In the recent times, professions are developing a tenancy to forget that the self-regulation which Is at the heart of their profession is a privilege and not a right and a profession obtains this privilege In return for an implicit contract with society to provide good competent and accountable service to the public. The self-regulator standards in the profession have shown a decline and this can be attributed to the overwhelming Impact of commercialization of the sector. There are reports against doctors of exploitative medical practices, misuse of diagnostic procedures, brokering deals for sale of human organs, etc. It cannot be denied that black sheep have entered the profession and that the profession has been unable to isolate them effectively. Two basic propositions laid down in law regarding liability for negligence are: firstly, "Breach of Duty" to care and secondly, standard of care, i.e. the practitioner must bring to his task a reasonable degree of skill, knowledge and exercise a reasonable degree of care with caution. Supreme Court has made necessary guidelines for protection in order to secure life and health of individuals.
Mr. Leonhardt’s article in The New York times (“A System Breeding More Waste,” by David Leonhardt (Economic Scene column, Sept. 23):
“It is a good-faith effort to discuss both sides of an emotional issue. It acknowledges the fact that a majority of wrongfully injured patients never seek compensation. That means that culpable doctors get away with medical negligence.”
Under our system of justice no doctor is held to account for a “mistake,” but only for falling below the established standard of reasonable medical care — that is, being negligent.
Some believe that the most effective reform would be a cap on damages — an artificial limit on negligently injured patients’ compensation. No state that has imposed such limits, to my knowledge, has seen a reduction in medical negligence or even a meaningful reduction in doctors’ malpractice insurance premiums.
Saying to a child or any patient who, because of negligent medical care, sustains permanent brain damage that his or her inability to have a normal life should be “fairly” compensated with $250,000 or $500,000 (for noneconomic damages) reduces medical negligence to a determinable cost of doing business for insurance companies and negligent doctors. Such “reform” is unfair to patients.
In my personal opinion that David Leonhardt did a fairly good job of reviewing some of the statistics in the debate about including medical liability reform in pending health care legislation. But I’d like to add two salient points.
1. Though Harvard School of Public Health researchers set out to prove in a 2006 study that medical malpractice litigation really isn’t a problem, their integrity compelled them to publish the pesky fact that about 40 percent of malpractice lawsuits filed each year in America are “groundless.”
Also relevant to the discussion is a somewhat static rate of medical errors in the United States during the past several decades, excluding considerable improvement within the field of anesthesiology.
2. We should always seek further reduction of such errors. But so long as medicine is practiced by imperfect human beings, errors will never be eliminated entirely — no matter how many groundless lawsuits trial lawyers impose on our health care system.
It is estimated that 98,000 people die every year in the United States because of mistakes committed by medical professionals
1. One can well imagine the figures in India. However, the law does not aim to punish all acts of a doctor that caused injury to a patient. It is concerned only with negligent acts. Medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful practitioner would have committed. What is expected of a medical practitioner is 'reasonably skilful behaviour' adopting the 'ordinary skills' and practices of the profession with 'ordinary care'
2. There is, however, room for ambiguity, and judicial interpretation as what is 'reasonable' and 'ordinary' is a question of fact. Essentially, doctors are generally bound to exercise an ordinary degree of care and not the highest possible degree of care. If a medical practitioner has taken reasonable care, then he cannot be held liable. A mere difference in opinion is not a ground for fastening liability on doctor
3. Doctors' duties to their patients are clear. They must decide whether or not to undertake the case; they must decide what treatment to give, and they must take care in the administration of that treatment
4. A breach of any of these duties gives the patient a right to action for negligence. Liability under the Consumer Protection Act
In 1995, the Supreme Court decision in Indian Medical Association v VP Shantha brought the medical profession within the ambit of a 'service' as defined in the Consumer Protection Act, 1986
5. This defined the relationship between patients and medical professionals as contractual. Patients who had sustained injuries in the course of treatment could now sue doctors in 'procedure-free' consumer protection courts for compensation.
The Court held that even though services rendered by medical practitioners are of a personal nature they cannot be treated as contracts of personal service (which are excluded from the Consumer Protection Act). They are contracts for service, under which a doctor too can be sued in Consumer Protection Courts.
A 'contract for service' implies a contract whereby one party undertakes to render services (such as professional or technical services) to another, in which the service provider is not subjected to a detailed direction and control. The provider exercises professional or technical skill and uses his or her own knowledge and discretion. A 'contract of service' implies a relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. The 'contract of service' is beyond the ambit of the consumer Protection Act, 1986, under Section 2(1)(o) of the Act.
The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients' charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act.
