When you visit a doctor, you expect a degree of competence and a diagnosis that you can trust. However, findings of a few studies indicate that trust in doctors working at private hospitals is declining. The number of medical negligence cases in India is going up by nearly 100 per cent every year, with more than 12 per cent of all the cases decided by consumer courts being on medical negligence. According to a report by a Supreme Court lawyer who analysed various cases at consumer forums, between 60 and 66 per cent of the filed cases are because of hospitals taking improper consent from relatives before performing certain procedures or switching hospitals, or improper documentation throughout the course of diagnosis and treatment. This article is an attempt to help consumers understand a few aspects that they should be aware of when caught in a legal battle involving doctors and hospitals.
– Dr Prem Lata, Consumer Awakening
Former Member, CDRF-Delhi
Negligence, simply put, is the failure to exercise due care. The three ingredients of negligence are as follows:
- The defendant owes a duty of care to the plaintiff.
- The defendant has breached this duty of care.
- The plaintiff has suffered a loss/injury (or has lost life) due to this breach.
Medical negligence is no different. It is only that in a medical negligence case, most often the doctor or the hospital is the defendant.
Medical malpractice litigation has two functions primarily. First, it deters physicians from lax, careless, or negligent behaviour, and second, it compensates patients (or their kin) who have suffered as a consequence of the negligence of the hospital, physician, or ancillary healthcare.
There are many different types of medical negligence which can result in litigations asking for punishment for guilty doctors or hospitals as well as compensation for victims. Misdiagnosis, missed or delayed diagnosis, surgical errors, and use of inappropriate medicines are some of the most common cases that courts across India deal with on a regular basis.
One of the main problems despite advances in medical technology is a high degree of dependence upon the human decision-making process. We know that x-rays, ultrasounds, scans and other such diagnostic technologies can identify many medical conditions, but their reading is totally dependent on doctors.
True, only a doctor can prove a doctor’s wrong and that people from same professions tend to stand by each other, and hence proving negligence is not all that easy. However, it is not that difficult either. There have been great developments in the area of medical investigations and examinations and a lot of information is available in the public domain, especially regarding standard procedures to be followed and treatments to be given for almost all conditions. It is possible for an aware and alert consumer to know where their doctor went wrong and how he may be challenged.
If you regularly read the Legal Matters section in this magazine, you would have read about many cases wherein negligence was proven by patients by providing all their records and statements of diagnosis by doctors vis-à-vis test reports as well as internationally followed standard operating procedures (created by recognized bodies), which includes the fundamental duties of a doctor.
The Supreme Court, while deciding a famous case (Dr Laxman Balkrishan Joshi versus Dr Trimbak Bapu Godbole and others), tried to underline the duties of a doctor and observed: “...the duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding which 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 above statement is referred to almost every time a negligence case is heard in the court. The statement also implies that the doctor has to take care in deciding whether to undertake the case and that care involves not just the intent and qualification but also appropriate facilities and infrastructure for the treatment. Hence, if a hospital admits patients, it is obliged to provide them treatment in compliance with the standards set by its affiliating body.
In short, consumers must remember that if a doctor or a hospital admits you for a treatment of a particular ailment but lacks fundamental facilities needed for the treatment, then it can be held guilty of negligence as much as the doctor for his erroneous diagnosis, wrong treatment or surgery, or wrong prescriptions or doses of medicines.
Get the Material Facts Right
While consumer forums scrutinize all the material placed on record before admitting the appeal, they will only go by the standard operating procedures set by the relevant authorities. Consumers must know that although they can gather a lot of information on medical practices, discoveries, innovations as well as malpractices in the medical space through journals, newspapers and the internet, such information may not give any weight to your content in the court of law.
Sometimes patients hide certain material facts from the doctor and this mistake proves fatal to the treatment. Doctors follow a standard treatment process which they avoid when they know that a patient is allergic, sensitive or is not fit for a particular treatment, etc. However, if such information is hidden from them, they cannot be held completely responsible.
Here is a relevant case.
A retired army doctor, on behalf of his wife, sued another doctor for negligence. As per the complainant, his wife underwent a normal breast-enhancement procedure wherein she received artificial implants to increase her breast size. However, after a few days, she complained about pain and irritation which gradually became unbearable.
After a lot of discussions, allegations and counter-allegations, it came to light that the lady had undergone a breast-cancer operation that had resulted in smaller breasts. As per the medical advice, for doing another surgery on the same place, dead tissues have to be revived through a medical procedure. In this case, no such procedure could be carried out as the doctors were not aware of the cancer treatment.
The courts rejected the appeal on the grounds that ‘complainant had not disclosed material facts’.
Seek Expert Help
It is true that engaging advocates is not essential for consumers but it being a technical area, medical cases require good drafting. A legal expert can put facts and events in chronological order with necessary proof.
More so, consumers must note that they have to talk, debate and argue before the jury and they need to be prepared for counter-questioning as well. Hence, a little support from a legal expert is recommended.
Do Insurance Companies Protect Doctors?
In case you do not know already, there are special insurance schemes for doctors wherein ‘negligence’ is insured by the company and doctors pay a regular premium for the same. When a doctor is found guilty of negligence and is asked to compensate their victim, it is the insurance company that will have to settle that claim. An unfortunate outcome of these schemes is that when you book a doctor for negligence, it is the battery of lawyers of insurance companies that leave no stone unturned to prove you wrong.
There is the interesting case of Gurudatta Puri Hospital versus Nusrat where guilty doctors never appeared for hearings – instead, lawyers of their respective insurance companies stood in their defence before the court.
The case was decided against the doctors in the district forum. The insurance companies appealed against the verdict at the state forum. The first matter of concern before the state commission was to find out if insurance companies (two in this case) could legally represent doctors and if they should be made a defending party along with doctors, considering they were the ones who would ultimately pay the compensation.
The state commission said: “The case can be dealt with and decided without the help of insurance companies with the records available. If insurance companies are brought in the picture, the consequences will be adverse for the consumers. That it would cause more delay and harassment by two giants cannot be ruled out. Doctors too may also take things lightly as their responsibility is taken care of by their insurance companies.”
The National Commission dealt with a similar case while disposing of revision petitions from Punjab state commission, but here the insurance company was allowed to become a party, keeping in mind the interests of consumers.
In the case of New India Assurance Company versus Hardeep Singh and others, the National Commission said that if insurance companies were barred from being a party, they would have a good case to go in appeal to a higher court on these very grounds, delaying the compensation process. Also, if the insurance company did not go for appeal, the accused doctors might do so against the insurance company to settle the claim on his behalf, which would further delay the compensation process.
Keeping consumers’ interests at the centre, the National Commission allowed insurance companies to be impleaded as party in defence, but defined respective roles of both doctors and insurance companies. The apex forum stated that doctors were to defend their cases on merit on their own, while insurance companies would only be an agency for informing about the validity of insurance made and its other relevant aspects – that is, admissibility, period of the policy made, etc. Any other objections of the company with regard to the policy had to be decided within the same court. This view of the National Commission was further confirmed by the Supreme Court.
Consumers may know that there is and always will be a moral dilemma for many people when considering medical negligence and claiming compensation. It is worth noting that the courts do not deal in moral dilemmas – they deal in cold, hard facts and as tough as it may sound, cases of negligence need to be addressed not just for the claimant but also for future patients.