Doctors and Patients;  From Pulse to Justice!

Anoop K. Kaushal, Advocate

Rare were the phenomena of intrigue and disbelief,  agony and vendetta, challenge of the disease and threat of malpractice, so closely heard or read about, say, even  two decades ago, but today it is not only makes news, but  a subject to splash views.

However,  when it comes to adjudication of such disputes, it hardly helps either party, no matter on whose side or with whose version the digital media expresses sympathy first.

Certain general principles that are followed and impact of the existing statutory and procedural provisions may be summarized as under:

1. Law requires a medical practitioner to practice with a minimum acceptable standard of professional skill, neither very high degree, nor very low, subject to specialists being an exception. Each case of alleged malpractice is shrouded and surrounded in its own peculiarities. The first test to which an eventful line of treatment may be put is as to whether (hypothetically), any other prudent practitioner, or at least a majority of them, would have applied the same management. If the answer is `yes’, the scales of justice may stop swaying and tilt slightly towards the therapist.  

2. But that is only the beginning of the scrutiny. Law also requires updating of skills and knowledge in accordance with current practices and sophistication of infrastructure, paramedical and sub-staff, hygiene and sterility. With the progress in technology and advancement in the science of medicine, the research scholars across the globe (and sometimes beyond the globe, in space) endeavour to minimize and mitigate the pain and sufferings of man kind caused by the maladies and pangs of health care. One should keep abreast of all such developments and not keep marking time on shunted practices. Reading periodicals, attending seminars, support from the peers gives a professional the enabling knowledge,  confidence and possible cure for the patient.  

3. Amount of fee charged by the doctors has generally not been   the domain of Courts. Sometimes it is found that a patient, who by choice, or enjoying the cover of a mediclaim insurance policy, get admitted for treatment in an expensive private or corporate hospital, but on not getting the desired relief, starts blaming the heavy bills also, unaware that service charges are not  regulated by law.

4. Consumer Forums do not have, in their constitution, Judges or Members medically qualified.  Majority of  cases involving aggrieved patients or their legal heirs if the patient has expired, are filed under the Consumer Protection Act, 1986. The consumer justice delivery system is based on summary trial, evidence is normally recorded in the shape of affidavits and in some cases, deponents are allowed to be cross-examined. Unless there is clinching evidence against the hospitals, judgment is delivered on probable conclusions. Both sides, therefore, owe a duty towards the courts to maximize and widen the information on record in the shape of medical records and opinions, and obviate possible aftermaths to maintain the sensitivity of the fiduciary relationship between them in the larger interest of the community.  

5. Court fee payable in Consumer Forums is nominal. Unlike the civil courts, where the ad valorem court fee payable for filing a suit for recovery of a certain sum of money may be beyond the financial reach of some  sections of the society,  no court fee was payable while trying consumer disputes from 1986 to 2004. However, Rule 9A of the Consumer Protection Rules, 1987 has fixed certain slabs in the Table , though providing some relief to complainants who are under the Below Poverty Line holding Antyodaya Anna Yojana cards:

6. The general law requires the patient to prove his case, i.e. the onus is on the patient,  and not on the doctor. It creates a paradox. With negligible or no knowledge of medicine, the layman is unable to plead the technical details of the case, thereafter, the burden of proof is so heavily placed upon the complainant, that it becomes, sometimes, virtually impossible to establish a fact as real. Unless the claim against a medical man is supported by medical evidence, mere allegations do not inspire much confidence. Due to fraternal reasons, doctors may not randomly speak against each other.  

7. Only in exceptional cases of prima facie negligence, the onus shifts on the doctor and he has to come out of the circle of obvious guilt. In such cases the dereliction, negligence, deviation from standard practice(s) is so vividly expressed in a self-explanatory manner that the burden to disprove the allegation shifts on the opposite parties. Known as the principle of `res ipsa loquitor’, it gives the benefit of doubt to the patient’s side and it becomes for the doctor to not only justify the treatment given but also that the adverse consequences did no flow from any misconduct on his part.  

8. The mere fact that a patient did not get expected relief need not be a case of negligence. Medicine is called an inexact science. It is well understood that all the doctors have primarily the benefit and recovery of the patient in their mind. Yet, in all cases positive results may not be achieved. That in itself is not a conclusion of negligence. Human body is the biggest mystery on earth. Every person reacts to the pathology of a disease in a special manner,  similarly medicines may have different effect on different patients. At times the stage of diagnosis itself is so belated that the medical science cannot offer any therapeutic relief but can give only palliative solutions, i.e. minimize the agony and suffering while inching towards an inevitable end, as in terminally ill cases. Sometimes, the patient himself is so impatient that he does not continue under the custody of one establishment and rather abandons treatment in haste. Thus having `Left Against Medical Advice’ (LAMA), thereafter, under normal conditions he cannot shift the blame. Similarly, after discharge, some patients or attendants are so reckless that they do not take the follow up advise seriously and end up in much deeper and avoidable complications. Such contributory negligence also acts as a good defense to meet an action for malpractice claim.  

9. Standard Texts on a subject are acceptable as evidence. Universally accepted practices are highlighted in authorities, by the well known masters in the field. These books not only provide facts about the pathology i.e. the nature of the disease, the prognosis i.e. possible path of recovery, the management i.e. the variety of treatment options available, the morbidity i.e. extent of damage involved, the mortality i.e. whether the results are fatal,  but also the risks involved, known complications, contraindications, and a considerable level of logistic support of trends or projections connected with the previous case histories. Diagrams, graphs, pictures of the affected parts, radiographs etc. make things much more comprehensible.  

10. Medical testimony remains a precondition for any judgment to follow. Sometimes even the standard texts may offer divergent opinions and there may be conflicting schools of thought on a subject. Matters can then only be resolved by requesting or summoning an expert in the given branch of medicine to explain the entire matrix  of the case in hand. Complete records can also be sent to well known faculties for their version.

11. To initiate criminal prosecution for professional malpractice, report from a medico-legal Board is envisaged. The most unfortunate consequence  that  a patient may be visited is death while still under treatment. The attendants and legal heirs, besides the well wishers take it for granted that it was occasioned by clinical lapse. Not necessarily. The Hon’ble Supreme Court of India has held:“  To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.  The hazardtaken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India.  So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.  A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.  The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation.  A doctor accused of rashness or negligence, may not be arrested in a routine  manner (simply because a charge has been levelled against him).  Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” Appeal (Crl.)  144-145 of 2004 (Jacob Mathew v. State of Punjab & Anr. DATE OF JUDGMENT: 05/08/2005