IS IT TIME TO PACK OUR BAGS?? (Part I)

The doctors today never had the opportunity to have witnessed the “golden days” of medicine, when a patient operated erroneously would still touch the surgeon’s feet on discharge. Since then situation has come when one in 4 doctors have faced allegations of medical negligence in courts and consumer forum. 88% MBBS and specialist doctors have faced anger or violence of patients or relatives in their professional career at least once.

Over the years doctors have been complaining, griping and sulking over the problems facing them. They feel hemmed from all sides, victimized and perceived as being soft targets. Many doctors, especially youngsters, seeing their previous generation unhappy with the state of affairs, have started leaving clinical practice. Some move into administration, others business, some go abroad, some simply retire. They cannot be blame because India seems to be at war with its doctors for the past 2 decades, and the doctors feel defeated. The doctors do not have supportive work environment, professional autonomy or fair pay.

The first blow was when medical profession was covered under Consumer Protection Act (CPA). Doctors were equated with traders, barbers, bankers, building contractors, insurance companies, transport, suppliers of electricity and the like. Unfortunately now this has extended to the level where courts are deciding on what a doctor is to do in a complex medical situation. The honorable Supreme Court opines that if during a surgery it is found that an additional procedure is required, it should not be done even with the consent of the relatives. Patient should instead be allowed to come out of anesthesia, give consent for the second procedure and then re-operated. Professional autonomy of doctors has been subjugated to judicial and administrative control and interference.

Under CPA, there is no cap on the amount of compensation which can be claimed or awarded to the petitioner. It is the earning capacity of and hence, the loss to the consumer which is the deciding factor. If the doctors of some top-notch businessman of the country start being sued after their death and a claim of Rs. 2,000 crore is filed, though sounding absurd, but legally there is no bar on such astronomical sums being claimed even though the sum maybe equal to the GDP of some nations. Doctors and hospitals do not charge patients on basis of the patient’s earning capacity. No doctor can afford to pay such huge claims, however flourishing his practice maybe. It would be an end-of-career kind of judgment, if not end of life, with doctor having no other option but to of commit suicide.

Under Motor Accident Claims a small car, like a Maruti 800, is insured for a minimal premium, say Rs. 3500. If the same business tycoon had died because of negligence of the driver of this car, the claim under Motor Accident Claims Tribunal (MACT) would be calculated as per persons income, amounting to, maybe Rs. 2,000 crore. The insurance company is bound to pay whatever is awarded even though premium paid by the driver is a fixed Rs 3500. When compared with Professional Indemnity insurance of doctors, a premium for a cover of Rs. 10 lakhs is Rs. 2,500, meaning the premium for a cover of Rs. 2,000 crore would be Rs. 50,00,000 per annum. If a doctor takes professional indemnity insurance of Rs. 2,000 crore and pays this premium because he might one day be compelled to treat the likes of some member of the topmost business family, his consultation fee needs to be at least Rs 20,000 per consultation!!!

While there is no bar on the amount of compensation which can be claimed under CPA, there is a limit of a fine of Rs 10,000 fine which can be awarded against the petitioner for a frivolous complaint.

CPA was brought with noble intentions of safeguarding the interests of consumers. Traders selling defective TV sets, insurance companies not paying their customers their due, traders and other service providers were envisaged as targets under CPA. Medical services also started being covered under CPA in 1995 by the honorable Supreme Court. That time only outright cases of negligence like amputation of the wrong limb were decided to be covered under CPA.

Advocates, architects and other professionals were similarly covered under definition of service providers as defined in CPA. Subsequently, advocates have obtained a stay from the honorable Supreme Court on their inclusion under CPA as service providers. Meanwhile, doctors are being dragged deeper and deeper into the quagmire of CPA even in cases where complicated technical issues requiring expert opinion are concerned.

CPA has wrecked havoc on the doctor-patient relationship.

Doctor’s actions are always done in good faith but there is no protection under law given to them as is given to other professions like judiciary and quasi-judicial bodies. A bad decision by a doctor makes him accountable and liable to pay damages, but a bad decision severely criticized by a higher court in appeal does not impose any penalty on the lower court. A bad decision of a court equally causes financial loss, physical and emotional distress to the party concerned. Doctors specially tend to work long and hard to develop a reputation and a single adverse judgment lapped up in the yellow press and prominently reported in headlines destroys their reputation built over decades. Even if after 10 years the decision is reversed, the irreparable loss which has occurred to the doctor cannot be compensated.