SC's suggestions to protect the medical profession from harassment should be taken up by its regulators.
Ever since various professions were brought within the purview of the consumer law by a Supreme Court judgement in 1995 (Indian Medical Association vs V P Shantha), the worst affected by the legal interpretation are the doctors. Earlier, they could be prosecuted and punished for ‘gross’ negligence. Now they possibly face two-pronged litigation, trial for ‘criminal’ negligence, and suit for compensation for mere negligence in the consumer forum.
The men in white must be envying their counterparts in the legal profession. The men in black may run riot like those in Chennai and neglect their clients (nine working days this year). But their victims can rarely prosecute them or claim compensation, as the system is run by the very persons who wreck it. Though there are innumerable judgements from the Supreme Court making lawyers’ strike illegal, even the bar councils honour them in their breach.
There are other professions which could face action in court; like the auditors who help cook up figures for a fraudulent company or civil engineers who build infrastructure projects which collapse due to sloppy design or execution. These professions might be safe due to the ignorance of the victims about their rights or their reluctance to undergo the hassle of approaching court. It is the medical profession which has to suffer all the agony at the moment. This, despite several judgements of the Supreme Court to save it from vexatious litigation.
Last week, there was yet another judgement deeply sympathetic to the medical profession. In this case, Martin D’Souza vs Mohd Ishaq, the National Commission awarded Rs 700,000 to a person who complained that he had suffered auditory impairment due to medicines prescribed by the doctor. After analysing expert reports and legal precedents, the Supreme Court set aside the order and explained the law on this subject in great detail.
“While this court has no sympathy for doctors who are negligent,” the judgement said, “it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country, particularly after the medical profession was placed within the purview of the Consumer Protection Act.”
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This attitudinal change has adverse consequences on the community. Earlier, for example, when a patient who showed the symptoms of a heart attack came to a doctor, he would immediately inject morphia or pethidine before sending the patient to a cardiac care unit because in such cases, time was the essence of the matter. But after the Shantha case, doctors who administer the injection face medical negligence suits in the consumer forums. Therefore, many doctors have stopped giving such emergency treatment for fear of legal action. In cases of head injuries, as in road accidents, doctors used to give first aid like stitches to stop bleeding. But now they send the severely injured to a government hospital.
Therefore, the courts and the consumer forums should not take a view which would in fact be a disservice to the public, according to the Supreme Court. Doctors should not be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. Success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man’s control.
The principle to be applied to the medical profession has been evolved over the years. It is stated in the leading case, Jacob Mathew vs State of Punjab (2005), thus: “The doctor must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires.”
Though the court has been exhorting the Indian Medical Association and the medical councils to bring about harmony between the doctors and the patients in the context of increasing commercialisation of the profession and rising insurance costs, these regulators have hardly taken any substantive step in more than decade of the recognition of the problem in the 1995 case.
The latest judgement suggests a palliative measure in the absence of any initiative from the professional bodies themselves. It has directed the courts below that whenever a complaint is received against a doctor or a hospital, they should first refer the complaint to a competent doctor or a committee of specialists. Only if they find a prima facie case of medical negligence should the court call the doctor to defend himself. The Supreme Court further warned the police not to arrest or harass doctors, lest they themselves should face legal action. If the medical councils and associations really want to protect their members, they should take these recommendations seriously and set up panels in every district or region to provide expert advice to the forums.