AMRI verdict: India could cease to be a medical tourism destination

By S Murlidharan

The apocalyptic vision of India’s fledgling but promising medical tourism industry painted by Robin Cook in his vastly entertaining novel Foreign Body is most likely to materialise albeit not for the reasons laid out in the novel.

In the novel, an envious US hospital hires miscreants in Indian hospitals to engineer nocturnal deaths of foreigners undergoing bypass and other surgical procedures. It then gets CNN to promptly break the news to the US viewers even as India is fast asleep. The idea is to disenchant US citizens’ idea of visiting India for cheaper medical treatment than vis–vis the US especially in the light of the hugely skewed exchange rate in US dollar’s favor.

While that is in the realm of fantasy, what is real and imminent is hospitals in India are likely to increase their fees considerably especially for treating foreign nationals in the light of the Supreme Court verdict in the Kunal Saha case on 24 October.

The court asked Kolkata’s AMRI Hospital to cough up around Rs 6 crore along with interest of 6 percent per annum reckoned from 1998 that works out to an aggregate of Rs 11 crore to Saha, whose wife died due to inappropriate treatment for skin rashes given by the hospital.

The doctors concerned must thank their stars that they have gotten away with just a slap on the wrist while the court going for the jugular of the hospital.

What should ring alarm bells for Indian medical industry is the Court’s unambiguous enunciation that compensation for medical negligence cannot be straight jacketed in the Indian milieu - if the victims were a US resident, the compensation in such cases must be calculated on the basis of her potential income in the US.

This feature of the verdict is what is going to make Indian hospitals ratchet up their fees from foreign nationals thus considerably neutralising the cost advantage that has hitherto made the country a preferred medical tourist destination.

It is no small mercy that the court rejected the ambitious claim of Rs 9.25 crore towards loss of victim’s future earnings on the ground that the only plausible proof adduced regarding her income at the time of death was $30,000.

The court also rejected the ambitious claim of Rs 31.5 crore towards non-pecuniary damages such as wrenching away of companionship, mental torture etc thus tacitly endorsing the National Consumer Redressal Commission’s apt observation that the petitioner could not be allowed to make a fortune out of a misfortune.

The implications of the verdict, however, should not be seen as relevant only in the context of foreign patients. The apex court has read the riot act to the medical profession and industry - the concept of reasonable care would not be diluted.

Indeed the court has said in so many words that the judgement would send right signals and would have a deterrent effect. In its wake, hospitals and private practitioners are bound to take malpractice insurance seriously much to the joy of insurance companies reeling under losses.

All these spell considerable increase in hospitalisation and other related medical and diagnostic expenses for patients. It would be a poetic justice for the insurance sector - what it earns from the doctors and hospitals may well have to be paid as claims to patients who are insured.

The court, it must be pointed out with due respect, had a convenient whipping boy before it - AMRI hospital. What would it have done had the patient not gone to a hospital with deep pockets or gone to a doctor whose resources were barely enough to keep him going?

Mandatory malpractice insurance could be the answer for future with attendant hike in expenses in store for patients who in turn would be driven to embracing the health insurance model for meeting the hospital expenditure.

The mad rush for medical seats has been on the decline these last couple of years. This trend could well get accentuated in the wake of the verdict. The profession, to be sure, may be noble but things could turn nasty if a doctor is even slightly derelict in his duties.

Worse, he may have to sometimes reap the bitter harvest of his colleagues’ dereliction given the fact that it may not always be possible to apportion blame in an equitable or fair manner.

There are professions galore where the standard of care expected is not as exacting or simply non-existent like with advocates. An advocate might lose a case because of his negligence but he might not lose his shirt.

Like the Medical Council of India, the Bar Council of India is clubby in its approach towards fellow members - don’t take a holier than thou view because tomorrow you yourself may be in the dock.

Americans have addressed this problem by allowing lawyers to charge a percentage of the spoils (read the decreed amount). The Indian law prohibits professionals like CAs and advocates receiving their remuneration that is dependent on the outcome of the case. The outcome-based fee model is a win-win. The lawyer makes serious effort to win his claim and the client does not pay anything if the lawyer loses the case.

Be that as it may, one is apt to wonder in this regard if AMRI could be made to fork out a whopping Rs 11 crore, equally the scamsters in India should be made to disgorge their loot. This aspect may not detain us for the time being though. It would be the subject of discussion in another article.

That medical profession deals with human lives is the main if emotive reason for it bearing the cross when things sour. Surgeons and anesthetists are in fact even more vulnerable to being dragged over coals for negligence due to the very nature of their jobs.

India needs more doctors given the abysmal doctor per thousand ratio - one doctor for 1,700 people which pales before one doctor for 390 people in the US.

We must do everything in our power to improve the lot of doctors so that they do not have to look over their shoulders each time they see a patient. Today they are either deified or demonised.

We must strive for a neutral state. We must find ways to make continuing education a reality and consumer courts less menacing for doctors though cynics may say and rightly that the rot has to be stemmed at the very beginning - the quality of students taken in and the quality of medical colleges is the main cause of the malaise.

It is common knowledge that most of the medical colleges in the private sector are sub-standard and ill-equipped, even without basic medical infrastructure, whose only existential motive is to collect dollops of cash at the time of granting admission.

In the event, doctors are literally and figuratively educated on the job which is dangerous for the patients inasmuch as often they become guinea pigs without their knowing.