The decision in Indian Medical Association Vs. V.P. Shantha and Others is very historic. The NCDRC’s order did not accept the claim of medical professionals who argued that the doctor-patient relationship is similar to master – servant relationship, which is a contract of personal service that should be exempted from CPA. But the NCDRC’s order decreed that the doctor – patient relationship is a contract for personal service and it is not master – servant relationship. It is also said that the doctor is an independent contractor and the doctor, like the servant, is hired to perform a specific task. However, the master or principal (the hirer) is allowed to direct only what is to be done, and done, and when. The ‘how’ is left up to the specific discretion of the independent contractor
(doctor). So, the doctor-patient relationship is a contract for personal service and as such, cannot be excluded from CPA.
Some very alarming statistics regarding the ever increasing problem of medical malpractice.
There is a very good reason that they call lawyers ambulance chasers. The majority of them specialize in what is known as medical malpractice suits. The rate at which these suits are increasing each year is staggering. To get a good understanding of just how serious this problem actually is, we need to look at some numbers.
Of all the malpractice trials in the United States last year, nearly 50% of them were against surgeons and other doctors representing only 75 of the largest counties in the United States. This is according to the Bureau of Justice Statistics, which is a very good source. This shows that the main problem of these suits is in the most densely populated areas of the country which is where the most income is generated. This can't be a coincidence that the more money there is to be made from these suits the more lawsuits there will be.
Another 33% of the malpractice trials in the United States last year was against non surgical physicians in the 75 largest counties in the country. Adding these two numbers together you get 83% of all medical malpractice suits in the United States last year was against only 75 counties. There are literally thousands of counties in the United States.
Of all the cases that went to trial only 27% of them were won by the plaintiffs in these 75 counties. This is a large indication that most of these malpractice suits are not legit, otherwise there would be more of these cases won.
Close to 19,000 medical malpractice payment reports were made in the US last year according to the Annual Report, National Practitioner Data Bank, US DHHS. This is an absolutely staggering number.
It is estimated that about 25% of all the doctors in the United States get sued on an annual basis. This means that if you are a doctor, especially if you are a surgeon, you have a one in four chance of being hit with a lawsuit each year you are in practice. Makes you wonder why anyone would want to be a doctor in this country.
It is also estimated that between 50 and 65% of all doctors in the United States are sued at least once in their career. That gives you less than a 50% chance of getting through your career without an incident. Now this percentage of suing doctor for Medical negligence in India also increasing, earlier it was 5% now it has increased to 10%.
What is even more staggering is that of all the malpractice payment reports made world wide, over 80% of those payments were made by United States doctors with the whole rest of the world accounting for just 20% of all payments made for malpractice.
Even interns are not immune from this problem as over 1500 malpractice suits were filed against interns last year alone in 2008 in U.S.A.
There is no question that these statistics point to an alarming and growing problem in the India compare to United States. Unless measures are taken to prevent fraudulent lawsuits, which many of these are, the problem is only going to get worse.
Recent Judgement of 15 May 2009, of Nizam’s Institute of Medical Sciences in which set a new benchmark for damages in a case of medical negligence, the Supreme Court (SC) has asked a Hyderabad hospital to pay Rs1 crore compensation to a Bangalore-based software engineer.
The judgement could also see more such cases—which are usually settled between the parties—reaching the courts.
Lawyers said the Rs1 crore compensation is the highest ever awarded in a case of medical negligence in India and added that the judgement could define the compensation to be paid by errant hospitals and doctors in similar cases.
The apex court’s verdict could also see a rush by doctors and hospitals for insurance cover.
On Thursday, justice H.S. Bedi delivered the verdict and asked Nizam’s Institute of Medical Sciences (Nims) to pay Rs1 crore to Prashant S. Dhananka as compensation, enhancing the penalty awarded earlier by the National Consumer Disputes Redressal Commission (NCDRC).
The court’s ruling also sheds light on the civil liability of doctors, said Singh, who added that the Supreme Court had already set norms for criminal liability of errant doctors and hospitals.
Those norms, however, set through the judgement in the 2005 case Jacob Matthew vs Punjab, are stringent and prescribe a very high standard of proof. Singh said that this favoured doctors.
“Though previous cases talked about criminal liability, the courts left the question of compensation as civil liability open. Now, by awarding such a high amount, there is a modicum of relief for the patients. This has reinstalled a balance between the rights of doctors and patients.”
Healthcare industry executives admit that the judgement would make doctors more careful. Vishal Bali, chief executive of Wockhardt Hospitals, and Dr Parvez Ahmed, CEO and managing director of Max Healthcare, said that the judgement is a “wake up call” to the medical industry.
If you think you might have been - or are currently - a victim of medical negligence, it’s important that you seek advice from a dedicated professional immediately. You can get medical negligence help, advice or representation, whether your medical concerns are with the NHS or within the private medical sector. A dedicated medical negligence solicitor can help determine whether your case qualifies - and if it does, he or she can help you gain the compensation you deserve.
