Seventy percent of the doctors in this hospital
think that medical negligence is a major problem,
the country,
in
whereas the remaining thirty percent do
not think this to be a major problem.
b.
Awareness of
legal provision in case of medical negli
gence
To great extent
2
20%
Somewhat
5
50%
Not much
3
30%
Twenty percent of the-doctors seem to be aware
of the
legal provisions in case of medical negligence,
to a great extent while fifty percent of the doctors
are somewhat aware of it.
Thirty percent of them are
not much aware of this fact.
195
: 195
2.
Provision of C.P.A.
as it affects the medical profession
To great extent
3
30%
Somewhat
5
50%
Not much
2
20%
Thirty percent of the doctors who responded are
aware of the provisions of C.P.A.
medical profession.
as it
affects the
Fifty percent of them have
idea about it while the
some
remaining twenty percent has
very little of it.
3.
The impact of C.P.A.
on the medical profession
Good
3
30%
Fair
6
60%
Bad
1
10%
Thirty percent of the doctors responded consider
the C.P.A.
profession,
to be having good impact on the medical
whereas majority of them,
i.e.,
percent think its impact is fair and the
sixty
remaining ten
percent consider it as bad.
....196
;
-
4.
a.
ig6
:
-
will affect the doctor-patient
C. P. A .
Yes
5
50%
No
5
50%
fifty percent of tho doctors
that
the C.P.A.
of
them do nnt
C.P.A.
will make them have
cine.
They will be
very
5.
a.
with
think so.
will affect their
relationship with their patients
patient
responded feel
remaining fifty percentage
who feel that the C. P . A .
Those
who
will affect their relationship
their patients whereas the
b.
relationship
remark that the
resort to defensive medi
always suspicious about every
who goes to the doctor and also they will be
reluctant to take any
Member of
risk.
I. H. A .
Yes
5
50%
No
5
50%
the doctors who
fifty percent of
members of the
responded are
Indian f'leaiical Association while the
remaining fifty percent are not.
b.
Application of C.P.A.
to the medical profession
Yes
4
40%
No
6
60%
•197
•• 197
Majority consisting of
sixty percent of
doctors are not in favour of the C.P.A.
to
the medical profession
the doctors.
and
the
the
being applied
service rendered by
The other forty percent of them have no
objection.
6.
a.
In dividual professional indemnity insuranc e
Ybs
3
30%
No
7
70%
While a smaller 30% of
ponded have
the doctors who
res
the professional indemnity insurance
individually the majority of seventy percent of
them
do not have it.
b.
professional indemnity insurance through the insti
tution
Ye s
0
0
No
10
100%
None of these doctors are
insured by the
institution in which they work.
c.
Feel the
need to be
insured
Yes
5
50%
No
1
10%
..198
“
!
198
:
Fifty percent of
"
these doctors feel the need
to be insured whereas only ten percent
they do not feel the need to be
have said that
Forty per
insured.
cent of the doctors have not given their response to
this question.
d.
Insurance premium against medical negligence
Very high
2
20%
Reasonable
5
50%
Among the
seventy percent of the doctors who
responded to this question twenty percent feel that
it is very high.
Fifty percent feel that
the insurance
premium against medical negligence is reasonable.
7.
C.P.A.
affects the professional freedom
Yes
5
50%
No
5
50%
Fifty percent of the doctors feel that the
C.P.A.
affects their professional freedom while the
other fifty do not feel that the C.P.A.
comes dn
their way.
199
:
8.
a.
C.P.A.
199
needs modification
Yes
7
70%
No
2
20%
The majority (seventy percent)
are convinced that the C.P.A.
of the doctors
needs to be modified
whereas twenty percent of the doctors do not think
b.
so.
Ten percent remained silent on this matter.
Some
of the suggestions that were brought out by
the doctors of hospital 'Cr.
- Protect the reputation of the
concerned doctors
- Include the doctors in the panel.
- Bring the Government hospitals and the government
doctors also within the purview of the
Act.
- Provision for the compensation of the doctors and
hospitals that were falsely found fault with.
9.a.
I.fl.C.
can handle
the problem of medical negligence
effici-ently
Yes
5
50%
No
5
50%
200
: 200
The do ctors who
responded
to this question
While the fifty percent
are of divided opinion.
of them are convinced of the efficiency of the
I.M.C.
in the matter an equally strong fifty percentage feel
the other way.
b.
Modification of the
I.M.C.
Act will make
it adequate
Yes
5
50%
No
1
10%
Fifty percentage of the doctors feel that the
modification of the I.M.C.
Act will make
ten percent disagree on this point;
it adequate;
forty percent
remained silent.
c.
The suggestions brought out by the doctors towards
the modification of the
I.M.C.
Act;
«
Power to fine and awared damages.
.
Power to monitor the professional competence of
the doctors.
.
Power to have more control over the private
and nursing homes where
standard
and
clinics
quality need
to be ensured.
.
Power to monitor the C.P.A.
monitoring the
instead of C.P.A.
I.M.C.
.... 201
: 201
10.
Have faced problem in managing patiants because of
C.P.A.
Yes
0
0
No
10
100%
None
of the doctors who
responded seem to have
faced any problem in managing patients because of C.P.A.
11.
Pleasures taken towards self protection
.
Proper explanation to the patient,
providing the
patient with all the necessary information
informed
and secure
consent.
.
Communicate to the patient in writing
.
Maintain the proper and essential medical records
.
Having the professional indemnity insurance.
.
Meeting the insurance cost by passing it on to the
patient.
12.
Main steps to avoid litigation and its effects in view
of C.P.A.
a.
provide proper explanation to the patient before and
after every treatment / procedure.
Hundred percent
of the doctors agree on this point.
• • • « 202
-
b.
:
202
:
Make ths patient consent before every procedure /
treatment.
Ninety percent of
the doctors are con
vinced of this need.
c.
Seventy percent of
honesty with
d.
the doctors feel sincerity and
the patient is the step
that
will really
lead you away from litigation
and its effects.
Regular visits to the patient
to ensure that he is
comfortable and gets all care.
Sixty percent of the
doctors think in this way.
e.
Provide emergency treatment and then
to more
refer the patient
Sixty percent of the doctors
competent persons.
think it is a good step to be taken.
f.
Avoid taking risks,
consult other doctors and
the patients to the other specialists.
refer
Only forty
percent of the doctors favour this idea.
13.
a.
C.P.A.
will improve the
standard of medical profession
and the quality of service
Yes
3
30%
No
5
50%
To an extent yes
2
20%
203
;
20?
Thirty percent of the doctors are of the
opinion that C.P.A.
will improve
medical profession and the
the
standard of
quality of
services.
Twenty percent feel that it will improve the
dard and the
stan
quality in the field to an extent while
fifty percent strongly disagree.
b.
Those who are of the opinion that it will improve
the standard of the medical profession and the quality
of service,
.
C.P.A.
support the statement by saying that,
will make the doctors alert,
Vigilent,
exercise
responsible,
accountable;
careful,
they will
better judgement and reasonable degree
of care in their decisions and treatment of the
patient.
•
They are convinced that it is an ideal means to check
the
c.
quacks and
stop malpractice.
Those who differ on the point give their reasons:
•
C.P.A.
will be
the
rod and the doctor will be
always ruled by fear.
.
It has no control over the health care and the
medical profession
in the Government
sector.
204
204
.
It makes doctors to re sort to defensive
medicine.
14.
C.P.A.
will make doctors resort to defensive medicine
Yes
7
70%
No
3
30%
While
seventy percent of the doctors are con
vinced that C.P.A.
will make them resort to defensive
thirty percent of them do not think so.
medicine,
The
remaining ten percent have not voiced their opinion.
15.
the
cost of medical care.
Very much
6
60%
To some extent
2
20%
Not at all
1
10%
C.P.A.
will increase
Sixty percent of the doctors strongly feel
that the C.P.A.
will increase the cost of medical care.
Twenty percent of them feel that it will increase the
cost only to some extent while ten percent do not think
that C.P.A.
will make
any difference in the medical care
where cost is concerned.
have not given
Tan percent of
the doctors
their view on the matter.
. 205
B3 of medical negligence
Radical negligence may assume a variety of forme.
1.
Negligence in diagnosis :
A proper diagnosis of the
illness is the first duty of a medical practitioner.
A wrong diagnosis leading to any injury to the patient
may invite liability in law.
2.
Negligence in diagnostic aide :
Adequate investigations
using acceptable means of diagnostic aids
necessary
for arriving at a proper diagnosis.
It may be necessary
to consult an expert in some cases.
If there is negli
gence on the part of the practitioner to seek expert
advice in a given case, (e.g.: interpretation of an
x-ray film), the doctor may be held liable.
3.
Administration of drugs
Doctors and nurses have been
;
held liable tor negligent
administration of a drug
leading to death or injury of a patient.
4.
Failure to take precaution :
Every medical practitioner
is expected to take reasonable precaution in the treat
ment of his / her patients.
There are certain drugs
which are known to cause adverse reaction to certain
patients.
Such drugs are to be administered only after
test dose has been administered.
Otherwise, the doctor
can be held liable for negligence.
5.
Consent of the patients : In a surgical ope ration or any
intervention on the body of a person, the written consent
of the person concerned is necessary if she/he is capable
of giving it.
If she/he is unable to give such a
consent, someone competent should be asked to do it on
his/her behalf.
If a surgeon operates upon a person
without or against the consent, he/she can be held legally
liable for negligence,
6.
Failure to give advice :
A doctor can be held legally
liable if, due to lack of reasonable skill and care,
he fails to give advice or undertake treatment which
was necessary in the circumstances.
An honest doctor
must either personally consult or refer his/her patient
to a more competent doctor if the practitioner cannot
arrive at a reasonable degree of certainty with regard
to proper diagnosis.
7.
The operation theatre ; A number of litigations emanate
from the operation theatre.
These cases mostly relate
to negligence in respect of activities connected with
the operation process such as :
of the theatre;
Unhygienic conditions
negligence with regard to the sterili
sation of instruments, gloves, linen, etc.
Inadequate
preparation of the patient for the operation; leaving
sponges, forceps or other instruments inside the patient's
body; burns or other injuries caused in the course of
treatment / operation, etc.
ft person who holds himself out as a medical practitioner
impliedly undertakes that he
is possessed of the
skill and knowledge for tho purpose.
the patient certain duties,
a)
a duty of care
requisite
Such a person owes
namely,
in deciding whether to undertake
i-. case or not;
b)
a duty of care
in deciding what treatment
to give;
a duty of care in the administration of that
treatment
d)
and a duty of care in answering questions put
i
to him by the patient,
in circumstances in
U which he knows that the patient intends to rely
11
on his answer.
ft breach of these duties will support an action for
negligence oy the patient.
a.
Personal liability ;
Individual staff members are personally liable for
the consequences of their acts.
This liability is almost
always based on the principle of fault.
To be liable, the
person must have done something wrong or roust have failed
to do something that should have been done.
b.
Liability for employees and agents ;
Employers can be liable for the consequences of the
job-related acts of their employees or agents even if the
employer is not at fault personally.
c.
Institutional liability : Institutions can also be liable
for the consequences of breaches of duties owed directly to
the patients and others, such as the maintenance of buildings
and grounds, maintenance of equipments and furnitures, and
selection and supervision of employees and medical staff.
Vicarious liability
As a general rule a man is responsible I liable only
for his own act; but there are certain circumstances in
which a person is liable for the urong committed by others.
This is called Vicarious liability.
92
The Act says,
Consumer Protection Act ;
"Consumer
Protection Act is an Act to provide for better protection
of the interests of consumers and for that purpose to make
provision for the establishment of consumer councils and
other authorities for the settlement of consumer's disputes
and for matters connected therewith."
39
It provides for better protection of the interests
of consumers and for the purpose, makes provision for the
establishment of consumer councils and other authorities
for the settlement of consumer disputes and for matters
connected therewith.
"It seeks, inter alia,
to promote and protect the
right of
consumers such as;-
(a)
right to be informed about the quality,
the
potency,
purity,
standard,
quantity,
and price of goods to
protect the consumer against unfair trade practices;
( bj
the
right
to be protected against m..rketing or
goods unich are hazardous to
tne
life and
property;
rignt to be assured wherever possible,
accesss
to an authority of goods at competitive price*
(d)
the
right to be heard and to oe assured that
consu i<ers
interests will
receive due consideration
at appropriate forums;
(e)
the
right to seek redressal against unfair trade
practices or unscrupulous explanation of consumers*
and right to consumer education.
These objects are sought to be promoted and protected
by the Consumer Protection Council to be established
at the Central and State level.
Medical Negligence
Legal remedy
Criminal liability:(section 304A,IPC): Grossly rash or
grossly negligent act, which is proximate, direct or
substantive cause of patient's death.
Ciyil_liability:(sections 73 and 74 of Indian Contract
Act): Medical services rendered on payment of a fee.
Law of torts; Breach of contract, whether patient pays
or not.
Consumer Protection Act.
A
ft ,
AU
Ui.
sv, u^. A n^v^:
V/»
yAxJscvuxtv^
MS. 'j»0>J*i*<£
WT. 4A^WX^xCa^<X<jl*sx«^
?Je
(ey>
Itr krJ^
AsKuZtix^£ . N'c^tc^eAAjt*
zv^|lxZSja.
: 205
16.
Sincere
reaction to the patients who may sue the
doctor
Some of the doctors who expressed their reaction
to the patient who may sue them stated ;
.
I
will accept the fault
if
I am guilty.
If not,
I will counter sue him in the civil court.
I will tepch him a lesson
.
by not attending to him
t he reaf te r.
This is not going to bother my life.
.
I will carry
on with my work.
Why should
.
17.
I worry if
I carry a clear conscience?
.
I will be polite but will react legally.
.
I
will defend myself in the court.
Other comments and
.
ft
suggestions
"Legal Cell" of medical professionals must be
formed to fight the lawyers who support the C.P.ft.
for whom it is a good source of
income.
.
More discussions before legislation.
.
C.P.ft.
in itself is good.
But the discrimination
makes it bad.
.
Include doctors in the panel.
.
C.P.ft.
is good if properly used.
•••206
-
: 206
t
-
COMPARATIVE ANALYSIS OF THE RESPONSES OBTAINED FROM THE
DOCTORS OF HOSPITAL 'A'
1:
a.
,
' B'
AND
'C'.
Medical negligence is a major problem in the
[
!
Hospital A
!
Hospital B '
country
Hospital C
'Total
Responses;
o b t a in e d
10
60
i
—;
Sample
Size
30
20
Ye s
16
5 3. 3%
10
50%
7
70%
33
55%
No
14
46.7%
10
50%
3
30%
27
45%
While comparing the opinions of the doctors from the
three hospitals,
it is evident that the doctors in hospital
'c'
seem to consider that medical negligence ig a major problem
in the country,
and
'B*
much more than the doctors in hospitals 'A'
which are more
or less
on the same level.
whole majority of the doctors (fifty five percent)
On the
think that
the medical negligence is a major problem in the country.
b.
