Change in the attitudes of the medical profession and patients has led to runaway litigation.
The medical profession, like education, has become hopelessly commercialised in recent times with all its adverse consequences to society. There is a rise in the cases instituted against hospitals and medical personnel. Many patients hold the doctors duty-bound to cure all diseases and failure to do so invites criminal and civil action. Patients and their relatives even take law into their own hands and assault doctors as if being rude to the medicos is an assertion of consumer rights. The Supreme Court and consumer commissions have warned against this tendency in several recent cases.
Last fortnight, the Supreme Court dealt with yet another case of alleged medical negligence in Mahadev Prasad vs State of Uttar Pradesh. A person was brought to the clinic complaining of body pain. The doctor gave him three injections. Within half an hour, the man collapsed and died. Immediately, his son filed criminal complaints against the doctor. He was accused of causing death, having full knowledge of the consequences of the act. It was also alleged that the doctor threatened the son of dire consequences if the matter was reported. Thus, the doctor faced four serious charges relating to the death. He moved the Allahabad high court for quashing the complaint, but it dismissed his petition.
The Supreme Court did not reverse the high court order, but at least diluted the charges. It stated that the doctor could at best be charged with negligence and it should be proved in the court. Thus the doctor got temporary reprieve but the trial for the watered down charge will continue. In this context, the court cited its earlier view expressed in the leading case, Jacob Mathew vs State of Punjab (2005).
“In every mishap or death during medical treatment, a medical man cannot be proceeded against in a criminal court. Criminal prosecutions of doctors without adequate medical opinion pointing to their guilt would be doing disservice to the community at large,” the judgment said. “If the courts were to impose criminal liability on hospitals and doctors for everything that goes wrong, the doctors would be more worried about their own safety than giving all the best treatment to their patients. It would also lead to shaking the mutual confidence between the doctor and patient. Every failure or misfortune in the hospital or in a clinic cannot be termed as act of negligence so as to try him for an offence.”
This is some comfort to the doctors. However, the change in the attitude of the medical personnel and the awareness of rights of the patients have caused drastic changes in society. The personal bond between the doctor and the patient has all but disappeared due to commercialisation of the profession. The consultant doctors are in an endless hurry running from one clinic to another. They leave serious cases to their juniors. On the other hand, the consumer forums, where there is no court fee, have rendered suits for damages within the reach of every disgruntled person. Criminal proceedings are also cheap and may be used to force the hospital and the doctors to an advantageous monetary settlement.
As a result, doctors have become over-cautious and the insurance cost is passed on to the patients. The hospitals have added paper formalities to defend themselves in case of litigative exigencies, adding to the cost of medical services. Doctors now depend more on the investigative reports received from impersonal machines rather than their own judgement or intuition. Caesarian operations have increased as the doctors do not want to take the risks of waiting for a normal delivery.
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The Medical Council of India has been watching this situation getting worse with time, but it has not taken any serious steps since the day the Supreme Court brought medical services under the Consumer Protection Act in its judgement, Indian Medical Association vs V P Shantha (1995). It has not set up any mechanism which would defuse the friction between the profession and its beneficiaries.
As it happens, the burden to bring some order into the field has fallen upon the shoulders of the judges. Treatment of diseases involves adequate knowledge of science on the part of the medical personnel, sufficient infrastructure in the hospitals and an awareness that success depends upon various factors like characteristics and tolerance of the patients. The courts have to weigh all these factors and reach an equitable conclusion as there is no rigid formula in this field. The common complaint against the judiciary is that it is ungenerous in awarding damages. It seems to be too cautious to avoid the American model where if a primary school child breaks his leg in the playfield and the orthopaedic errs, the compensation will finance his college education.