CONSUMER FEARS TO FIGHT AGAINST DOCTORS

(Doctors are the influential persons of the society)

Here is the news of the day -The Maharashtra Association of Resident Doctors (MARD) called an indefinite strike on 20^th May, demanding increased security in hospitals, after two doctors, including a woman doctor, were allegedly beaten up by a patient's relatives. Zaida Sanaullah Sheikh (45), a resident of Mumbra, died who was being treated for a gall bladder ailment. At the state-run JJ Hospital and doctors were alleged responsible for the same

The question here arises as to what way  the consumers gain with this type of action and taking law of the land in hands .Instead, they weaken their  case before the court of law by giving opportunity  to the wrong doers to temper the documents well before time. It’s high time now to realize and understand that after such high voltage drama, it is the law which has to ultimately deal with the things and we need to know the law for every situation. When we make hue and cry over an incident that some hospital refused to admit a pregnant women, we need to understand first what the law says on the issue .We are in no way in mood to favour erring doctors but surely warn the consumer to deal seriously with their case.    

TheApex  Court had an occasion to go into this question in the case of Dr. Laxman Balkrishan Joshi v. Dr. Trimbak Bapu Godbole and Anr., AIR 1969 SC 128.In this context, with reference to the duties of the doctors to the patient, this Court, in appeal, observed as follows:

“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.”

Its ample clear from the above that doctor has to take care in deciding whether to undertake the case and that care involves the facts whether doctor or nursing home or hospital has proper infrastructure or expert doctor or proper arrangement for treatment of  the particular ailment. In such situation admitting or refusing to admit the patient depends on the above factors, hence doctor not guilty if takes appropriate decision.

Doctors do not give opinion against fellow doctor; fears consumer

  Its true that a medical man only   can spell out what went wrong while treating the patient, hence expert opinion is an important document .But is not the patient who is always asked to bring expert opinion It is the redressal agency also who sends papers for expert opinion from Govt Hospitals and even from medical associations.A committee is constituted by the hospital with specialists of the particular area and they go through the treating record and make observations with their opinion. At times, medical association have also given opinion unfavorable to their fellow doctors and terminated their license for several weeks or months. And where consumer and opposite parties both have arranged expert opinion, court on its own has asked for third opinion from reliable sources. So, it is the consumer to become more active and help the court by providing relevant papers.  If sequence of facts, medicines prescription and history sheet, discharge summery etc are not available by any reason, no opinion can be made out of half papers and this is also found a big drawback for failure of the case.

 Medical literature when does not help consumer

.There are articles/medical literature referred from various medical journals before the redressal agencies in order to support their act by the doctors.  Some of them are just articles, views, may not be established and recognized practice under the accepted norms under the medical science. Consumer must understand that Consumer forums do scrutinize all the material placed on record and such material may not draw much weitage in compare to established norms

Material facts not revealed by the patient to the doctor

                        This  is also observed that sometimes patient hides certain material facts from the doctor which if known to the doctor ,he could have chosen another method of treatment There is a unique case relevant to be referred here to understand the situation. The case was filed by a retired doctor from defense on behalf of his wife alleging the doctor for negligence while doing plaster surgery on the breast of his wife which was said to be small in size in compare to the other breast .Patient wanted it to be made of equal size and it was just a cosmetic surgery .Surgery was performed by inserting/implanting artificial breast to the short size and both the breasts were made of equal size successfully. After some time complainant complained about pain and irritation which gradually became unbearable. After a lot of discussions, allegation and counter allegation the fact came on the surface that the lady had undergone cancer operation on the breast sometimes ago which made one breast smaller. As per the medical advice, for doing another surgery on the same place, dead tissues are to be revived first by applying suggested medicines and then surgery could be performed. In this case the padding which was stuffed in the breast was not the correct padding under the circumstances as the actual fact of cancer operation was not known to the treating doctor. This was a case fought to the tooth and nail by a person who himself was a doctor and had plenty of literature but failed.

Lacking good drafting fails the case

It is true that engaging advocates is not essential for the consumers but it being a technical area, medical cases require good drafting. For giving full facts in chronological order, good drafting is the first requirement. Unfortunately in our country poor consumers are not in the position to shell out more money after they have lost their battle in fighting with the ailment .More so consumer   think, consumer courts can take care of the things once they have filed the case and they miss  active participation with full datas and documents before the court.

 The other factor is the pre-conceived notion in the mind that once doctor has charged a huge amount and prescribed costly medicines, ailment must get cured irrespective of the fact that they approach the doctor when disease has crept deep into the body. Not only that ,there are many other factors like old age ,patient having high BP problem or diabetes due to which certain medicines cannot be given which could otherwise be more effective. Medical practitioner is not an insurer and is not to be blamed every time something goes wrong in treating the patient as held by the Supreme Court in number of cases.