Aware
of the legal provisions in case of medical negligence
Hospital A
Hospital B
Hospital C
30
20
10
Sample size
Total
Responses
obtained
60
I
To great
extent
8
26.7%
7
35%
2
20%
17
28. 3%:
Somewhat
18
60ft
11
55%
5
50%
34
56.7%
Not much
4
13.3%
2
10%
3
30%
9
15%
.. .207
-
: 207
:
"
Majority of the doctors are somewhat aware of
legal provisions in case
seven percent of
of medical negligence.
them in total have
Fifteen percent of
About fifty
some idea about it.
Twenty eight percent of them are aware of it,
extent.
the
to
them do not seem to
a great
know much
about it.
2.
Aware of the provisions of C.P.A.
as it affects the
medical profession.
Hospital A
Hospital B
Hospital C
<3o
Sample size
Total
Re sponse s
(C
To great
extent
12
40%
9
45%
3
30%
24
40%
Somewhat
15
0 0^6
8
40%
5
5 0%
28
46.7%
3
10%
3
15%
2
20%
8
3. 3%
Not much
_____________
Comparison' of the doctors'
of C.P.A.
awareness of the provision
as it affectsthe medical profession
half of them (46.7%)
are somewhat aware only.
are aware of it to a great extent;
shows that about
Forty percent
13.3% do not know much
about it.
208
:
208
!
"
Impact of C.E.A. on medical profes sion
I
I
I
I
Ho spital A ■ Hospital B | Hospital C
i
p.
I
j-
Sample
I
size
30
20
Total
Re sp on se s
10
60
Good
6
20%
4
20%
3
30%
13
21.5%
Fair
17
66.7%
8
40%
6
6 0%
31
51.7%
Bad
7
2 3. 3%
8
40%
1
10%
16
26.7%
Majority of
the doctors in all three hospitals consider
the impact of C.P.A.
on the medical profession to be fair.
21.6/o of thorn view it as good;
On the
seems to be
C.P.A.
4.
the
whole,
26.7% considers it as bad.
on the medical profession
impact of C.P.A.
rather encouraging.
will affect the doctor-patient relationship
Hospital A
Hospital 8
______ ___ ____
Hospital C
20
10
feample size
s
;No
Total
Responses i
60
17
56.7%
15
75%
5 -:
50%
37
61.7%
13
4a.3%
5
25%
5
5 0%
23
38.3%
A majority of doctors in total think that C.P.A.
affect their relationship with their patients.
'B'
will
In hospital
seventy five percentage of them are convinced that it is
going to affect their relationship
in Hospital ' f\'
,
with their patients.
'.Jhile
in the
in
smaller majority feels
same
way,
Hospital 'C',
there is an equal division in the way they think
about C.P.A.
On the
whole,
majority of them reveal concern.
209
;
:
209
Those who thought that C.P.A.
b«
with their patients,
their relationship
said that because
they will be forced to resort to defensive medi
of C.P.A.,
cine,
is going to affect
avoid taking risks and they will have
an unnatural
relationship with their patients.
5.
a.
membership in I.PI.A.
Hospital A
Hospital 8
Hospital C
Total
Responses
Zo
Io
Go
So
Sample Size
Ye s
13
4 3. 3%
17
85%
5
50%
35
58.3%
No
17
56.7%
3
15%
5
50%
25
41.7%
Comparative responses of
the doctors from the three
hospitals indicates that 58.3% of the doctors in total are
members of the Indian medical Association while 41.7% do not
belong to this association.
b.
In favour of the application of C.P.A.
to the medical
p rofession
Sample
Hospital A
Hospital B
Hospital C
30
20
10
size
Tot al
Responses
60
I
Yes
17
56.7%
13
65%
4
40%
34
56.7%
No
13
43. 3%
7
35%
6
60%
26
4 3. 3%
210
210
This question was answered by every doctor to whom
the questionnaires were administered.
(56.7%)
Majority of them
are in favour of the application of C.P.A.
the medical profession.
There is still a rather big
opposition to it by the doctors as 43.3% of
the application of C.P.A.
6 a.
to
them are against
to the medical profession.
Professional indemnity insurance individually
Hospital A
Sample
Hospital B
Hospital C
fo
Zo
size
T ot al
Re sponse s
Ye s
9
30%
4
20%
3
30%
16
26.7%
No
21
70%
16
80%
7
70%
44
73.3%
On the whole,
there is a very small percent of the
totic
doctors^are insured individually and have the professional
indemnity insurance against medical negligence.
26.7% of
them have professional indemnity insurance while 73.3% are
without it.
b.
Professional indemnity insurance through the
Sample
institution
Hospital A
Hospital B
Hospital C
Total
Resoonses
30
20
10
60
size
Yes
30
No
0
100%
0
20
0
100%
10
100%
211
30
50%
30
5 0%
: 211
The
comparative
only hospital 'a'
study of
the
responses revealed that
has provided its doctors with professional
indemnity insurance while hospitals
and 'c'
' B'
have not
covered their doctors with professional indemnity insurance.
c.
Feel the need to be
insured
Hospital A
Sample size
Hospital B
30
Hospital 0
Total
responses
10
60
20
Yes
12
40%
18
90%
5
50%
35
58.3%
No
1
3. 3%
2
10%
1
10%
/
6,7%
Only sixty five percent of the doctors responded;
majority of them feel the need to have the professional indem
nity insurance.
Only 6.7% have expressed that they do not
feel the need for it.
d.
Insurance premium against medical negligence
Hospital A
Sample
Hospital B
30
size
;
Hospital C
20
Total
Responses
10
60
Very high
6
20%
2
10%
2
20%
10
16.7%
Re asonable
18
60%
11
55%
5
50%
34
56.7%
212
-
: 212
Almost 27% of the? doctors have not
how they feel about
negligence.
the insurance premium against medical
16.7% of doctors feel it is very highj
of the doctors feel it
7.
C.P.A.
responded as to
56.7%
is reasonable.
affects the professional freedom
Hospital A
Hospital 8
Hospital C
Total
response
30
20
10
60
Sample size
Yes
18
60%
19
95%
5
50%
42
No
12
40%
1
5%
5
50%
18
Every doctor has responded to this question.
whole,
grand majority of them (seventy percent)
that C.P.A.
professional freedom,
|
On the
the
remaining
does not come on their
Since such a big majority of them
30%
of them think
affects their professional freedom;
thirty percent feel that C.P.A.
70%
way.
feel that it affects their
it seems to be something that they are
sensitive.
8.
a.
C.P.A.
needs modification
Hospital A
Hospital B
Hospital C
Total
responses
30
20
1°
60
Sample size
Yes
24
80%
19
No
1
3. 3%
0
95%
7
70%
50
83. 3%
2
20%
3
5%
213
! 213
The doctors of theso three hospitals feel that
C.P.A.
needs modification.
On the whole,
doctors feel that modification of C.P.A.
83.3% of
the
is a must while only
five percentage of them do not feel the need for it.
of the doc ors have not
such a big majority of
for modification of
responded to the
question.
11.7%
Since
them are so convinced of the need
the C.P.A,,
it will be good to look into
the matter and thus ensure the co-operation of
the medical
p rofessionals.
There were many suggestions with regard to the modifi
b.
cation of C.P.A.
.
To include the medical professionals in the panel.
.
To include the Government hospitals and its doctors
also within the boundaries of the C.P.A.
reputation of the doctor concerned.
.
To protect the
.
To make provisions for the compensation of doctors by
the patient if the doctor is not proved to be negligent.
9.
a.
I.Fl.C.
can handle the problem of medical negligence
_________ efficiently_____________________________________________________
Total
Responses
Hospital A
Hospital B
Hospital C
30
Sample size
60
10
20
Ye s
13
43.3%
8
40*
5
50%
26
43, 3%
No
16
5 3. 3%
12
60%
5
50%
33
55%
214
•
When looked at
that majority
to handle
ciently.
43.3%
the
I.M.C.
the
it is evident
responses together,
of the doctors feel that the
(55%)
not able
214
I.M.C.
is
the problems of medical negligence effi
of
the doctors in
total are convinced that
A small percent of 1.7^
can handle them well.
remains silent on the subject.
b.
I
Modification will make the
I.M.C.
Act adequate
...
Hospital A
Hospital B
Hospital C
Total
responses
30
20
10
60
Sample size
Ye s
8
26.7%
11
55%
5
50%
24
40%
No
8
26.7%
3
15%
1
10%
12
20%
Forty percent of the doctors feel that modification will
make the
I.M.C.
Act adequate.
to contradict this statement.
There are only twenty percent
Forty percent of the doctors
abstained.
c.
Those
who felt that the modification of
the
I.M.C.
Act
will make it efficient to handle the problem of medical negli
gence adequately have made
a few suggestions.
IMC must have
power to ;
and also award damages;
.
Fine
.
Monitor the professional competence of
the doctors;
.215
•
.
.
: 215
monitor and maintain the standard and quality especially
in the private clinics and nursing homes;
control and provide admissions only on merit and never
on capitation fee which is the
in the medical profession;
control and handle
root cause of the tragedy
and
the quacks who spoil the medical pro
fession.
10.
Have faced problems in managing patients
Hospital A
Hospital B
30
Sample size
Hospital C
1
3.3%
0
No
29
96.7%
19
Total
responses
10
20
Ye s
because of C.P.B.
60
0
95%
10
100%
1
1.7%
58
96.7%
A very small percentage of the doctors seem to have faced
problem in managing patients because of C.P.A.
96^7% of the
doctors never seem to have faced any problem in managing patient
because of C.P.A.
against just 1.7% of doctors who have faced
the problem.
11.
The doctors
responded that the measures that they have
taken to protect themselves from facing problem in managing
patients because of
.
C.P.A.
are :
Explaining everything required and providing the patients
with all the necessary information regarding the disease,
the treatment
required and also about the expected prognosis.
.216
s
216
:
By communicating to the patient in writing.
By raising the professional fee
to meet the insurance
cost.
12.
In view of
the Consumer Protection Act,
some of
the
steps
that can help in avoiding litigations and its effects in the
order of preference by the doctors
as follows
three hospitals are
of the
:
Hospital
A
Sample size
Hospital
B
Hospital
C
Total
responses
20
10
60
30
1)
Provide proper
explanation to the
patient before and
after each treatmer t/
28
p rocedu re.
9 3. 3%
17
85%
10
100%
55
91.7%
2)
Make the patier t
consent before any
treatment/p rocedure 26
86.7%
16
80%
9
90%
45
75%
3) Regular visits
to the patient to
make sure that he
is comfortable and
gets all the care
20
66.7%
14
70%
6
60%
40
66.7%
4) Avoid taking
any risk.................
consult others
and refer to the
specialists
19
6 3. 3%
13
65%
4
40%
36
6 0%
5) Provide the
emergency treat
ment and then refe:
the patient to
other specialists
10
5 3. 3%
9
45%
I 6
60%
25
41.7%
217
:
b)
Suggestions added
.
21?
:
by the doctors are
maintain oroper medical records,
:
audit
and self assess
ment;
.
provide good
.
maintain good
treatment;
rapport with the patients
and their
relatives; and
.
"13.
a.
bp sincere
C.P.A,
and
and honest with the patients always.
will improve the
standard of medical profession
quality of services
Hospital A
Hospital B
Hospital C
Total
Responses
30
20
10
60
Sample size
Ye s
6
20%
3
15%
3
30%
12
20%
No
5
16.7%
3
15%
5
50%
13
21.7%
To an extent,
ye s
17
56.7%
13
65%
2
20%
32
5 3. 3%
The comparative study of the
C.P.A.
responses indicates that
will improve the standard of medical profession and the
quality of services to some extent.
doctors (53.3%)
say that C.P.A.
quality to an extent only,
positive that C.P.A.
care.
21.7% of
statement.
will improve the standard and
20^> of them are convinced and are
will help
in the improvement of medical
the doctors do not
There
while the majority of
are also another
seem to agree with the
5% of the doctors who
,218
:
218
»
maintained their silence on the matter.
majority of
C.P.A.
these doctors
as a means to
raise
On
the
seem to be positive
whole,
a good
about the
standard of the medical nro-
the
fession and improve the quality.
b.
Those
uho said that it will improve the
medical profession and the
standard o£
quality of service strengthen their
opinion by the following suggestions.
.
C.P.A.
will make
responsible,
tho doctors more
careful,
vigilent,
accountable and prompt them to exercise
better judgement and use
reasonable
care
in their
decisions as well as treatment of the patients.
.
It will raise the standard by checking the
.
It will put a halt to the malpractices going on in
quacks.
the medical field today.
Above all,
.
c.
it will ensure the safety of the patients.
Those who were not convinced that C.P.A.
the
standard of medical profession and
will improve
service
quality of
give their reasons;
.
C.P.A.
is one siJed.
It leaves the Government sector
out of its purview and is hard on the private
sector
providing licence to the Government sector and its
doctors to do what they want.
.
it encourages the use of defensive medicine
indirectly.
....219
*• 219
It is a source of
big money for lawyers.
It makes the doctors to live in fear.
14.
C.P.A.
will make doctors resort to defensive medicines
Hospital A
Hospital 8
Hospital C
Ye s
24
80ft
20
7
70%
51
85%
No
5
16.7%
0
3
30%
8
13.3%
Total
responses
Sample size
100^
In total eighty five percentage of the doctors are very
strong on the point that C.P.A.
sive medicine.
will make them resort to defen
It is only 13.3%
who think
the other way;
1.7% of the doctors do not say anything.
15.
C.P.A.
will increase
cost of medical care.
the
Hospital A
Hospital 8
30
20
Sample size
Total
Responses
Hospital C
10
60
Ve rymuch
14
46.7%
15
75%
6
60%
35
58.3%
To some extent
15
50%
5
25%
2
20%
32
36.7%
1
10%
1
1.7%
Not at all
The
0
0
responses of the doctors show that a majority of
them are of the opinion that C.P.A.
medical care.
While
will increase the
cost of
58.3% of them feel that it will be
increased very much,
a smaller percentage of them feel that
it will increase the
cost of medical care to some extent,
making a total of 95%.
There is only
1.7% to oppose the
...220
220
and 3.3% of the doctors have not responded.
two groups above
When the doctors were
16.
sincere
the
.
asked as to what would be
reaction to those patients who may sue
responses obtained from most of
If
I
am not wrong,
the doctor,
them are;
I will accept the punishment.
am wrong,
then
their
But
if
I
I will counter sue the patient in the
civil court.
.
I will first examine myself and see as to where
I had gone
wrong.
.
I will be polite but will defend myself.
.
I will have nothing more to do with the patient.
.
(*ly reaction will be legal.
.
The
made
law of the land is good enough unless I have
really
a blunder.
.
My reaction will be one of anger and disappointment.
.
I will use defensive medicine.
17.
Other comments and suggestions ;
tative ones
.
