Medical negligence law reform: Why doctors shouldn’t be demoralised, much less demonised

The government, the Indian Medical Association (IMA) claims, has agreed to make life for doctors much smoother by making the medical negligence laws more benevolent in favour of the medical community that has been shaking in its boots ever since the Supreme Court two years ago awarded a whopping Rs 11-crore compensation to the NRI Kunal Saha who experienced the mortification of seeing his wife die due to the negligence of a Kolkata hospital. In all fairness to the government though, it hasn’t capitulated to the IMA demand, but only constituted a committee which unfortunately is packed with members from the medical fraternity to the exclusion of consumers. This slant must be corrected. What matters however is not as much the constitution of the committee, as the quality of its recommendations and the eventual changes in our worldview of medical negligence. Every profession is exposed to the hazard of being hauled over coals for negligence, but none more than the medical profession because while a lawyer and chartered accountant can cause financial losses to their clients due to inept handling of the case, a hospital or doctor can end up snuffing out a healthy life. [caption id=“attachment_2309688” align=“alignleft” width=“380”] Representational image. AFP[/caption] Doctors and hospitals thus face the heat of consumer hostility more than anyone and inevitably in the process becoming the favourite whipping boys of everyone. It is for the government to take a nuanced position. In the US, one out of seven doctors faces the grim prospect of incurring the wrath of an irate family — whose anger is further stoked by the ambulance-chasing lawyers. We must not let that happen in India, not because doctors and hospitals need to be mollycoddled, but in the interest of fairness and not frightening away budding doctors. Already the trend is alarming — the number of students seeking admission to MBBS programmes has been dwindling steadily over the years. This is not a healthy trend in a country where the doctor-patient ratio, at 1: 1000, is dangerously low. The country admittedly needs more doctors — lest people are driven into the arms of quacks and impostors, who do greater harm though at a considerably lesser expense to the patient and family. Poor salaries and the frightening prospect of being hauled up for medical negligence are at the heart of this growing disenchantment. The committee tasked with the issue must mull the following points, among others, so that necessary changes in the law can be made: -Post-mortem or autopsy is ordered by the police or magistrate in India, while that power rests with the doctors in the US. The family of the deceased must have the right to ask the hospital to order a post-mortem by an independent hospital should it suspect any abnormality in the death; -Every hospital must put in place a regime of peer review of cases ending in death by fellow doctors from the same hospital and others. Such peer reviews must be carried out in full public view and not in camera; -Courts and consumer forums dealing with medical negligence cases must be compulsorily assisted by an independent committee of doctors and specialists considering the fact that courts are often at their wits’ end plumbing the depths of esoteric health and medical issues; -Standard surgical and hospital protocols must be universalised and those not following them must be penalised heavily for giving rise to the prima facie presumption of negligence in the unfortunate event of death or mishap; -Courts and consumer forums should be guided by the principles of reasonable care and skill. Which means before awarding compensation or otherwise punishing a doctor or hospital, it must find out if the one alleged of being negligent indeed did what another doctor expending reasonable care and skill would have done. If this was the case, the doctor should not be punished. It is true that the distraught family, and of course the patient if reduced to a paraplegic or quadriplegic, would not be as forgiving as those whose kin weren’t involved, but the law must temper anger with reason in the interest of justice. The medical fraternity at the receiving end, is already resorting to defensive medication and diagnostics just to save its skin which makes treatment even more expensive. Insurance is what the doctor has ordered both for the doctor and patient — malpractice insurance cover for the former and health insurance for the latter. That hospitals salivate when an insured patient is wheeled in is another story for another day.