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Insurance companies in protection of doctors;

 The case Gurudatta Puri Hospital lithantripsy center vs Nusrat [2002] travelled from District Forum in Maddhya Pradesh  wherein Doctors remained absent for defending their case and it was only insurance companies present before the forum to defend the negligence of Doctors as defending parties .The case was decided against Doctors. An appeal was filed by Doctors as well as by insurance companies. before State commission One of the issues before the commission was whether the Insurance Companies should be made party in defense in Doctors medical negligence cases State Commission held ;

“The case can be dealt and decided without the help of insurance companies with the records available with the idea that if insurance companies are brought in the picture the consequences will be adverse for the consumers causing more delay and harassment by two big giants Doctors too may also take the things easy if their responsibility is shared by insurance companies”

National Commission dealt with the  similar case while disposing off two revision petitions from Punjab State commission on different footing though the motive was to safe guard the interest of the consumers only In those two Revision petitions New India Assurance Company Ltd. V/S Hardeep Singh and others  Revision petitions No 2640 AND 2648 Of 2002 arising out of two separate judgments from Punjab State Consumer Dispute Redressal Commission ,the view taken by National Commission was that if insurance companies are barred from making party, they will have a good case to go in appeal on this very ground. Even if they do not go for appeal, there may be another case by Doctors against insurance company for their claim wherein consumer is a sufferer if dragged in their litigation or  not paid in spite of winning the case against the Doctors. National Commission with the intention to help the consumers allowed insurance companies to be impleaded as party in defense but at the same time defined the role of both ,Doctors as well  as Insurance companies and held that doctors are to defend their cases on merit on their own .Insurance companies will be an agency who will tell about the validity of insurance made and its other relevant aspects.i.e admissibility, period of the policy made etc.Any other objections if company has in respect of the policy can also be decided here itself.

This view of National commission was further confirmed by Honorable Supreme Court and now, may it be known to consumers that insurance companies if made party to the case with defendants, it is no more a matter to worry for them as both have to play their own roles and interest of consumer shall be taken care by the consumer protection agencies i.e. Forums and Commission for getting them justice

While dealing with the law lay down on the subject by the National Commission and then confirmed by the Supreme Court in the above case, it will be relevant to look into the background of the situation which had created   concern for the legal lobbies of the country. It was a death case of a young and talented boy of sixteen year old, who died in 1996 due to medical negligence of doctors which came before the National commission for adjudication. The boy was given spinal anesthesia for performing operation whereas such anesthesia is not allowed to the person of this age as per the medical literature available on the subject this wrong application resulted into death of the boy. But no negligence could be proved in this case in 1996 because Insurance companies jumped in to picture for defense of doctors with battery of eminent lawyers and raised number of preliminary objection and father of the boy was forced to compromise ultimately. This was a very unfortunate situation where Insurance companies being party in defense defended the genuine case of the complainant with full force without considering the pains of a father who lost his young son.

It was in this background that The case Gurudatta Puri Hospital lithantripsy center vs Nusrat [2002] was dealt by the supreme court with utmost care and insurance companies are allowed to do their duty to the limited extend and consumers must know the law on the issue

 

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Insurance company when refuses to indemnify negligent doctor

 

Yet another dimension in medical negligence cases. Honorable National Commission gives no relief to erring doctor who was found negligent while treating a patient and insurance company refused to indemnify the doctor who did not bother to inform the insurance company about the negligence case filed against him .

 A complaint was filed by one Mr. Narayan Chandra Saha before a consumer forum in west Bengal against a doctor for negligence and succeeded in it,doctor  was slapped with an amount of Rs 2, 67,750 as compensation by a Consumer forum in west Bengal. He filed an execution petition and after receiving the notice, doctor sent it to the insurance company for making the payment to the complainant as he had taken professional indemnity policy from New India Insurance Co. Insurance company refuses to pay the same as they were not informed by the doctor about the case filed against him, neither they were made party in the case.

Doctor after refusal by the insurance company comes before the consumer forum alleging deficiency in services on the part of insurance company .Consumer forum allowed the complaint. An appeal filed by the Insurance company against the order of consumer forum and State commission reverted the order of consumer forum favoring insurance company. Doctor now filed revision petition before the National commission

National commission in this matter of  Tarunjit Roy(Dr) versus New India Insurance Company went into detail of the case,checked thoroughly the points discussed by the State commission also. National commission is of the view that the clauses referred as terms & conditions specified in the insurance agreement are of vital importance for dealing with the question as to whether insurance company is deficient in services by repudiating the claim of the doctor when the Doctor has taken professional indemnity policy and has paid the premium .Clause 8.1 to 8.3 of the policy require following acts to be done by the insured doctor;

“The insured shall give written notice to the company as soon as reasonably practicable of any claims made against the insured and give all such additional information as the company may require. Every claim, writ, summons or process and all documents related to the events shall be forwarded to the company. Further, company will have right but in no case obligation to participate in the proceedings .Company shall not have any obligation to make payment if insured settles the claim on his own.”

In the present case, insured doctor sent the communication on 17.1.2008 in writing only after the award has been passed against him. No claim, summons or notice was sent to the company neither it was a party to the proceedings which is a clear violation of the terms .By doing so, insured have deprived the company of his right to watch the proceedings in CF case no 39/99 or to know the manner case has been defended by the doctor. Not only this, insured doctor did not file any appeal against the order passed by the forum .It was other OP in the same matter who filed an appeal no 233/A/2005 before the state commission and succeeded. After an appeal is filed no information about the award was given to the company. Further, when execution was filed by the complainant Narayan Chandra, Saha for realizing the awarded amount, insurance company was still kept in dark .Under the above circumstances, insurance is in no way deficient in services if they repudiate the claim at this stage.

 

We now hereby clarify a few things for consumers to understand and Consumers are not to fear any more    –

 

 

Dr Prem Lata

 

 

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