Formation of
the
,
The most
represen
are ;
a legal cell of medical professionals to fight
lawyers who make money out of C.P.A.
Include doctors in the panel.
221
221
Increase
the awareness among doctors.
Out of court settlement without involving the
lawyers.
Nore discussion before legislation.
C.P.A.
as it
in itself is good,
is at present.
and doctors out of it,
and hospitals
C.P.A.
provided it is not one
sided
Keeping the Government hospitals
while
including private doctors
is not correct.
encourages defensive medicine.
222
222
RESPONSES OBTAINED FROM VARIOUS CATEGORIES OF DOCTORS
a)
l.
Medical negligence is a major problem in the country.
General
Surgery
General
Medicine
Specia
lities
Anaesthe
siology
O.B.Gyn.
(1)
(2)
(3)
(4)
(5)
20
10
10
10
10
Yes
12(60%)
8(80%)
5(50%)
10(100%)
6(60%)
NO
8(40%)
2(20%)
5(50%)
0
4(40%)
No response
0
Sample size
b)Aware of the legal provisions in case of medical negligence.
To great extent 6(30%)
5(50%)
2(20%)
1(10%)
3(30%)
Somewhat
13(65%)
5(50%)
6(60%)
8(80%)
4(40%)
Not much
1(5%)
0
2(20%)
1(10%)
2(20%)
No response
0
0
0
0
1(10%)
1
i________
2.
Aware of the provisions of C.P.A as it affects the medical profession
To great extent 12(60%)
6(60%)
3(30%)
6(60%)
3(30%)
Some what
7(35%)
4(40%)
6(60%)
4(40%)
5(50%)
Not much
1(5%)
0
1(10%)
0
2(20%)
No response
0
0
0
0
0
223
• 22?
3.
The impact of C.P.A on medical profession
(1)
(2)
(3)
(4)
(5)
Sample size
20
10
10
10
10
Good
5(25%)
2(20%)
4(40%)
2(20%)
0
Fair
8(40%)
6(60%)
2(20%)
5(50%)
8(80%)
Bad
7(35%)
2(20%)
4(40%)
3(30%)
2(20%)
No response
0
0
0
0
0
f. -
----------------------------
4.a) The C.P.A will affect the doctor's relationship with his patients
Yes
15(75%)
6 (60%)
5(50%)
7(70%)
5(50%)
No
5(25%)
4(40%)
5(50%)
3(30%)
5(50%)
No response
0
0
0
0
0
b) If yes then how?
Resort to defensive medicine.
It makes the doctor
over conscious; Self protection; the doctor may lose his
human touch for the patient; Suspicion of every patient;
will be relectant to take risk; Result in unnatural doctor
patient relationship; Doctor may use negative medicine;
Profession will be made into a trade and business; will
become more meticulous about the details.
.224
S 224
5. a)/\ member of Indian Medical Association
(1)
(2)
(3)
(4)
(5)
20
10
10
10
10
Yes
14(70%)
8(80%)
5(50%)
5(50%)
3(30%)
No
6(30%)
2(20%)
5(50%)
5(50%)
6(60%)
No response
0
0
0
0
0
Sample siae
b) In favour of the application of C.P.A to the service pendered
by the medical profession
Yes
10(50%)
6(60%)
2(20%).
7(70%)
6(60%)
No
10(50%)
4(40%)
8(80%)
3(30%)
2(20%)
No response
0
0
0
0
0
6. a) Have professional indemnity insurance individually
Yes
5(25%)
3(30%)
5(50%)
1.(10%)
3(30%)
No
15(75%)
7(70%)
5(50%)
9(90%)
7(70%)
No response
0
0
0
0
0
225
225
b) Have professional indemnity insurance through the Institution
—h
(1)
(2)
(3)
(4)
(5)
20
10
10
10
10
Yes
12(60%)
6(60%)
10(100%)
7(70%)
6(60%)
No
6(30%)
4(40%)
0
3(30%)
3(30%)
No response
2(10%)
0
0
0
1(10%)
Sample size
i
c) Feel the need to be insured
Yes
11(55%)
7(70%)
4(40%)
3(30%)
3(30%)
No
9(45%)
0
0
0
1(10%)
No response
0
3(30%)
6(60%)
7(70%)
6(60%)
d) Insurance premium against medical negligence is
Very high
5(25%)
3(30%)
2(20%)
1 (10%)
1 (10%)
Reasonable
15(75%)
7 (70%)
8(80%)
4(40%)
6(60%)
No response
0
0
5(50%)
3(30%)
0
—
226
: 226
7.
C.P.A affect the professional freedom
1 ■
■ ■■
"
*
(1)
(2)
(3)
(4)
(5)
Sample size
20
10
10
10
10
Yes
16(80%)
7 (70%)
5(50%)
9(90%)
6(60%)
NO
4(20%)
3(30%)
5(50%)
1 (10%)
4 (40%)
No response
0
0
0
0
0
v
8.a) C.P.A needs modification (if appliable to medical profession)
■ ■■ — -■ ■ .
V
Yes
19(95%)
10(100%)
8(80%)
3(30%)
10(100%)
No
1(5%)
0
2
0
0
No response
0
0
0
7(70%)
0
b)
Modifications to the C.P.A suggested by the doctors for C.P.A
- Include doctors in the panel - Maintain anonymity till the
judgement to protect the reputation of the concerned doctor.
Include the Government hospitals and doctors also under the
purview of C.P.A.
If patient loses the case, then doctor
must be paid the compensation.
frivolous complaints.
Penalty must be imposed on
Final verdict for the midical
negligence must be by the medio-legal experts.
227
• 227
9. a) I.M.C. has the ability and authority to handle the problems
of medical negligence upto the expectations of the patients
and doctors (adequately)
—
1--------------------------------
(1)
(2)
(3)
(4)
(5)
20
10
10
10
10
Yes
9(45%)
4(40%)
4(40%)
6(60%)
5(50%)
No
11(55%)
6(60%)
6(60%)
4(40%)
4(40%)
No response
0
0
0
0
1 (10%)
Sample size
b) Modification to the Act will make it adequate (the Medical
Council Act)
Yes
9(45%)
6(60%)
5(50%)
3(30%)
3(30%)
No
4(20%)
2(20%)
4(40%)
1(10%)
2(20%)
No response
7(35%)
2(20%)
1(10%)
6(60%)
5(50%)
c)
The modification suggested by the doctors to the Medical
Council Act.
- Power to fine and award the damages - C.P.A should be
monitored by the I.M.C.
Medical Council should
monitor
228
: 228
the professional competency of the doctors.
Should ensure
quality doctors by abolishing capitation fee and ensuring
admissions to M.B.B.S. purely on merit.
The present system
in the country guarantees rotten doctors.
More supervision to
ensure proper standard and quality in the private clinics and
nursing homes.
Check the quacks from time to time and punish
them properly.
10.
11.
Have faced problems in managing patients because of C.P.A.
(1)
i......
(2>
(3)
(4)
(5)
Sample size
20
10
10
10
10
Yes
1(5%)
0
1(10%)
0
0
No
19(95%)
9(90%)
10(100%)
9(90%)
No response
0
0
1 (10%)
10(100%)
0
0
Ip
The measures taken by the doctor to protect himself:
Lot of trouble is taken to explain everything to the
patient and relatives regarding the treatment, the future and
the prognosis.
To err on the side of conservatism.
to the patient in writing.
Communicate
Raising the professional fee to
meet the insurance cost.
...229
-
:
229
f
"
12. In view of C.P.A possible steps is avoid litigations and
its effects:
(1)
(2)
(3)
(4)
l<»
20
10
10
10
10
a. Provide proper
explanation to
the patient/
relatives
20(100%)
9(90%)
9(90%)
9(90%)
8(80%)
b. Make sure that
the patient is
comfortable
10(50%)
9(90%)
6(60%)
6(60%)
6(60%)
c. Consent of the
patient before
treatment
20(100%) ' 9(90%)
6(60%)
9(90%)
7(70%)
d. Avoid taking
any risk
14(70%)
5(50%)
5(50%)
7(70%)
5(50%)
e. Meet the emer
gency and then
refer to the
specialists
10(50%)
6(60%)
4(40%)
5(50%)
1(10%)
Sample size
f. Suggestions added:-
self assessment.
Maintain proper medical records and regular
Excellent patient rapport is the single most
important factor to prevent patient resorting to the C.P.A.
Be sincere and honest with the patients.
Provide proper treat
ment; everything else will be covered by it.
250
I
-
|
I
1
13. a)
: 230
J
-
C.P.A will improve the standard of medical profession and
quality of health care services.
i
(1)
(2)
(3)
(4)
(5)
20
10
10
10
10
Yes
5(25%)
0
4(40%)
2(20%)
1 (10%)
No
4(20%)
2(20%)
2(20%)
2(20%)
0
To,an extent
yes
11(55%)
8(80%)
4(40%)
6(60%)
7(70%)
No response
0
0
0
0
2(20%)
Sample size
b) If yes how?
Doctors will be more careful, vigilant, responsible
and accountable and exercise better judgement in their
decisions and treatments.
Fear of the 'rod’ will make the doctors more reasonable.
It will be a means to check the unethical and poor quality of
medical care/services provided in the private clinics and
nursing homes.
It is an ideal means to check the quacks.
It will help to improve the quality of care given to the
patients.
C.P.A will enable quality control in the field of
medical profession and in the lives of medical persons and
health care service as a whole.
*
231
c. If no. Why?
The medical persons will be ruled by fear.
It does
not have any control over the Government hospitals and
Government docotrs.
Most of the problems and malpractices
are at the primary health care system which mainly is
composed of quacks.
Check them first and malpractices
C.P.A does nothing to improve
will go down significantly.
the standard of medical profession.
It encourages
defensive medicine.
14.
C.P.A will make doctors resort to defensive madicine.
(1)
(2)
(3)
(4)
(5)
20
10
10
10
10
Yes
18(90%)
9(90%)
8(80%)
8(80%)
8(80%)
NO
2(10%)
1(10%)
2(20%)
2(20%)
1(10%)
No response
0
0
0
0
1(10%)
Sample size
232
~
: 2J2
’
"
15. C.P.A will increase the cost of medical care.
16.
(1)
(2)
(3)
(4)
(5)
Sample
20
10
10
10
10
Very much
12(60%)
6(60%)
6(60%)
7(70%)
4(40%)
To some extent
7(35%)
4(40%)
3(30%)
3(30%)
6(60%)
No at all
1(5%)
0
0
0
0
No response
0
0
1(10%)
0
0
Sincere reaction of doctor to a patient who may sue him for
professional negligence.
- If I am wrong I will accept the punishment,
If I am not at
fault I will counter sue the patient in the law court.
My
attitude will be "think before you sue; Is it really negligence?"
I have done my best and I will not bother myself furter; I
will defend myself and resort to defensive medicines.
The
law in the country is good enough to protect me unless I am
really at fault.
went woong.
I will examine myself and see where I really
I will be polite.
My reaction will be legal.
My reaction will be anger and disappointment.
17.
Other comments and suggestions on the topic:
Out of court settlement by the I.M.A without going
. 233
’
2JJ
!
to the court and involving a lawyer.
More discussions before legislation
C.P.A in itself is good, but it must be extended
to the Government hospitals and Government doctors also.
Awareness among the doctors should be increased.
Include doctors/medical experts in the panel.
C.P.A is good if properly used.
C.P.A encourages use of defensive medicine.
A "Legal Cell" of medical professionals must be
formed to fight the lawyers who support the C.P.A for whom
it is a good source of income.
234
CHAPTER VII
DISCUSSION.
! 234
CHAPTER VII
DISCUSSION
Man’s wants are unlimited, the means are very limited;If we analyse our every day life and the present situation,
it becomes evidence that there is a limit to man’s NEEDS but
not for his GREED.
This greed is the root cause of most of
the malpractices that are going on today.
A close observation
of the present time realities gives an impression that everyone
in every walk of life is competing with each other, aiming not
x/
A
necessarily at excellence, but often in some or the other kind
of malpractice;'
As a result people get cheated by somebody or
Malpractice affects both tjie good and the bad." It
the other.
looks as though malpractice has become part of life and routine
of the day with its roots reaching deep into almost all
professions;-
"The deterioration of standards in the medical profession
is but a reflection of the deterioration of standards in
other professions and in the all-pervading public life of our
country;
A
■
Excessive greed, and the pursuit of money rather than
the pursuit of excellence, alone appears to be operating as a
motivating force in all our walks of life;-
Independence,
achieved in 1947 as a result of sacrifices in the long-drawnout freedom struggle, is misconstrued to mean licence to pursue
utterly selfish ends in disregard of any limitations thereon5?
... 235
:
255
The sense of accountability is rapidly on the wane in the
performance not only of the medical and legal professions,
but judicial, engineering, architectural, constructional
and business fields also.-
The rempant un account ability
displayed by the politicians who are otherwise supposed to
be the leaders of society, appears to be maihly responsible
for this deterioration."
(1)
There is no profession under creation that is not
noble, although the degree of nobility varies from profession
to profession depending on the amount of dedication put into
it by the professionals1.-
Every profession is a calling or a
vocation and its upgradation/degradation depends on its
professionals; by the way they go about with and within the
professions
Where medical profession is concerned, it is not
only a calling, but it is also a real challange.
Certainly
it is a junction where opportunities, responsibilities,
obligations and devotions meet together.
In fact all these
are the necessary characteristics of a medical professional
who profess himself/herself bythe sacred Hippocratic oath
whereby he/she proclaims to the world that the object of his/
her calling is to make health and not merely money.!
"If Physician lives upto the professional ideals and
strictly observes the code of ethics embodied in the Hippo
cratic oath he may well conclude his days in poverty. If he
....236
• 236
acts like a businessman, he can acquire a big bank account
and a large estate within a few years but will furnish ample
ammunition for complaints about commercialization in the
medical practice.*1 (2)
Unlike any other profession, medical profession is a
demanding one.
One needs tremendous courage, determination
and also dedication to live upto its demands.
It is a unique
profession in which the professional gives himself/herself ,
his time, energy and entertainment.
It is a profession in
which the professional cannot own time as his own.>
Yet as
Dr. Lele says those who belong to this profession are doubly
blessed because, they earn good money as in any other
profession and even more-important they earn the everlasting
gratitude of those whom they are privileged to serve and care
for?
"Doctors have several ethical, moral and legal obligations
in the performance of their duties.
It is very important1?
therefore, that every doctor understands the nature of these
obligations and then fulfil these obligations to the best of
their ability; Further, all doctors should know about medico
legal cases and the procedures to be adopted in them?" (3)
1. Negligence
Apart from the malpractices/arising out of greed, there are
many problems due to negligence.
The doctor or the health care
' 237
: 2J7
institution fails in discharging the duty of care. They then
become liable to be sued for negligence and damages, if harm
has been caused by the negligence.
a) Awareness; The findings from the survey of the opinions of
doctors and administrators show that the majority of doctors
and all the hospital authorities are aware of it which is a
good sign because only where
there is awareness there is chance
to be more careful?.1';
b) It js 3 maior problem;
There is difference of opinion as to
whether medical negligence is a major problem in the country?