It may be too early to tell if criminal prosecution of health care professionals for medical acts represents a new legal threat to health care for the coming decade. The fear emerging from these cases is that the general public may grow to expect criminal charges should follow every bad outcome or medical misadventure. Before this happens, those making prosecutorial decisions should keep two things in mind.
First, emergency medicine is inherently risky business. Emergency care is frequently delivered through understaffed, overcrowded, antiquated facilities straining to accommodate the nation's sickest, and impoverished patients. Second, emergency patients are frequently gravely ill. Bad outcomes do not necessarily mean that care was negligent. When mistakes do happen, health care providers are not necessarily criminally at fault. Given the nature of the work and its complexity, physicians face a difficult enough task without having to worry about the spectre of the criminal prosecutor-waiting to reduce to a charge sheet honest mistakes of well-intentioned medical professionals.
One way to reduce this treat is to draft legislation reserving criminal prosecution for acts possessing the gross, wanton, and deliberate misconduct, with an accompanying mens rea, that truly deserves punishment. Another is for regulatory agencies and peer review boards to be more proactive in uncovering negligent practices and weeding out incompetent physicians. Only when these mechanisms are exhausted or when the negligent act amounts to more than human mistake should criminal sanctions be sought.
Criminal sanctions against health care personnel should be an extraordinarily rare event in clinical medicine. Although cases are sparse, the number of medical professionals facing criminal prosecution is increasing. Clearly, the time to address this problem is now. Complacency might be all it takes to transform aberrant behavior into common occurrence.
One thing I observed , the cases which are filed in India’s different courts for medical negligence, 30% are false cases to extract money from a wealthy doctor due to which , genuine cases are seen in suspicious manner. So it is a growing serious problem in which , cordial relations between patients and doctors can play an important role.
One such case on hand is that a patient was admitted with serious complications and in that the patient is in need of Blood Transfusion and on the demand placed by the Doctor to an authorized Blood Bank, the Blood Bank Supplied Blood and with that the Blood was transfused to the patient, in that a complaint of medical Negligence is filed as against the Doctor after 15 years for compensation of Rs 25,00,000 with an allegation that the Doctor Transfused Blood to the patient with out screening and due to the reason the patient is affected with HIV. Now the case is pending decision before the State Commission Now the question is whether the doctor would go for screening Blood or go for saving the life of the patient. Here is the question that if the Blood was not transfused intime, the patient ought to have died 15years before and he would not have been alive for filing this complaint. OR the patients relatives must have filed a complaint for Medical Negligence against the Doctors before 15 years for not transfusing Blood intime to save the life of the patient . Now the question is whether the doctor is bound to chose one of the complaint of Medical Negilgence. In the event of allowing the stand of te complainant , there is no safeguard for the doctors and no doctor would ever come forward for doing any operation of serious nature and save the life of any patient. In that event as a normal prudent man,the doctors would lke to only avoid such admissions of patient. We will have to wait and watch for a Judgement in the above matter.
Medical negligence is a serious problem, and one that should never be overlooked.
Recent killing of Dr.Sethullakshmi Civil Surgeon by the R Mahesh an Auto Driver in Chennai has shaken the patient and Doctor relationship. Doctors are not God. i am very sorrey for this incident of killing happened in Chennai City. This would have been avoided if Police would have taken complaint of Doctor seriously. They are trying their best if it is within their Limit. But this profession has become much more professional because Specialist Private Doctors fees are so high that a normal earning member can not even think to go to them and some How they rushed to Specialist doctors, where it becomes too late.
I saw in News paper One Doctor gives a reason for such type incident Non availability of proper referral system is not there from Doctors to specialist. People directly goes to specialist Doctors. I do not agree with this.
I have visited Number of Doctors and hospital for My research, story is entirely different.
There should be safeguard for both Doctors and patient. Doctors wants to serve people with philosphy of serving the people in this Noble profession. When to become a Doctor itself has become business for Private Universities and private colleges, May be any guideline of Government you can not get admission without paying donation and donation also very huge qunatity for a Normal men . They are paying 15 Lakh to 25 Lakh and to become MD they are paying up to 01 Crore.So many sting operations done by Journalist by putting their life in danger and put reports in their News papers and T.V Channel. But action taken against any college or institution . Because Those running these colleges and institutions are themself Politician. A politician who is not Matriculate also can open a college or Deemed University , Our system has to be Changed, and it is need of hour.
In our India Suicide rate is much more among them Doctors are more. Government should look in to matter and should find out the reasons behind this.
Thanks
No comments:
Post a Comment