For twenty-three years, Barry Lang practised successfully as a paediatric orthopaedic surgeon in the United States. Then, he gave it up to start all over again. He enrolled in a law school and took up a new career — suing doctors.
Tapas Kumar Koley, a medical doctor, has not quite done that. But he has acquired insights into law to come up with a book that can be educative for medical professionals like him as also for lawyers and the rest of us who may have an interest in getting compensation for a medical negligence case.
The book is an effort towards filling in the need for educating medical professionals in the ethics of their trade and also towards making them aware of how they can practise medicine without getting sued. There is no doubt that the Indian medical system is full of issues and problems, and (is) rapidly going the American way as people seek quick-fix solutions to deep pains of negligence or errors of medical negligence through the Consumer Protection Act.
It’s not just the average common man, but the influential too are being affected now because of deep problems within the system. The late power minister, PR Kumaramangalam, died tragically at the age of 48 as a leading hospital failed to diagnose his disease early enough. More recently, the deputy director general at the Confederation of Indian Industry (CII), Jayant Bhuyan, died during a triple-bypass heart surgery when instead of the tube that transports blood, a tube supplying compressed oxygen was allegedly inserted into his aorta.
In none of these cases was negligence ever proven. It is hard to find evidence and pin blame in most of these cases. So, how would anyone know whether a medical complication suffered by one’s loved one was a result of negligence? And, more important, how could they prove it in court? The book provides some guidance by citing a compendium of cases of medical negligence under different specialities.
It explains what medical negligence is under Indian law and minces no words in detailing all that has gone wrong with the current practice of medicine here — such as non-essential referrals, unnecessary tests, investigations to earn a commission, cut practices, commission from pharmacies as well as manipulating prescriptions for a particular pharmaceutical company’s medicine for personal profit.
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For the average patient or her relative, Koley spells out clearly the options available for redressal: Damages under the Civil Procedure Code; complaint for negligence under the Criminal Procedure Code; redressal under the Consumer Protection Act and going to the Medical Council of India for disciplinary action.
Koley compresses a vast amount of well-researched material into the 378 pages. He covers various points in negligence: For instance, is failure to diagnose, negligence? In doing so, the author cites the case of a 12-year-old who lost his vision as doctors failed to link his early symptoms to reactions from a sulphur drug. Or, should a hospital pay compensation for a nerve injury by an injection needle pricked by a nurse? In this case, the hospital was asked to pay, as the nurse was allowed to leave the hospital when the case went to court. It quotes extensively from international literature to show what cases were proved as negligence.
But Koley is a medical practitioner and he sees doctors among the primary readers of his book, which takes away some of the objectivity one would expect from a writer. Koley says, “It is extremely important for the court to realise that medicine is an inexact science and as long as it remains so, differences of opinion and errors of judgement are bound to occur. It is still a science of trial and error. Medical science will progress only by this method till a suitable alternative is found. It is also the responsibility of the court to allow this science to progress the way it has for many centuries by giving due consideration to its lack of clarity and accuracy.”
What he misses out here is that India has few laws that regulate the practice of medicine. Those that exist are hardly ever implemented. In the more developed parts of the world, doctors try to practice “rational medicine” and ensure that everyone does so by following a series of medical protocols. Professional doctors’ associations try keeping a firm check on malpractices. In India, people with the most heartbreaking experiences take recourse to law as a way to give a resounding punishment to an erring doctor.
It would again have been a useful reminder to the reader that the Medical Council of India has hardly ever penalised any doctor for negligence. Koley points out that declining professional standards among doctors, mushrooming of private medical colleges that have teaching and facilities far below standards and lack of good teachers are a direct result of a lack of an effective regulatory authority in the Medical Council of India.
Koley’s book is timely even though the writing style could have been more engaging. Koley assumes he is writing for lawyers and doctors and gives us more of a heavy law school textbook read. It is a good reference tool even if you may not be able to read it from cover to cover.
MEDICAL NEGLIGENCE AND THE LAW IN INDIA
Tapas Kumar Koley
Oxford University Press
Pages 378; Rs 950