The number of cases in the courts show that it is a major
problem (all cases of negligence do not come to the court).
Yet only 50% of the specialists consider medical negligence as
a major problem?
c) beqal provisions: Awareness of the legal provisions varied
between the doctors of the three hospitals. Most of them (85%)
were either somewhat or well aware of the legal provisions. It
is necessary that all the doctors should be fully aware of the
legal implications.
Probably seminars/workshops on medical
negligence and legal provisions might help to create awareness
of tie legal provisions?
2.a) Consumer Protection Act
According to Consumer Protection Act, consumers are
persons who buy goods or hire services for a consideration'?
As far as medical profession and health care institutions are
238
! 258
concerned, consumers are the patients who avail the services
of the medical professionals and hospitals/clinics/nursing
homes, etc. Services of any description made available to the
user, except the exempted categories, come under the purview
of the Consumer Protection Act.
Thus the Act includes services
rendered by the medical professionals and the health care
institutions who make their services available to the public
and are taking a remuneration.
They are therefore liable to
pay condensation if there is deficiency in their services and
harm results^
"The Consumer Protection Act (1986) opened up more avenues
for ordinary citizens wishing to take legal action,
Tiis Act
gave the Consumers the sanction to d irectly take up issues in
order that their grievences might be redressed.
The Act
gurantees certain rights to the citizens such as right to seek
redressal or the right to be heard before a court of LaW*.1 This
Act covers goods as well as services and has even made govern
ment services answerable before law."(4)
The information gathered from tie questionnaires answered
by the doctors and hospital administrators gives a clear
indication that both these categories of people are very much
aware of the provisions of the Consumer Protection Act 4s it
affects the medical profession.
While 48% of the doctors are
only somewhat aware of it, 4o% of them are aware of it to a
great extent;’;
Both hospital wise as well as category wise the
239
: 239
doctors' response show that a great majority are aware of
the provisions of C.P.A. as it affects the medial profession
and health care institutions.
AH the administrators and 87%
of the doctors seem to be aware of it in varying extent which
is a sign that the medical profession is alert to the problem.-'
b) Impact qp the profession :
In general about 80% of the
doctors view the impact of C.P.A. on the medical profession
to be fairly good which indicates that there is certain amount
of appreciation of the C.P.A. by the doctors/medical profession.
The medical professionals and the health care institutions
who consider C.P.A. as an opportunity to maintain their values
and improve their standard, will be more careful and avoid
negligence to the extent they are avoidable’?
3. P£&yg.]-gnce Q.f-jneJical. pegliggjTfig.
Medical negligence is very much prevalent today. AH tie
administrators have faced cases of medical negligence in the
past.
Two of them had two cases each and the third one had
three cases within the past one year itself which is a proof
to this fact that the medical negligence is a major problem in
the country.
There is a contradiction on this aspect as the
doctors' responses show that only the smallest possible percent
of the doctors (1.7%) have faced problem in managing patients
because of C.P.A. This shows that the responders never had any
cases of medical negligence-.-
Though there is no separate data
240
240
available regarding the medical negligence
cases in the
State Commission, the available data of negligence in general
indicates that negligence is on the increase which certainly
gives reasons for great concern.
Information obtained at my visit to the Karnataka State
Consumer Disputed Redressal Commission, Basava Bhavan,Bangalore
and the discussion held with a reliable authority there was
very much enlightening regarding the present situation.
In
the State of Karnataka four district forums and the State
Commission started functioning in September 1989.
By 1991
every district in Karnataka has its own Consumer Forum.'
KAfUATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
BASAVA BHAVAN, BANGALORE
COMPLAINTS
YEAR
NO. OF COMPLAINTS
FILED
NO.OF COMPLAINTS
DISPOSED
NO.OF COMPLAINTS
PENDING
1990
133
123
10
1991
230
175
55
1992
340
63
177
1993
172
33
139
875
394
4 81
Totals
241
241 • •
APE ALS
YEAR
NO.OF APPEALS
FILED
NO. OF APPEALS
DISPOSED
NO. OF APPEALS
PENDING
1990
68
67
1
1991
165
139
26
1992
421
194
227
1993
322
45
277
TOTAL
976
445
531
As per the statistics available, it is clear that on an
average, about 218/75 complaints and 244 appeals are filed per
year with the State Commission, which shows that there were
comparatively less number of claims above Rs. One lakh in the
State.
The Commission was able to dispose of, on an average,
98.5 i.e. 45% of complaints and 111.25 i.e., 46% of appeals
every year.
now.
55% of complaints and 54% of appeals are pending
This does not give a good picture of the C.P.A. in its
implementation and functioning/
Statement showing the details of complaints filed in the
District Consumers Redressal Forums and disposed off by them
during the month of May 1993/
SL.
NO.
NAME OF THE
DCDRFs
01.
Bangalore (U)*
02.
Bangalore (R)
03.
Kolar
O.B.
RECEIPTS
----Not
TOTAL DISPOSAL PENDING
available -----
33
6
29
1
28
137
18
155
16
139
242
242
N0-
NAME OF THE
DLDRFs
04. Tumkur
O.B.
RECEIPTS
TOTAL
DE POSAL
PENDING
199
45
244
25
219
--
05. Chitradurga
. Not available
----
06. Shimoga
89
14
103
12
91
07. Mandya
72
11
83
25
58
08. D.Kannada
433
33
466
36
430
09. Kodagu
40
10
50
—
50
10. Hassan
333
6
339
5
334
11. Chickmagalur
144
7
151
9
142
12. Dharwad
146
39
185
23
162
13. U.Kannada
95
7
102
23
79
14. Raichur
98
7
105
4
101
15. Be 11ary
61
7
68
5
63
16. Bidar
— --
17. Mysore
677
24
701
11
690
18. Gulbarga
69
9
78
17
61
19. Belgaum
Not available
- -- Not
—— !«■ — —
available —————
20. Bijapur
113
15
128
5
123
TOTAL
2729
258
2987
217
2770
* The number of pending and new cases are so many in the
Bangalore Urban Forum that it has been decided to have one
more district forum (Deccan Herald, August 1, 199 3 )v
245
:
243
The statistics of May 1993 shows that in the beginning
of the month, there were already 2729 complaints in total that
were pending from the previous time and 258 new complaints,
totalling 2987 complaints to be attended to.
Out of these,
only 217, i.e., 7.3% complaints were disposed of in total,'
during the month; and 2770, i.e. ,92.7% were pending for the
next month.
C.P.A. was passed by the Parliament to provide easy, speedy
and cheap redressal to the Consumer.
But the study on the
findings (the statistics) and the information regarding the
implentation of C.P.A. (District forums and State Commissions)
in Karnataka at least^seem to belie the purpose.
this deficiency is due to lack of personnel.
It seems that
During the course
of discussion, one could learn that there are vacancies, but
the posts are not filled in; as a result, the work suffers, the
outcome of which is evident in the statistics.
According to the information received from a reliable
authority in the State Commission, at present there are 6-7
thousand cases pending in the district forum (Kaveri Bhavan),
but not enough personnel to attend to all of them in time;’
This again proves that the purpose of the Consumer Courts
are being defeated.
If it moves with this speed, then it will
not be able to prove to be any better or different form the
Civil Courts and Criminal Courts^
244
:
-
244
s
-
After the amendment of the Consumer Protection Act was
passed on the 18th June 1993, the State Commissions are given
the power of administrative control of the district forums,
which should improve the efficiency of district forums.
If not,
C.P.A. will be just another piece or ineffective laws in our
Country;
Under the amended rule, now the Consumers have to file the
complaints within one year from the date on which the cause of
Action has arisen (given in the Consumer Protection (amendment)
Ordinance 1993. pg;lo).
to a certain extent.
This may reduce the number of complaints
The same
amendment ordinance 1993 says
that the amount of compensation upto Rs.Five lakhs is to be
handled by the district forum and Rs.5o ,0001 to 2}00,000 is to
be handled by the State Commission and above Rs. 20,00000/-
by the National Commission.
This is going to increase
work
load of the district forum as well as the State Commission. Yet
another amended rule on page n of the same ordinance says that
the complaints that are frivolous or vexations will be dismissed
and the complainant will be penalised by paying to the opposite party
the cost incurred but not more than Rs. 10,000/-.
It was not possible to get specific information regarding
cases of medical negligence that were filed in the Consumer
courts as they are n<±
maintained separately.
A sizeable number
may be on medical negligence.
245
:
: 245
-
The survey conducted also gives the impression that although
there are some among the medical professionals who consider the
Consumer Protection Act as a threat to them and so certain amount
of resistance can be expected from t hem.:
But a good majority of
them consider C.P.A. as an opportunity.
Some of them, who seem
to be open minded, upright and patient oriented, welcome C.P.A.
as a blessing to the medical profession to retrieve and retain
their original values and standard.
Most of the doctors and
hospital authorities seem to belong here which is a good sigi;
4. Doctor Pat jept relationship.
In the past doctor-patient relationship was characterised
by the ethics pf trust.
But it seems to have been lost on the
wayside with passing of time.-
The survey indicates that over
60% of the doctors are positive that C.P.A. will affect their
relationship;
Among the doctors 75% of the General Surgeons
and 70% of the Anaesthetists^are whojf eel this way.
Anyway, it
is not a good attitude from the part of the doctors to consider
Consumer Protection Act in this manner.
Yet when such a big
majority of them feel thus, there is need to take this into
earnest consideration.
There are four ways of maintaining this doctor-patient
relationship.
1) Where the doctor provides the patients the necessary
information which will encourage the patient to give his consent
....246
: 246
so that the doctor can do for him whatever he thinks best. It
is known as the paternalistic TOdej.
2) Interpretative model is where the doctor is like a counsellor.
The doctor assists the patient to select the kind of treatment
he wants and it is the patient who really determines or decides
as to which treatment is to be given;1
3) Informative mpdej, wherein
doctor provides the patient all
the relevant information and available facts and the patient then
decides as to what treatment is to be given.
4) Deljberatjve mode?-'**
where the doctor is like a teacher/guide,
who indicates w.hat the patient should do, but the patient has
their right to Consider the type of treatment he/she wants after
weighing the pros and cons'-;
In the study conducted, a majority of doctors i.e. 62%
of them think t hat C.P.A. will affect their relationship with
their patients and will curtail their professional freedom and
so on. Certainly there is no peace for the wicked.
It is
smoothing rather difficult to understand. These very same doctors
who had expressed that they have not faced any problem in managing
patients because of C.P.A. and that C.P.A. will improve the
standard of medical profession and the quality of services, etc.,
now say that C.P.A. will affect their relationship with their
patients.
There is a certain amount of contradiction here.
Perhaps those doctors who think it is going to affect their
.247
: 247
relationship fail to realise that this loss of trust is because
the ethics pf trust is
being replaced by the ethics pf right.
5. Defensive Medicine
Self defence is the very nature and characteristic of life.
Whether it is human/animal/plants, whenever there is a threat to
safety, one always tend to use defensive mechanism/measures. The
study conducted reveals that as far as the opinions of the medical
professionals are concerned, 85% of the doctors are very positive
that C.P.A. is going to make them (the doctors) resort to defensive
medicine.
90% of the General Surgeons and Physicians and 80% of
the other three categories of doctors are of this opinion.
If
the doctors are certain to have recourse to defensive medicine,
then certainly it is going to increase the cost of medical care?
There may be unnecessary, costly investigations.
The
doctors
may be reluctant to take up complicated cases. This means the very
purpose of the Consumer Protection Act is going to be defeated?
Indian Medical Association
M.A.
I.
is an association of the doctors, for the doctors
and is also by the doctors.
From the survey conducted one cannot
help but come to the understanding that though majority of them
have the membership in I.M.A., it is only a small majority of
58%.
Nearly an equal strength of them (56.7%), unlike the I.M.A.,
are in favour of the application of C.P.A. to t he medical
profession.
This indicates that allthe members of I.M.A.
themselves are not of the same mind?
248
!
248
6. An£PAne,Ets~fc?.
The means to increase or to improve the quality of the
consumer Protection Act will be by making changes to the
existing Act.
Actually 8 3.-3% of the doctors from the three
different hospitals are of the opinion that the C.P.A. needs
modification, as one is made to understand from the survey
carried out in these three hospitals.
They are of the □ pinion
that modification of the C.P.A. will make it more acceptable
to medical professionals and this in turn is likely to be
beneficial to the patients-^
suggestions.
a) Include the representatives of the medical professionals in
the panel who will be able to judge the negligence of the doctors
in a better way.
This seems to be a just suggestion that needs
consideration.
b) They (the medical professionals) also request that the Consumer
Protection Act should not make any discrimination, by holding
private doctors and the health care institutions liable for
negligence on one side, and leaving the government hospitals
and its doctors free from this liability on the other side. As
far as I understand, what the doctors resist is not the Consumer
Protection Act, but the discrimination that it makes,''
The sun
shines on the rich and the poor, on the good and the bad, on th e
big and the small'?
plants.
The wind blows against the trees and the
The rain falls over the rocks and the plains1?
... 249
why
249
should the same law be different in its application on the
private and public sector ?
Why should the Consumer Protection
Act leave the Government hospitals and its doctors out of its
purview ?
Services remain services always and everywhere and
for everyone; and there can be no difference in its value no
matter who provides it or who benefits from it. Whether one
pays for the services or not, the Consumer is a Consumer.*
The explanation given for this discrimination is that the
patient does not pay for the services he receives in the
Can this explanation and excuse be
Government hospitals.
justified ? Do the doctors in the Government Sector really
provide free services ?
Are they not being paid from the tax
collected from the public ?
In f act they (the cb ctors who are
in the Government Service) receive a much bigger salary and
render much less service compared to those doctors working in
the private sector.
Therefore, inclusion of the Goverment
health care services, provided by the Government sector, also
under the purview of consumer Protection Act will release much
of the tension that is prevailing among the medical professionals
in the private sector, and make it more acceptable to them which
will automatically turn out to be beneficial to the patients?
In fact, the inclusion of the Government hospitals and its
doctors also under the purview of C.P.A. will help to taise the
the standard and improve the quality of services in the Government
sector as the public involvement will help to deter the corruption
... 250
! 250
The public whose eyes and ears are
that is going on there.
wide open (now) will have a strong voice too with which they
will be able to check the corruption and those involved in
this corruption.
Actually the Consumer Protection Act was enacted to make
justice available to the poor who suffered loss and injuries in
the hands of the negligent doctors and institutions but could; rot
afford the expensive, complicated and time consuming justice
through the courts of law.
But by keeping the Government doctors
and hospitals out of the purview of C.P.A., these poor are denied
justice.
It is the poor who cannot afford the cost of private
medical care who go to the Government hospitals and avail the
services there.
