malpractice or poor judgement
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Malpractice or Poor Judgement? The practice of medicine has never
claimed to be an exact science. In fact, it is very much a hit-and-miss
situation. Taking into account these above factors, India seems to be on
a destructive trend regarding their level of health care. Ever since private
medical services fell under the Consumer Protection Act (COPRA) in April
1993, the number of malpractice suits filed against doctors has begun to
soar. For example, in Kerala, approximately 1800 cases (15% of the total
number of cases) have been filed. As Dr. Dipak Banerjee of the Indian
Medical Association puts it: "It's degenerating into a kind of witch-hunt."
For years the community of doctors across India was immune to
charges of malpractice, but the tide has begun to turn. Doctors are now
having to dish out larger sums of money in order to insure themselves
adequately. Insurance companies have caught on as well, raising the
price of malpractice insurance on most doctors. For instance, a doctor
who would have had to pay Rs. 125 annually now has to pay up to Rs.
1500. These costs will only be passed along to the patients in the long
run, and the condition is only going to worsen. Take for example the
United States, where surgeons annually pay an average of $75,000 on
insurance premiums. On top of these premiums, doctors who practice
very defensively add as much as $21 billion US to the health care bill
every year. Twenty percent of the tests prescribed by doctors were not
necessary, but they are the result of defensive practising by doctors who
do not want to be held liable. This condition, already appearing in
India, could become the downfall of their present health care industry.
Doctors are being forced to "look upon every patient as a potential
litigant." There is likely going to be a tremendous rise in the cost of
treatment as doctors begin this new wave of defensive practising, in
which a series of expensive tests are carried out before any diagnosis is
made. Quoting Dr. Chockalingam (Chairman of the Indian Chapter of
Royal College of Surgeons), "If a patient comes with a headache we may
now order a CT scan lest we miss a brain tumour We now have to see
whether a patient comes alone for consultation or brings along his
advocate." This problem could lead, and has led, to many others.
Doctors may shun complicated cases where risk is high due to the
delicate nature of the procedure, so as not to be hauled to court. This
refusal to treat patients has already taken its toll on those involved in
motor vehicle accidents, whose treatments are often very tedious. This
brings us to the fulcrum of the issue: trying to hold doctors accountable
for their actions. Is poor service better than no service at all? Is the case
criminal negligence - or just a genuine error in judgement? This entire
matter revolves around a central point in the Consumer Protection Act
section 2 (1) (o) which declares "services means service of any
description which is made available to potential users It does not
include rendering of any service free of charge or under a contract of
personal service." This statement clears government-run hospitals and
doctors of any wrong-doing, due to the fact that much of their service is
rendered free of charge. However, this does not clear the private sector
hospitals which now perform approximately 70% of all out-patient
services. Even still, the main problem with COPRA is its tendency to
make doctors solely responsible for poor treatment. L. M. Kapur,
president of the Association of Medical Consultants, describes the
situation: "Doctors are just 25 per cent of the input for treatment. There
are para-medical staff, blood banks, nurses, ward boys, poor
infrastructure facilities, equipment and even patients themselves that
could be responsible for poor results. Yet we are becoming the
scapegoats for everybody's woes." Another major problem is that
this prestigious profession is being piled in with a whole range of other
services. This has led to speedy trials in consumer courts, whose panels
are comprised of people who do not have the knowledge to differentiate
between genuine malpractice and errors in judgement. As well,
consumer courts advocate a "Yes/No" approach, while medicine has
many "grey areas" for treatment. What really irritates doctors is the fact
that under COPRA, they are treated like other services such as those
which provide entertainment and food. However, the services that they
supply should be more than proof that an alternative system of review of
medical conduct should be developed. Before the medical services fell
under COPRA, patients had two major routes by which to file claims of
malpractice: The Medical Council of India, and courts of law. Patients
did not prefer to go to courts of law due to their lengthy trials and high
costs. The Medical Council had the power to suspend doctors for
negligent acts. However, because the Council was comprised mainly of
doctors, they were very hesitant to discipline their colleagues. Also, the
Council did not have the power to compensate the "victims" of
malpractice. This is a serious problem that should be dealt with
immediately. Before the situation gets out of hand, and treatment fees go
through the roof, the government should appoint a new panel specifically
for the review of litigation suits against doctors in private practices. The
panel should be composed of the following: doctors, medical consultants,
lawyers and upstanding members of the community. This type of panel
would lead to less bias towards both the patient and the doctor. Allowing
the present situation to continue will only lead to the eventual destruction
of the Indian health care system.References: India Today, June 1993, p.
95 - 100