Those who can afford go to the private hospitals,
clinics or nursing homes.
the benefit of C.P.A.
And the rich who can afford is availing
In reality the justice is snatched away
from the poor and is offered to the rich.
That is exactly what
is happening by bringing the private sector under the purview
of C.P.A. and keeping the Government sector out of it;
This is
like giving with one hand and taking away with the other.
a paradox ’.
What
C.P.A. is actually giving more to the ones who already
have plenty; and those who haven’t any are denied?
c) Another modification suggested by the doctors who answered
the questionnaire is to make some provision for the compensation
of those doctors who are falsely accused.
It is a
good suggestion
and it will have a check on those consumers who take advantage of
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the situation and run with any and every reasonable as well as
baseless complaints against the doctors and hospitals trying
to make money out of it.
What is it to them ?
the case they lose nothing.
they ask for.
If they lose
But if they gain, they gain what
This is not fair.
Anyway the doctors who suggested
this modification will be happy to know that the amendment of
C.P.A. (dated 18th June 1993), has already considered this and
has made some provision for it.
If the case is found to be
frivolous or vexatious, the complaint will be dismissed and the
conplainant will be made to pay to the opposite party the cost
but not exceeding Rs. 10,000/-.
7. a) Indemnity
Another fact that this study has revealed is the insecurity
that the medical professionals are feeling in the face of the
Consumer Protection Act.
Actually, the Act was passed to safe
guard the rights of the Consumers and to make sure that they are
safe and secure.
In the medical field, it has hit the providers
of health services.
They are not very sure when they will be
dragged into the court, and which patient is going to charge
against them and which of their action is going to be weighed
in the court'.'
So to be on the safe side, they feel the need to
maintain their own security through the professional indemnity
insurance coverage.
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7• b) Is the insurance premium reasonable ?
The study conducted indicates that majority of the doctors
(56.7%) and hospitals authorities feel that the insurance premium
is reasonable.
Yet, very few of them have the professional
indemnity insurance coverage individually.
Is it because they
are not able to afford this reasonable insurance premium or is
it because they are so sure that they will never be negligent
and their patients will never sue them ? Dr. R.D. Lele says that
the best insurance against litigation is to maintain a good doctor
patient relationship.
If these doctors who have not had the
insurance coverage yet, if they have maintained such an excellent
relationship with their patients, then certainly it is a very
good sign and is the ideal way to be insured.
If not, then they
are.inviting trouble for themselves1?
Some of the doctors seem to provide for payment of insurance
premiums by increasing the professional fees.
On the other hand
some (very few) hospitals haveprovided the professional indemnity;’
In the survey, one out of three has insurance coverage for their
doctors, which is a good thing.
institutions are safe.
Atleast the doctors in those
But is it because of the generosity of
the hospital that they have made this provision for their doctors ?
Or is it because they want to retain their doctors for whom this
insurance coverage will be an incentive to stay back and work for
the institution ?
Those two out of three institutions that have
not provided this professional indemnity insurance coverage for
their
employees and thier institution itself, may not be very
safe especially under the present situation.
The hospitals cannot
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beso sure that their doctors and other employees are so good that
they will never be negligent, and the patients will never sue
their employees or the hospital for negligence of any sort.
have already been taken to the Consumer Courts.
They
They should try
to protect themselves and their employees as soon as possible by
insurance against claims of damages.
8. Medical Goppcil Qf India
During the course of the study, one is made to understand
the doctors’ inpression about the I.M.C.
Less than half of the
doctors (43.3%) believe in the efficiency of the I.M.C. which is
the statutory body for regulating doctors."
Even with regard to
the modification required by the I.M.C. Act, less than half i.e.,
only 4o% of them feel that modifiLcation will make the I.M.C. Act
efficient and adequate while 4o% of them abstained from making
their comments.
Are these 4o% of the doctors indifferent to the
M.C.
I.
That will be a sad thing.
itself.
Those suggestions made by the doctors regarding the
modification of the I.M.C.Act and the consumer protection act,
seem to be rather genuine and practical and so it will be worth
considering them?
Modifications suggested:
- Power to fine and award damages
- Power to monitor the C.P.A. instead of C.P.A. monitoring the
M.C.
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- Power to ensure "quality doctors" and not "quantity doctors*
by providing admission on merit alone and abolishing capitation
related admissions.
They feel this alone will ensure standard
of the medical profession and quality of their service^'
- Power to check the quacks and malpractices^
- Power to monitor the competence of the doctors.^
9. Steps to avoid litigation
It is rather interesting to learn the preferences of the
doctors in the steps that would help them avoid litigations and
its effects.
Maximum number °f them (91.7%) preferred to provide
proper explanation to the patient before and after each procedure
and treatment so that the patient will be aware of what is wrong
with him, what is going to be done and what is the expected outcome
etc., and then obtain afully informed consent.
The least preferred
step was to provide emergency treatment, and then wash the hands
off by referring the patient to other specialists or more competent
persons, where-by risk can be avoided.
Many of the doctors reacted
to it and responded that, medicine is one that involves risk; by
avoiding risk one cannot practise medicine^
This way of treatnent
is possible only if the patient happens to be an enemy of the
doctor.
All these are
indications
that although the doctors
are "afraid" of C.P.A., they are not in favour of using defensive
medicine.
They are still patient-oriented and patlent-centered
which is encouraging.
On the whole the medical professionals are
committed to their cause except for the black sheep of the
profession.'
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Some of the doctors seem to take the steps to protect
themselves by providing proper information to "the patients. Some
of them go to the extent of communicating to them even in writing
which is a safe practise.
Dr. R.D. Lele
says that lack of
adequate communication is the single most important cause of
litigation.
Other causes are rudeness and callousness.1
1O;! Areas of, service more prone to medical negligence
There is certain amount of difference in the opinion of the
three administrators regarding areas of services that are more
prone to medical negligence.
Two out of the three feel that the
surgical department/sector is the one that is most prone to
medical negligence whereas the third one feels it is the medical
department that is most vulnerable one (perhaps this may be the
fact
in their respective hospitals).
All three of them seem
to differ in their second and third opinions.
While they are
’medical’ second and ’anaesthesia’ third for hospital ’A’; for
hospital ’ B’ it is ’medical’ in second place and ’anaesthesia’
comes on No.l along with surgery.
In hospital ’C’ the second
most vulnerable area seems to be the nursing department/area and
has not mentioned a third area in their response. From this study,
what I gather is, despite the order of preference/vulnerability,
two out of three mentions the surgical, anaesthesia and medical
areas and the third one mentions only the medical and nursing
areas-.1
When we relate to the reality, I feel that the administrator
of hospital ’B’ seems to be more close to the real.
But for the
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other two of them their reality may be what they have mentioned,
although it indicates that the surgeons and the anaesthetists
need special protection than the other categories of doctors^'
11. Categories gf employees more lively tp be involved ip
negligent Acts.
The study conducted on this aspect reveals that the doctors
are the most vulnerable groups of employees in the hospital that
are likely to be involved in the negligent acts as all three
hospital authorities are of the same mind.
Two out of three feel
that the administrators are the next group to be attacked by the
patients on negligence (I suppose on behalf of the hospital)
whereas according to the administration of hospital * B* he seems
to be very safe and not likely to be involved in the negligent
act, I to
feel he is rather right as he may be held responsible
on behalf of the hospital and not for his action.
Both
administrators of ’A’ and *C* feel that their nurses come in the
next category of vulnerable employees?
The three seem to agree
at the first time and differ intieir next opinions.
But that may
be the reality/experience/situation in their hospitals^’
But one
thing is clear that the doctors are the most vulnerable group and
they need more protection by the hospital than the others.
12. System for patjagts1 cpmments/cQmplaints/suggestions
Actually the pulse of the public can be measured/assessed
through the patients and their relatives.
They will be the ideal
groups to say how exactly the hospital is fairing in the conrnunity/
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society/ the locality.
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They will be the ones who will be able
to tell the strengths and weaknesses of the hospital through a
system for patients’ comments/complaints/suggestions*?
From the survey carried out, it is very clear that none of
the three hospitals have got a particular system to measure the
patients satisfaction level.
Cut of the three hospitals only
one is giving a thought to consider the possibility of such a
system while the other two donot seem to feel the need for it or
io realise the importance of it.
The hospitals should take action
to put into effect a system to deal with complaintsand comments
on a regular basis.1
13. The effect Pf c,ptA, pp closure of hospitals and opening of
new hospitals.
The study conducted makes it very clear that all three
administrators are very sure that C.P.A. will niether result in
closure of the existing voluntary hospitals, nor it will be a
hindrance to the opening of new ones in the future^
This shows
that the C.P.A. does not come on the way of the medical/health
care services; something very consoling and a reason to rejoice.
Study of medicolegal.. c_a_$^_ ^hat ?re,. qigsrooega
I went through two of the cases that are on process wherein
the hospital and doctors were accused of gross negligences
In the first case a 56 year old lady died after the operation
of "multiple organ failure."
A case was filed in the High Court-
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by the patient's daughter against the doctors and the hospital,
one month after the death of the patient*?
In the second case, a 13 year old girl was having a solid
retroperitoneal mass.
After various investigations the patient
was taken for operation.
Patient developed bradycardia and
cardiac arrest soon after the induction of anaesthesia.
The
patient was immediately resuscitated and surgery cancelled. Even
though the vital parameters improved, the girl manifested features
of cerebral anoxia?
With nursing care and nedication she
inproved from a state of opisthotonus and total unresponsiveness ,
to a remarkable extent.
discharge.
She was able to walk at the time of her
The hospital and the doctors were accused of gross
negligence?
In the first case, the hospital was called by the court
just once and after that there has been complete silence.
In
the second case, the hospital was called to the court a few times
but after three iears too, the case is not completed and no
judgement is passed?
If cases take so long to be settled by the court, what is
the
use of filing a case in the Law courts ?
Are the
Courts over-burdened with too many cases and few judges ? Whether
positive or negative, everybody would appreciate having quick
decision - lest the plaintiff and defendent may reach their
eternal reward leaving their cases behind in the courts of law?
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A final word
Medical negligence is with us and it has to be dealt with.
The patient (and close relatives) must get redressal of their
grievances.
For medical negligence to be proved, there is need
to prove that there has been deficiency in the duty of care.
Mishap or misadventure may happen in any medical intervention;
there is no guarantee that every procedure has led to harm or
injury, then damages will have to be paid.
on this.
All people are agreed
The difference is only on the mechanisms for redressal
of grievances.
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CHAPTER
VIII
THE FUTURE
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HOW THE HEALTH CARE INSTITUTION
IS GOING TO FACE THIS NEW CHALLENGE?
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PRECAUTIONS AND PROTECTIONS REQUIRED BY
THE MEDICAL PROFESSION AND HEALTH CARE
INSTITUTIONS.
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CHAPTER VIII
THE FUTURE
Future is something that is a time yet to come.
Future is a
prospective condition, something remote yet so near.
Future can
be something which depends on the present and built on it.
It can
be either a continuation of the present or something that is entirely
It is something which depends very much on the plan that we
new.
make for the future.
The actualization and concreteness of tomorrow
will depend to a certain extent on the efficiency of our plan of
today.
I.
The future is a challenge.
It is a challenge, particularly for the medical profession and the
health care institutions.
This present era of consumer Protection
Act and the rapidly expanding consumer movement, presents the health
care institution and the medical professionals with a challenge with
force.
It is upto the medical profession and the health care insti
tution to plan and decide as to how it is going to face this challenge.
The hospital authorities have to think of ways and means of
it.
facing
Quality is the answer, the solution and the weapon that I can
suggest best
to the present situation.
Quality is better than quantity.
For a health care institution
and the medical profession the quality of services provided can be
an advertisement and an asset that can be used to face this challenge
1. Criteria for assessing quality of care
Whether Governmental or non-Governmental, Voluntary/charitable
or corporate, quality of care is equally applicable to all sectors.
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This quality of care is of greatest importance to the patients who are
the recepients of the services offered by the medical profession and
It is their(patients') interest to which
the health care institutions.
the institution should attach priority.
In order to provide the
patients, the consumers of health care/medical profession, their interests
and preferences must be considered.
Certainly, it is not going to be
easy to satisfy every patient, as wants, needs, hopes and desires
differ from patient to patient.
Therefore we must plan something that
will he materialised, that can be made available, something that will
be concrete and something that will be appreciated by the patients for
whose sake the health care institutions and the medical profession exist.
a) Personnel:
personnel.
No health care institution can function without the
Actions always speak louder than words.
The personnel
who work/render services in the institution and the kind of services
they render are the main factors that contribute to the fame and
name of the institution.
Just as face is the mirror of the mind,
the employees are the mirror of the institution.
The health care
institution has no visible products or tangible goods to exhibit to
the world to prove its efficiency and quality.
This job has to be
done by the employees by the kind of service they render to the
patient and the public.
It is the patient centeredness that is
counted and appreciated by the patients and it is the patients who
make/do the advertisement on behalf of the institution.
Iherefore it is very important and a vital necessity to have
people/professionals who are wall trained, legally recognised and
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professionally competent enough to provide/render service.
As far as
possible, the hospital must take care not to employ personnel with no
proper professional qualification to provide professional services.
This has
to be taken care of
to make sure of the safty of the patient,
the hospital as veil as the person himself/herself.
Having proper personnel is of vital importance to the health
care institutions.
But it is equally important to provide the patients
with an environment that is safe, secure, pleasent and conducive to
healing.
The institution (the authorities) should make sure that it
has professionals who are interested not only in a patient who responds
dramatically to a new antibiotics, but also is equally interested in
situations that require monotonous long
time care of patients as in
the case of a child with cerebral palsy.
The hospital authorities should ensure personnel(especially
medical professionals) who will treat their patients without making any
discrimination because of caste, creed, colour, status, political and
financial capacity, nationality etc. - doctors who will consider their
patients as one of their family member and treat him accordingly.
It
is not going to be easy; but it is a need.
It is the duty of the hospital authorities to make sure that
patients do not have to wait for too long to see a doctor or to get the
tests done or to pay a bill.
In case the patient is not satisfied with
a doctor, or feel the need to consult another doctor, the patient must
be allowed and even
helped to have his need met.
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The institution will greatly reduce problems of negligence
or incompetence, if it can provide facilities for on going education
of the medical professionals and the facilities to up-date themselves
which in turn will be beneficial to the patient they treat.
In order to make things easy for the patients and their
relatives and the public at large, an efficient reception is a must
in every hospital which will provide the patients and the public with
necessary information.
b)
Facilities;
Every health care institution must provide or should
have the facilities to provide care that is of a recognised standard
of performance.
Certainly no patient will ever like to go to a
hospital that provides substandard care and treatment.
c)
Treatment; Ike treatment provided by the health care institution
must be such that it is open to all categories and types of people
without any sort of bars and distinction.
Sometimes the treatment may be very costly, especially in an
unusual case or situation(as in case of patient with cancer and needs
radiotherapy, chemotherapy etc.); but no patient must be turned back
(sent away) because he has no money.
Even if the patient has no money,
as far as possible, the hospital should consider the patient and provide
the essential treatment.
After all the hospitals are meant to save
lives and preserve and protect them and also to prevent what can be
prevented especially from further damages and losses.
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Science and techenology are advancing day by day and
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sophisticated facilities are becoming more and more common these days.
The hospital authorities and the medical professional must try to keep
pace with them and be practical minded to equip themselves with the
latest knowledge and moderately sophisticated ones.
It is very important
to be uptodate with the time and place and the need of the people.
Today most of our people cannot afford the sophisticated treatment;
but they certainly need the care due to them.
Opposition is a must for a proper democracy.
So also in a
hospital situation, a feedback system by the patients and the public
is a must to assess the efficiency of the hospital and also to see how
beneficial it is for the community and the public.
A feed back system
enable the hospital authorities to be aware of its SWOTs.
2.
ACCOUNTABILITY
Health care institutions are an asset of the community to
which it belongs.
The institutions, whether they are public or private,
are responsible to the community.
The health care institutions exist in the society; they
exist also because of the community/the society; and they exist also
for these communities and societies.
Hence, they owe a duty to the
society not to injure anyone individually or as a group, as the
health care institutions are accoubtable to the society at large.
The institution has to take the responsibility for what is
done for the patient.
As far as medical negligence is concerned, the
ordinary duty of the health care institution and the medical professional
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is to exercise the reasonable care and provide the standard treatment.
If not, the health care institution as well as the medical professions
can be held liable for negligence.
The hospital authorities have to
make sure that its personnel are properly trained, sufficiently
competent and possess the licence to practice.
The hospital authorities
must make sure that the physical condition of its buildings and grounds
are safe enough for the patients, the visitors and the public to move
around freely.
happens to any of them due to the
If anything
negligence of the hospital, in providing proper facilities, then the
institution has to take the responsibility and pay the compensation.
"Hospital has an obligation to furnish reasonably adequate equipment
for use in diagnosis and treatment of patients; problem can arise,
when the hospital does not own the necessary equipments, when these
equipment is not available, or when the equipment has not been properly
inspected or maintained."(102)
5.
PROTECTION OF THE CONSUMERS INTERESTS
The patients are the consumers as they avail the facilities
and services of the health care institutions and the medical care
professionals.
"One of the reasons is that the patient places his
entire trust in the doctor.
doctor.
He is to have immense confidence in the
In the law of Hindus, we have a saying, "Vaidyo Narayan Hari."
This means a doctor is equivalent to Narayana or Hari.
The same holds
good with other countries also.
The greater the trust you have in a
person, the greater the duty to
take care." (10?)
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The hospital and its personnel have got a grave responsi
bility to provide care and treatment according to the standards
relevant today.
The method needs to be up-dated and mordern means
must be adopted in the diagnosis, treatment, even in the prescription
of drugs and so on.
The hospital and its doctors have certain
responsibilities to maintain and follow certain standard of care and
treatment that is widely accepted.
This standard has to be main
tained both individually by the medical professionals and by the
institution as a whole.
4.
QIJR HISSION TO SERVE THE COMMUNITY
The health care institutions exist, not for themselves,
but for the community.
The medical man exists, not to make himself
richer, but to serve the sick and the suffering of the community/
society and if the needs of the community are not met by the doctors
and the health care institutions then they have no right to exit.
II.
PRECAUTIONS
As the saying goes, prevention is better than cure.
And
there is no use crying over the spilt milk.
The medical professionals and the health care institutions
as a whole, have to take certain precautionary measures to prevent
*
incidents/occasions that are unwanted and unpleasant.
accidents or unforeseen incidents can happen.
At times
But nobody will blame
the hospital for it provided the hospital/doctor had taken the
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necessary precautions to prevent them.
We are expected to take
measures to prevent only what can be prevented.
1•
Limits of medical care; We should know the limits of medical
care both as an individual and as an institution.
The medical
professionals and the health care institution as a whole deal
with human beings.
beings.
They handle life and death of these human
Therefore, care must be taken to preserve and promote
life, and health by exercising reasonable skill, care and knowledge.
If a doctor feels it is a case beyond his capacity and speciali
sation, certainly he should not play with it.
While providing
the emergency treatment, arrangement must be made so that the patient
may be taken care by a competent and qualified person.
In all
simplicity and humility, the doctor must realise his limitation
which should prompt him/her to refer the patient to those who will
be able to manage the case efficiently.
For example,if a patient
with serious head injury comes to a doctot who happens to be a
gynecologist, while attending to the patient and providing the
emergency care, she should make arrangements so that the patient
may be taken over by a neurologist/neurosurgeon.
If such patients
come to a dispensary which has no facility to care for such patients,
the patients must be referred to a better hospital.
If necessary,
the doctor from the dispensary must accompany the patient to the
bigger hospital.
In the absence of these two measures, if something
happens to the patient, the patient or his/relatives can sue the
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doctor for not exercising hie duty of care and for being negligent,
and for not taking steps to prevent further damage and the possi
bility of shortening the expectation of life.
2.
Quality assurance; "A spoonful of honey can
catch much more flies
than a barrelful of vinegar" says St. ?rancis de sales.
Quality is the distinguishing character.
It is the
characteristic trait; the degree of excellence; the high rank of
social standing or the quality of proposition; its being either
affirmative or negative.
Quality of service is an important parameter for the
hospital which is accountable to the community as well as to provider
of the resources.
Quality assurance has become a major concern
in the delivery of medical care.
The demands of the community,
economics of medical practice specially due to technological
developments, increasing legal action in malpractice cases and
concern to protect the interests of the client have focussed the
attention on quality of assurance programme for all hospitals.
In the past, though there was so much of dedication put
into the services, especially by the voluntary charitable hospitals,
the health care institutions were very slow to respond to the concern
for quality and ensure quality.
But today this quality assurance
programme has become a vital necessity, to ensure efficiency of
health care service everywhere.
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"Quality is not assured by chance but it has to be planned.
Quality assurance is a concept which strives to provide the evidence
required to establish confidence of all concerned, that quality
function is being adequately performed.
Quality assurance has
been defined as "sum total of the organised arrangements made with
the object of ensuring that product will be of the best quality."(104)
To measure the quality of service in absolute terms in
health care services is a rather difficult task.
All that can be
demonstrated is the improvements in the outcome of care and this
care/service rendered in an acceptable manner maintaining the
professional standard.
A hospital can be held liable for negligence
and want of care which may result in injury/damage or lose to the
patient only when it fails to apply that aesthetic touch of quality
in services rendered.
This quality can be projected and protrayed
primarily, only if the personnel rendering the service, has an
inherent quality which is automatically expressed in his/her action
or services rendered, and secondly it depends on the policy and
objectives of the institution which lays emphasis on the quality
of services rendered to the patients.
This requires constant
supervision, checking and dedicated and conscientious guidence by
those in authority.
"According to the American Society of Internal Medicine •Quality medical care embodies a scientific approach to the establish
ment of a diagnosis and institutions of appropriate therapy and manage
ment, designed to satisfy the overall needs of the patient.
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'•
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It should be readily available, efficiently rendered and properly
documented."
It is an on going process.
Its goals are to measure
and to evaluate the professional services rendered to patient in
Services in a proper quality assurance programme
the hospital.
is measured against a prevailing and accepted standard of profess
ional care.
The end and product of quality assurance is the
improvement of care; it is supposed to change the behaviour of
physicians and health tean members and there by improve the quality
of care." (105)
The hospital or medical personnel is not likely to be sued by
patient, if the patient was assured and provided quality care and
treatment by the medical professionals and the health care insti
tutions.
^ven if the patient did sue, inspite of the quality of
care provided, the law in our country is such, it will not abandon
the medical man.
Here again it is important to remember that
quality care/treatment can be provided only by a quality person.
5.
Efficient management:
efficiency is the effective power to bring
to pass on fitness to do a job well.
In a way it is a kind of
exhibition of one's capacity or competence to manage things well.
It is the ability to bring out the maximum out-put or benefit with
the minimum input.
Efficiency is proved by the ability of the
person to allocate the scarce resources to achieve certain objectives.
The objectives of the medical profession and the health
care institutions are to preserve life by promoting life and health
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as well as preventing and controlling diseases.
If these objectives
can be projected to the patients and the public at large and if the
medical profession really make an effort to achieve it by providing
and assuring quality care, then certainly the health care institu
tion is safe and no patient will ever think of sueing a doctor or
the hospital.
4.
Insurance Coverage: No hospital or no medical professional can be
so sure of its being safe and free from being negligent, however
careful the doctor may be.
There is always a chance/risk and the
doctor and the hospital must be prepared to meet it at any time.
This is possible only by having the professional indemnity coverage.
It is a safty measure to face those times of problems and emergency.
jispecially today when the consumer movements are so active and the
consumer forums are so much consumer centered, the hospital and the
doctors cannot afford to take risk.
Today this professional indemnity
insurance coverage is a vital necessity for self protection on the
part of the medical professionals himself and to protect its employees
from the part of the institution.
The insurance premium is gone up so much that the doctors
find it difficult to pay it by themselves.
Hence the doctors will
not be so willing to work in an institution which is not willing to
assure him/her the necessary medical defence cover and the support.
On the other hand the hospitals, especially the Voluntary/Charitable
ones will also find it rather difficult to shoulder this burden of
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providing professional indemnity insurance coverage to all its
medical professionals.
So for both the parties it is going to be
a difficult time and choice for both the hospital and the doctor.
This is only one side of the story.
On the other side the patient,
who has become suddenly aware of and alert about his newly recognised
rights as consumer, is not going to spare the hospitals or the
doctor.
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CHAPTER IX
SUMMARY AND CONCLUSIONS
"
: 275
:
"
CHAPTER 1%
SUMMARY
AND
CONCLUSION
Where there ia law — both in letter and iff spirit - there
is discipline.
In order to bring about this discipline, in any
sphere of life, in any field of activity, there has to have some sort
of control.
In the medical profession we have the law that is related
to medical negligence which is not anyway different from the negli
gence in general except that it is a negligence by the medical
professionals - which result or cause damages that is suffered by
a patient or his legal heirs and dependents.
Although the medical profession is one of the most respoiBi-
ble callings. /vocation in our community and country at large, it
reflects the rot that seems to have set into our system.
The medical
professionals seem to have forgotten' the very purpose of their
vocation, namely prevention and control of disease, caring and curing
of the sick, promotion of health as well as rehabilitation of the
handicapped - finally leading to promotion of life itself.
What we
witness and experience today is corruption and malpractice that has
set unto the profession giving way to commercialisation, indifference,
inhuman behaviour and lack of devotion to duty and to the profession
itself.
Standard of profession and quality of services seem to have
lost its meaning and value, and these seem to have been replaced by
commercialisation which has turned this noble profession into a
big bad business .
274
: 274
Under the Medical Council of India Act, every doctor who
wishes to practise is expected to have the minimum standard of
qualification and registration for a licence to practise the profess
ion.
The Medical Council of India is empowered to maintain this
standard and ethics of the profession as well as the professionals.
Under the law of torts the medical professionals are expected
to possess the standard/reasonable/necessary knowledge and skill and
exercise reasonable degree of care while managing the patients.
Drugs are another entity subjected to standard and it is
upto the State Drug Controllers and the Drug Controller of India to
maintain this standard of drugs manufactured, distributed and used
in our country.
Though this Act is to ensure the safty of the people,
the link between the manufacturers and the medical practitioners as
well as the chemists endangers the health and well being of the
individuals.
Unlike the developed countries, in India, the medical care
is grossly inadequate on one hand and there is an increase in the
malpractice on the other hand.
But there was hardly any effort to
redress injustice caused as litigation in India is very expensive,
time consuming and complicated.
All these are factors that discourages
the patients from coming forward and seeking justice for themselves.
As a result, the Government of India, passed the Consumer
Protection
Act in 1986 in order to protect the consumers at large and at the
same time ensuring their rights as consumers.
On April 21st 1992,
275
•275
the judgement made by the National Commission, brought the medical
profession under the purview of C.P.A.
Health is something that is unique, in the sense, that the
supplier controls the demand.
The doctors made the decisions on
behalf of the patients: and the patients in turn accepted them
in good faith.
But today, the entire health system is facing a trying
period, as the medical profession is getting linked with the commer
cialization which increases the cost of medical care and decreases
its quality.
Every profession has its own code of conduct.
The same is
the case with medical profession too which is known as medical ethics-
a branch or species of general ethics.
Medical ethics is not a ready
made solution to the problems in the medical profession, but provides
a practical guidance to the medical professionals.
It is "A systematic
thinking on values that are at work in health care profession and
formulation of norms to protect these values."(106)
Ethical code is a set of guidelines which enables the
professionals to foster and maintain the ethos of the profession.
It helps the professionals to think and do what is right and good
for oneself and others.
For the medical profession there is an
international code of ethics and each country has its own code of
ethics.
In India, we have the code of
ethics of the Medical Council
of India to guide our doctors.
276
: 276
Every doctor who proposes to practise medicine takes the
Hippocratic oath binding himself to observe the code of ethics
contained in it.
Today many are the victims of medical practitioners
who are often negligent, callous and greedy.
Vast majority of these
victims are poor, illiterate and ignorant who suffer in silence.
Negligence by itself is not enough to establish liability.
There must be an injury caused by this negligence.
to establish liability
In
other words,
in the medical profession, the medical
professionals/the doctor should owe a duty of care to the patient,
and the doctor has deviated from this duty and as a result of this
deviation from the duty an injury is caused to the patient.
then the doctor can be said to be negligent.
Only
An error of judgement
by a doctor cannot be considered to be negligence, provided he applied
his knowledge, exercised reasonable care and used the necessary/
standard skill and used means available to treat the patient, that
were of standard practice of the place and time and took all the
available precautions to avoid harm.
Every patient is assured of his rights as a patient, namely,
the right to safety, right to be informed, right to choose, right to
be heard, right to seek redressal and right to patient education.
These are not anything new.
They were always there.
Where there is a right, there is a remedy.
In the past
there were two options available for the patients to seek remedy in
277
:
case of medical negligence.
of law.
277
The first one was to approach the courts
Now there were two courts, i.e., the criminal court and the
civil court.
Criminal Court: In case where the plaintiff is able to prove that
the doctor was grossly negligent, which is the proximate, subsantive
or direct cause of the patient's death, under the Indian Penal Code
the doctor will be punished by imprisonment, fine or both.
Civil Court: A patient who is rendered service on payment can file
a suit if the doctor was negligent in his treatment of the patient
and seek compensation providedzhe proves that the doctor was negligent
and action will be taken and the patient will be compensated by the
doctor under the Indian Contract Act.
Under the law of torts, if it is proved that the patient
has suffered harm due to the negligence of the doctor who owed a
duty of care and has deviated from his duty of care due to which
the injury was caused.
Here also the responsibility rests with the
plaintiff to prove that there was a duty owed by the doctor and has
deviated from this duty which is the cause of injury.
Then the
patient will be awarded a compensation whether the patient pays for
the treatment or not.
These were possibilities for the patient to seek justice,
but they were not very practical especially for an Indian patient
who often happens to be an uneducated, illeterate and poor, as it
278
-
5
278
:
~
So there
was very expensive, complicated and never ending process.
was a second option open to the patient namely to seek Justice by
approaching the Indian Medical Council.
dven this was not
very much
appreciated by the patient; because, if the I.M.C finds the doctor
concerned negligent, the maximum they could do was to punish the doctor
by temporary or permanent de-registeration of his name and removing
his licence.
But that did not compensate the patient.
For all
these reasons, very few availed these available facilities
.
the patients prefered to suffer the injustice in silence rather than
appeal for justice.
In India the standard of care expected of a doctor is the
duty which the doctor owes to his patient which have been succinctly
or briefly laid down by the Supreme Court which states that neither
the highest degree of care is required, nor the lowest degree of care
is enough.
What is required is a reasonable degree of care and com
petence judged in the light of the circumstances of the cases.
If a doctor is sued for negligence, the patient has to
prove that the doctor was negligent, except in those circumstances,
where the negligence is so evident.
Medical negligence may assume variety of forms such as
negligence in diagnosis, negligence in diagnostic aids, negligence
in administration of drugs, failure to take precautions, failure to
take proper consent,
negligence in the operation theatre and during
the post operative care, failure to give guidence etc.
279
279
Die doctor who undertakes to treat a patient must make
sure that he has the necessary knowledge and skill to handle the
case efficiently before he accepts the patient .
If he feels that
he is not competent enough to handle the patient, then the wise
thing is to provide the patient with emergency care (if needed)
and then refer to a person who is competent enough to handle him/
her.
A doctor handles the life and death of another person and so
he cannot be careful enough while dealing with the patient.
He
cannot play with someone else's life.
An institution, whether charitable, voluntary private or
public, non-profit or profit making, is responsible to see that
every patient who avails the service of the hospital is safe and
secure inside the hospital building and within the hospital premises
The institution is also responsible for the negligence of its
employees resulting in damage, harm or loss to the patient or his/
her legal representatives, apart from the personal liabilities of
the individual employee himself/herself.
From the legal point of view, if the doctors are careless
in performing their duties, or commit lapses, they are open to both
criminal and civil liabilities as well as the tort liability.
Here
what is important for the doctors to appreciate is that if they are
careless/negligent in their duties and responsibilities, if they are
careless in managing their patients, the law of contract the law of
torts and the Indian Penal Code will apply.
This is something they
cannot escape.
280
: 280
At the same time law is very considerate to the doctor in
considering the liabilities.
The law does not expect the doctor to
be perfect and successful always or infalliable.
ment is not a crime.
An error of judge
All that is expected of a doctor is to maintain
the standard of the profession, assure quality in his service, exercise
reasonable care and use standard measure/precautions,
He is expected
to guarantee care and not cure.
Sometimes there are more than one school of thought that
are current on a given subject.
of these school's teaching.
The doctors are free to accept any
If a doctor honestly adopts one to the
exclusion of the other, and if the outcome happens to be a failure,
he cannot be held to be negligent.
The doctor is on the safe side if he can prove, though
there was negligence, the damage is the result of a contribution by
the patient, which is known as the contributory negligence.
When the negligence is proved and the amounts awarded for
financial loss of the past or future is known as pecuniary damages;
the amounts awarded for pain and suffering of the past or future as
well as loss of enjoyment of life in respects of sports, married
life etc., are known as non-pecuniary damage.
These days the people are becoming more and more compensa
tion oriented everywhere/all over world and claims
sought for damages are steadily rising.
or compensation
In any litigation first and
foremost the court has to find out and make certain of the facts.
281
: 281
It is up to the court to decide who is right and who is wrong.
And
this depends on the parties' ability to impress the court with regard
to evidence; and the court will weigh it with facts, obtained and
then decide/pass judgement.
Unlike in developed countries, there was hardly any effort
to redress justice for damage caused, as litigation in India is very
costly, complicated and a never ending process.
Loyalty of the
doctors inspite of their wrong doings is another barrier for obtain
ing justice through the Medical Council of India.
Therefore to ensure
and provide easier, quicker and cheaper redressal for the patients,
the Consumer Protection Act was passed on the 24th December, 1986.
On the 21st April 1992, a judgement made by the National Commission
brought the services rendered by the medical profession also under
the purview of the Consumer Protection Act.
This C.P.A. aims at
quality service and accountability by the providers and producers of
services and goods.
This is the very reason why voluntary, charitable
and non-profit health care institutions also were brought under its
jurisdiction.
Consumer Protection Act was very much accepted and appreciated
by the people of India: like the dry land yearning for rain fall,
the public was waiting for an easy, cheap and speedy way of justice,
to escape the malpractices and corruption and commercialisation that
had crept into the medical profession.
282
282
The Consumer Protection Act called for setting up of
Consumer Protection Councils, both at the centre as well as in
every state which is meant to give suggestions to the Government
to effectively implement the Act.
from all walks of life.
It consists of representatives
The redressal machinery is considered
under this Act as the three tire system which has been established
at the national (national commission), state (state commission),
and district (district forums) level.
hach of these forums are
presided by a retired or working judge of the Supreme Court, High
Court and District Court respectively.
C.P.A on the 18th
After the amendment of the
June, 1995, the district forums handle complaints
claiming upto five lakh rupees, and the state commission upto twenty
lakh rupees as well as all the appeals from the district courts.
The National Commission handles all the complaints claiming above
twenty lakhs of rupees and the appeals from the state commissions.
In all these forums the services are free of charge and the clearance
of the complaint is supposed to be within ninety days.
complication in the procedure.
There is no
All that the aggrieved person has
to do is to write the complaints on plain paper, giving all the details
and then give it to the forum/commission either in person or by post.
All the rest will be seen to by the forum/commission and the case
is to be decided within ninety days.
All the provisions of the Consumer Protection Act, 1986
came into force on the 1st July 1987 throughout the country.
and Kashmir enacted its own legislation in this field.
Jammu
All the
,283
: 285
States and Union Territories constituted tne State level consumer
protection councils.
Some district forums are yet to be constituted
by the state Governments.
The Central Consumer Protection Council
was formed on 1st June, 1987.
The Council was reconstituted w.e.f
25rd August, 1990.
The National Commission started functioning on 27th December,
1988.
Justice Mr. V.B.Eradi is President.
The Consumer Protection Act has an amendement passed on
the 18th June 1993, which deals with a number of changes.
Hie application of C.P.A in the medical profession is aine d
at the protection of the patients, raising at the same time, the
standard of the profession and improving the quality of services.
On the whole most of the medical professionals and the
hospital authorities are aware of the legal aspects of medical
negligence as well as the application of C.P.A to the medical/health
care services.
It is being appreciated by them.
They seem to have
accepted most of the implications of the Consumer Protection Act.
A great majority of them consider the C.P.A as an opportunity to
improve the standard of profession and the quality of services.
most of the cases, the medical professionals are not against
Consumer Protection Act.
In
the
But what they are against is the discrimi
nation made by the Act wherein the application to the Government
hospitals and its doctors are left out, whereas the private sector
284
! 284
is brought within the boundaries of the C.P.A.
They are also sore
that the consumer court does not have their (medical professional’s)
representation.
Once these two grievences are taken into considera
tion, then more of their support can be achieved.
After all their
(the medical professional's) requests/demands are not something that
is too difficult to be achieved.
These requests/demands when taken
into consideration, the C.P.A may prove to be more successful.
The
future of the medical profession and the health care services will
be greatly influenced by this consideration.
If not, C.P.A may remain
another piece of ineffective law in our country.
■ 285
CHAPTER X
I
I
I
A.
REFERENCES
B.
BIBLIOGRAPHY
C.
APPENDICES
REFERENCES
1.' Park J.E. and K. Park : "Park’s Text Book of
preventive and Social Medline"
13th ed: 1991.
P:25, M/s. Banarsidas Bhanot Publishers, Jabalpur.
2. Ibid
P:25
3. Ibid
p:25
4. Surgeon-General’s Report on Health Promotion and
Disease Preventions HEALTHY PEOPLE,
US Department
of Health Education and Welfare, Washington 1979,
P:119.
5. Park J.E. and K. Park:"Park*s Text Book of Preventive
and Social Medicien” 13th ed: 1991. P:25 M/s. Banarsidas
Bhanot Publishers; Jabalpur.
6. Ibid
p:36
7. Ibid
P:37
8. Ibid
P:38
9. S.G. Kabrci and D.N. Saraf:"Legal Issues Relating to
Health", Health for the Millions . Vol.XVIII Feb-
April 1992, Nosl &2 P :53.
10. Editorial: Perspective on "Law, Medicine and People",
Radical Journal of Health,
P: 77.
11. Ibid
12. ibid
No.II March 1988 No :4.
13. S.G. Kabra and D.N. Saraf: "Legal Issues Relating
to Health" Health for the Millions
Feb - April 1992.
Vol XVIII.
No: 122, P: 53.
14. "Christian Medical Work and Consumer Protection
Act"; C.M.J.I.
Vol. 7: July - September : 1992;
No : 3; P : 12.
15. Ibid
P. 12
16. Neki, J.S : "Professional ethics in the field of
Mental Health Social Justice as its new Premise",
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17. Francis C.M. : Medical Ethics I ed; 1993; P :4
Jaypee Brothers Medical Publishers (P) Ltd, New
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18. Davis,F.A : Medical Ethics
6th ed; 1967 ; P :l-3
16; F.a. Davis Co, Philadelphia.
19. Kalam, Thomas : Class notes on Medical Ethics 1993
(Unpublished).
20. Lobo, George V, ; Current Problems in Medical Ethics
1989 P : 36, Better yourself Book, Bombay.
21. Ibid
P:36
22. Francis, C.M. : Medical Ethics
1st ed: 1993 P :19
Jayapee Brothers Medical Publishers (P) Ltd, New
Delhi.
23. Lobo, George V. : Current Problems in Medical Ethics
1989 P :36; Better Yourself Book, Bombay
24.
Bio E-thics - Vol :4
" Codes and Statement related
to Medical Ethics" P : 1749 -1750.
P : 1788 - 1789
25. Ibid
26. Lele, R.D : "The Medical Profession and the Law :
An Over View": The Medical Profession and the Law;
1st ed; 1992, P : 9
sajjan Sons Publishers, Bombay
27. Krishna Kumar, R, Maria Abraham; K.M. Rakesh; C.
Suiit Chandra Kumar; "The Patient battles". The
week;
June 13th 1993 ; 29, 30.
28. Gurbax Singh : The Law of Consumer Protection :
P: 3,4 Bharat Law Publications. •//>) /:'/r ')
/l?^
29. Addison : "Laws relating to medical practice";
Taylor1s
Principles and Practice of Medical
Jurisprudence.
13th ed; 1964 ; P:39. Churchill
Livingstone, London.
30. Regan and Moritz : "Malpractice" Hand Book of
Legal Medicine;
1956; P:31, The C.V. Mosby
Company, St. Louis.
31. Knight, Bernard ; "Medical Negligence", Legal
Aspects of Medical Practice; 3rd ed; 1982
P;48; Churchill Livingstone, Edinburgh.
32. Desai, Mihir: "Medical Malpractice and the Law",
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Legal Research for Social Action P :19
33. Brahma Reddy, V : "A must when Medicine has become a
Business"; Health Action;
Vol:6; No.6; June 1993;
p. 14.
34. Glossary on "Terms as defined in the Consumer Protection
Act, 1986"; Health for the Millions;
Vol: XVIII;
No. 6; December 1992; P:34.
35. Phantnani Pritam,
: "Negligence in Medical Practice";
No. 171 - 172 - Medico Friends Circle Bulletin ;
May - June 1991; P :2.
36. Mason, J.R and R.A Me Call Smith : Law and Medical
Ethics, 1987, P:165 Butterworths, London.
37. Chacko, T ; "Medical Negligence"; Health Action;
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38. Mathew P.D. and P.M. Bakshi : "Medical Malpractice
and the Law"; FRCH News Letter, Vol V, No.4; July August 1991; P. 7.
39. The Bare Act on Consumer Protection Act 1986: P.3.,
Laksmi Narayana Publications, Bangalore.
40. Gurbax Singh, Law of Consumer Protection Act;
P 3, 4; Bharat Law Publications.
41. vyas, Sudhir : "Decaan Herald New Service", The
Deccan Herald, Bangalore dated 24.7.1992.
42. Sood, J.J. : Indian Express, New Delhi dated
26.5.1992.
43. Ibid
44. Narayan Ravindra
: Hindustan T^mes, New Delhi
dated 17.3.1992.
45. "Medical Negligence", Issue before the Public;
1993, P. 2. voluntary Health Association of India,
New Delhi.
46. Francis, C.M.: In "Editorial" Health Action, August
1993; P:3.
47. Kannapiran, Chandra: "C.P.A. 1986 " Health for the
Millions,
January 1992 Vol: XVIII ; No. 3, P. 40.
48. Naik Ganu : "Who will judge the Doctors"; Health
and Nutrition;
October 1992. P. 64,
49. Chakrabarthy, S.C.: "Who will judge the Doctor";
Health and Nutrition; October 1992; P.64.
50. Nathwani Juliet : Who will judge the Doctor? ;
Health and Nutrition; October 1992; P. 64, 65.
51. Grant K.B.: Health and Nutrition;
October 1992;
P.69
52. Mulekar, Sanjeev: Health and Nutrition; October
1992; p.69
53. Gupta Anupama Das: Health and Nutrition;
October
1992; P.69
54. Kuppuswamy Alladi: "Balancing between the rights
of the Doctor and the rights of the patient";
Health Action, June 1993; P.9.
S6» Mathew, P.D. and P.M. Bakshi : "Medical Malpractice
and the Law"; Health Action;
August 1991.
56. Chacko, T : "Medical Negligence"; Health Action;
January 1989; vol. 2, No 1; P.31.
57. Mathew P.D and P.M. Bakshi : "Medical Malpractice
and the Law"; Health Action;
August 1991.
58. Bricihaspathi Shruthi : Sacred books of the East;
Vol. 15.
59. Erimback Laxman V, A.i.R, 1969; SC.131.
60. Tewari,C.K., Law of Torts-and Liability";
Legal Aspects of Health Care; 1993, Unpublished
notes of C.K. Tewari.
61. Knight, Bernard Legal aspects of Medical Practics ;
3rd ed; 1982; P.57, Churchill Livingstone,
Edinburgh.
62. Ibid
63. Ibid
64. Lele R.D. : "Legal cures to Medical Malpractice",
The Letter of the Law
Lifeline, Indian Express,
Bangalore dated 12.6.1993, P.9
65. Ibid
66. Ibid
67. Krishnakumar, B Maria Abraham ; K.M. Rakesh, C.
Sulit Chandra Kumar, "Patient Battles"; The week;
13th June 1993; P. 29.
68. Dr. R.D. Lele : "Legal cures to Medical Malpractice"#
The letter of jhe Law#
Life Line - Indian Express,
Bangalore 12.6.1993# P.9.
69. Ibid
70. P.H. Addison: "Lawa relating to Medical Practice";
Taylor's Principles and Practice of Medical Juris
prudence ;
13th ed; 1984; P.40, Churchill Livingstone
London.
71. Ibid, P: 40, 41
72. Ibid, P: 41
73. Ibid., P:41
74. Ibid.# P:51
75. Regan and Moritz : "Special defenses"; Hand book of
Legal Medicine.
1956# P:89; The C.V, Mosby Company#
St. Louis.
76. Ibid, P:52.
77. Sen Gupta S.P;. Sen Gupta's Commentaries on the
Consumer Protection
Act ; 1st ed; 1992 P.l#
Kamal Law House# Calcutta.
78. Gurbax
Singh :The Law of Consumer Protection;
P.30,45; Bharat Law Publications.
79. Ibid. P:26
80. Ibid, P XXIII
81. Sen Gupta, S.p.j Sen Gupta's Commentaries on the
1st
ed; 1992; P.5; Kamal Law House, Caicutta.
82. Gourishankar, V : "Bringing Doctors and Hospitals
to Consumer Courts"; Health Action; Vol.6, No.6
June 1993; P.4.
83. Ibid., P.5
84. The Bare Act on Consumer Protection Act 1986;
P.4; Lakshmi Narayana Publications, Bangalore.
85. Ibid., P:4
86. Bal, A : "Medical Councils - failure to enforce code
of ethics"; Health for the Millions;
Vo. XVIII;
No. 6; December 1992; p:12.
87. Ibid, Ps25
88. Feature : "Consumers and the Medical Community";
C.M.J.I.;
Vol. 7, No 3; July - September 1992;
P. 5.
89. Ibid., P.7
90. Chari, A.k.,
: "More a menace than a help to health
Profession"; Health Action;
Vol.6; No.6; June 1993;
p. 20,21
91. Ibid., p.21
92. Ibid P.23
93. Feature; "Consumers and the Medical Community";
C.M.J.I. ;
Vol. 7; No.3: July - September 1992;
P.6.
94. Chengappa Raj, Prakash M. Swamy, and Lekha Rattanani:
"Doctors in the dock"; India Today,
30th; 1993 p.96
95. Ibid., P.99
96. Ibid., P.95
June 16th -
97. Feature "Consumers and the Medical Community";
C.M.J.I.;
Vol.7 ; No. 3; July- September 1992;
p.6.
98. Lele, R.D. • The Medical Profession and the Law;
1st ed; 1992; forward by Justice V.S. Deshpande;
sajjan Sons, Bombay.
99. Readings in Medical Care
edited by the Committee
on Medical Care teaching of Association of teachers
of Preventive Medicien; Chapel Hill, The University
of North Carolina Press, New York, 1958.
100. Lele, R.D. : The ^edical Profession and the Law;
1st ed; 1992; p.7 sajjan Sons, Bombay.
101. State of India's Health; 1992 p. 356, Voluntary
Health Association of India, New Delhi.
102. Tewari, C#k# Legal Aspects of Health Care : Un
published notes, 1993.
103. Kuppuswamy Alladi: “Balancing Between the rights of
the Doctors and the Riqhts of the Patient", Health
Action;
Vol.6, No.6, June 1993; P.9
104. Sharma, R.R.^: "Medical Audit as tool for quality
assurance Programme in large hospitals". National
Hospital convention and 17th Hospital Management
Seminar, 1988; P.2.
105. Roy, A.K.: ‘“‘uality Assurance, unpublished notes, 1993.
106. Kalam, Thomas: Medical Ethics unpublished notes, 1993
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18. The Indian Journal of Medical Education: Vol:V;
No:2; Jan 1966.
VolsXXX; No:l; Jan-April 1991.
19. Dr. R.D. Lele: The Medical Profession a nd the Law;
1st ed; 1992;
(Sajjan Sons Publishers, Triveni
Bunglow; Malad (West); Bombay- 400064).
20. Dr. C.M. Francis: Medical Ethics;
(jaypee Brothers Medical publishers,
1st ed: 1993;
(p) Ltd.,
Post Box-7193, B—3, Emca House, 23/23B, ^hsari
Road, Daryaganj, New Delhi - 110002, India).
21. R.F. Bridgman and M.I. Roemen: Hospital
lation and Hospital System,
Legis-
(W.H.O. 1973).
22. A. Rajkumar: Acta Applicable to Hospitals in India;
(The Christian Medical Association of India; Jana-
Kpuri, New Delhi - 110058).
23. Bernard Knight: Legal Aspects of Medical Practice :
3rd ed: 1982;
(Churchill Livingstone London 1982).
24. Regan and Moritz: Hand Book of Legal Medicieftt
(The C.V. Mosby Company. St. Louis. 1956).
25. Committee on Medical Care Teachina of the Associ
ation of Teachers of Preventive Medicine: Readings
in Medical Care:
(Chapel Hill. The University of
North Carolina Press - New York- 1958).
26. George V. Lobo. S.J. : Current Problems in
Medical Ethics:
5th Reprint; 1989;
(Better
Yourselves Books. Bandra. Bombay - 400050, 1989).
27. Dr. Unnikrishna P.V. and Ms. Rama V. Baru:
Medical Negligence
Issue before the Public;
V.H.A.I., 40, Institutional Area; South of IIT,
New Delhi, 110016, October 1992.
28. Manorama Year Book 1993.
29. Medico Friend Circle Bulletin : 146 - December 1988.
147, Jan 1989., 164-165, Jan 1990., 166. Aug 1990
171-172, May-June 1991., 173-174. July 1991, 178-179
Jan-Feb 1992., 184-185, JUly-Aug 1992.
30. The National Medical Journal of India;
31. The Rational Use of Medicine:
Vol:5; No.6
(V.H.A.I., 40,
Institutional Area, South of IIT., New Delhi), 1989
32. Radical Journal of Health:
Vol:I; No:2; Sep 1984.,
Vol:I; No*3; Dec 1986., VolsII; No:3; Dec 1987.
Vol:II: No:4, Mar 1988.
33. uPABHOKTA JAGARAN,
Vol:I, No:8, March 1993.
(on
rights of consumers).
34. Park J.E. and K. Park: "Park's Text Book of Pre
ventive and Social Medicine: 13th ed; 1991
(M/s.
Banarsidas Bhanot Publishers, Jabalpur.
35. Surgeon General's report on Health Promotion and
Disease Prevention: Healing People
(U.S. Depart
ment of health education and welfare, Washington,
1979) .
36. A. Keith Mant: Taylor's Principles and Practice
of Medical Jurisprudence: 13th ed; 1984;
(A. Keith Mant; Churchill Livingstone, London.)
APPENDIX. ~ - 1
QUESTIONNAIRE - No, I.(For the administrators}
TOPIC : Legal aspects of medical negligence with special
reference to Consume^ Protection Act»(C.P.A.)
This study is conducted purely for academic purpose.
All the informations will be treated as confidential.
You are free not to answer if you wish so.
But I will
be grateful if you co-operate with me and give me these
in formations.
PLEASE TICK THE APPROPRIATE BOX
..........
Your designation,,...
1, a) Are you aware of the legal aspect of medical
negligence ? Yes/
7;To some extent
'
; No !
7
b) Do you think that the medical negligence is a big
problem in the country ?
Yes /
/
; No /
/
2, a)Are you aware of the Consumer Protection Act, as
it applies to health care institutions?
Yes /
i
;To some extent I
!
; No /
b)Do you think that it will affect the medical profession
and the health care institutions ?
To a great extent/
/
> To some extent
~
Jnot much
3, a)Have you ever faced any case of medical negligence
in your hospital ?
Yes <7"
» No __y
b)If yes, how many during the period April 1992 to March
1993 ?
c) Do you have any case pending now ? Yeeu 7
4.
; No /
7
Aire your health care personnel aware of the Consumer
Protection Act and its implications ?
; Most
All_
5.
; Some,
; None/’
J
») Have you tried to protect your hospital and your
employees from being sued by th® patients/consumer
of your service ?
Yes
i No /
~
/
b) If yes, how ?
c) Is th0 hospital covered by insurance against medical
negligence ?
J'!
; No
Yes /
d) If no, are you considering such coverage ?
6.
; No I
7
Yes /
7
Which are the areas of services in your hospital that
are more prone to medical negligence ?
Medical,1
7.
; Surgical
Nursing £
I
; 0. P.O.
X-Ray
'/
; Any other?
/
j
/ ; Anaesthesia
; Lab
‘
/
;
''
I
Which are the categories of employees more likely to be
involved in negligent acts ?
Doctors /
"
; Nurses
/
7
; Anaesthetists
Lab~techniciansi£7» Xray technicians
Administrators./!. / ;
Any other ?,
;
;
8.
a)Have you any particular system for patient’s comments/
.......
complaints/suggestions ?
Yes£
i
; No
; Lhderconsideration
~
b)lf yes, then how do you treat these complaints/
comments/suggestions ? • ••••................ •
9.
a)Do you think that the Consumer Protection Act is
beneficial to the institution in anyway ?
J No j___ /
Yes
b)lf yes, how ? • •
c)
lf
/y
;
••
no why ?
...
...........
10. a)Do you think that the Consumer Protection Act needs
to be modified ?
Yes
/
/
;
No /
I
;
Don ‘t know /
/
b)lf yes, then what modifications do you suggest ?
1
2
3.
4
»..
11«
What is your attitude towards those patients who
may sue your institution or your employees?
12.
What is your comment about Consumer Protection Act?
a) Will it improve the standard of medical profession
and the quality of health care services ?
Yes l~j
; No /'~J
b) Is it a hindrance to the profession/service
; No
Z
/—/
c) Can it destroy the image of the institution?
Yes /
d)
]
Can it be A means to check malpractice and the
quacks?
e)
; No /
]
Yes/
1
; No
/
Will it dampen the spirit of service of those
institutions ?
i No~f
YesO
13.
Will consumer protection act cause closure of voluntary
health care institutions ?
Yes /
14.
j
; No /
I
Will consumer protection act deter more voluntary
hospitals being opened in future ?
YesO
15.
J NoO/
Will Consumer Protection Act tend to increase the cost
of medical care ?
Y®8 --- /
» No /
/
; To a small extent /
/
1 6. Other comments/suggestiona?
Thank you for your co-operation.
SR. SOFIA
S.J.M.C.H., BANGALORE
APPENDIX
JI
QUESTIONNAIRE - NO.II (For the Doctors)
TOPIC : Legal asppcty of medical - negligence with special
reference to Consumer Protection Act(C, P.Af)
This study is conducted purely for academic purpose*
All
the information will be kept confidential.
You are free
not to answer any question if you so wish.
But I will be
grateful if you co-operate with me and give these informations.
PLEASE TICK THE APPROPRIATE BOX
Your speciality
1.
a)
Do
.....................................
you think that medical negligence is a major
problem in the country ?
b)
No /
/
Are you aware of the legal provisions in case of
medical negligence ?
To great extent/
2.
f
..... Yes /
/
.........
Somewhat/
J
/
not much /
Are you aware of the provisions of Consumer Protection
Act (CPA) as it affects the medical profession ?
To great extent/
3.
/
/
not much /
/
What do you think of the impact of C.P.A. on medical
profession ?
4.
Somewhat/
Good I
I
; Fair '
I
iBad/
J
a) Do you think that the C.P.A. will affect your relationship
with your patients
b) If it does, how ?
........
Yes /
/
; No /
/
5.
a) Are you a membir of 1.1*1.A. ?
; No
Yes
b) 1.1*1.A. is not in favour of the application of
C. P.A to the service rendered by the medical
profession.
Do you agree ?
6.
Yes /
/
j
; No/
a) Do you have the professional indemnity insurance
Yes I
individually ?
1
J
; No •
b) Do you have the professional indemnity insurance
Yes I
through the institution ?
]
No/
i
c) If not, do you feel th« need to be insured ?
Yes /~~7
T
5 No /
d) If you have insurance against claims for medical
negligence, do you consider the premium ?
Very high I
7.
I
/
Do you feel that the C.P.A. affects your professional
freedom ?
8,
J Reasonable/
Yes
/
7
i No I
I
a) If C.P.A. continues to be applicable to the services
rendered by the doctor, do you think that it needs to
be modified ?
....
Yes [
/
;No /
/
b) If yes, then uhat would be your suggestions ? Please
list three important modifications*
1
2
3
9.
a) Do you think that the Medical Council of India
and State Medical Councils have the authority
and the ability to handle the problem of medical
negligence to the satisfaction of the patients
(Public) and the medical profession ? .... Yes I 1 ;N Of ~~7
b) If it is not adequate, would modifications to the
Yes /
Act make it adequate ?
J
/
; No
c) If yes, what modifications would you suggest ?
Please list three.
1
.........................
2
3
10. Have you ever faced a problem in managing the patients
because of C.P. A.?
Yea I
I
No
/
/
11« If yes, then what measures have you taken to protect
yourself ? Please list three
1
2
3
12. In view of C.P.A. what steps can help to avoid litigation
and its effects ? (Please tick one or more)
a) Provide proper explanation to the patient before and
after each procedure/treatment.
b) Regular visits to the patient to make sure that
he is comfortable and gets all care.
c) flake the patient consent before every procedure/
treatment
d) Avoid taking any risk......... consult others
and refer the patient to other specialists
e) Provide the emergency treatment and then refer
the patient to more competent persons
f) Any other ? (Please specify)
13.
.
a) Do you think that the C.P.A. will improve the
standard of medical profession and the quality of
health care services ?
Yes /
/
; No /
b) If yes, how ?
J
; to an extant Yes /
...............
c) If no, why ?
14.
[
......... .........
Do you think that C.P.A. will make doctors resort
to 'defensive medicine’? Yes/
I
; No i
!
15.
In your opinion,
will C.P.H.
of medical cere ? very much,
increase the cost
j
;
to some extent..
not at all
16.
Uhat would be your sincere re-action to a patient
who may sue you for professional negligence ?
Uhat other commenta/suggestions do you have on thia
topic ?
1
2.
............................................
3
.....
4
5
Thank you for your kind co-operation.
Sr. Suma
D.H.C.h. Student
S.J.M. C. H. BANGALORE. 34
I
Karnataka State Commission
of Compliant?
No.of Complaints
No.
Pending
rears
Karnataka State Commission
No.of Appeals
Appeal:
Pending
Years
Pending cases-O.B against Receipts
I////////Z4
Numbei
For the month of May 1993.
Districts -->
Numbers
For the month of May 1993
Total, Disposed and Pending Cases
g
g
b
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