Ethical values of Professionals collapse
miserably
Medical Council of India condemns Professional Conduct
of doctors. In a case of Harnek Singh vs
Gurmit Singh CA 4126-4127/2022 | 18 May 2022 Bench comprising Justices UU
Lalit, S. Ravindra Bhat and PS Narasimha, Supreme Court observed that the
findings of the report of Medical Council of India on professional conduct
of doctors are relevant while considering medical negligence compensation
claims. Court also observed that in the proceedings for damages due to
professional negligence, the question of intention does not arise.
In this case, the
complainants before the State Consumer Disputes Redressal Commission prayed for
monetary compensation quantified at Rs. 62, 85,160 from Surgeons, Doctors and
Hospital for negligence and deficiency of services. SCDRC partly allowed the
complaint and two among the opposite parties were directed to pay Rs. 15,
44,000 jointly and severally and Rs. 10,000 as costs. The National Consumer
Disputes Redressal Commission allowed the appeal of these opposite parties and
set aside the order of the SCDRC holding that negligence was not proved by the
complainants
While the proceedings
were pending before the SCDRC, the complainants had also made a complaint to
the Punjab State Medical Council against the professional misconduct of the
doctors/surgeons/hospitals. As this complaint got summarily disposed of, they
filed appeals before Medical Council of India. The Ethics Committee of MCI held
one doctor medically negligent and issued a strict warning to be more careful
during the procedure and to be more diligent in treating and monitoring his
patients during and after the operation.
Before
the Apex Court in appeal, the complainants/appellants submitted that NCDRC gave
its decision without referring to the MCI finding. Referring to the
contents in the report of MCI, the bench observed that the opinion and findings
of the MCI regarding the professional conduct of Respondent have great
relevance. It observed:
The
above-referred findings of the MCI on the conduct of Respondent 1 leave no
doubt in our mind that this is certainly a case of medical negligence leading
to deficiency in his services... We are of the opinion that the NCDRC has
committed an error in reversing the findings of the SCDRC and not adverting to
the evidence on record including the report of the MCI. The decision of the
NCDRC deserves to be set aside and we hold that the complainants have made out
a case of medical negligence against Respondents 1 and 2 and are entitled to
seek compensation on the ground of deficiency of service.
The court therefore directed the Respondents to pay to
the complainants a total amount of Rs. 25, 00,000 with interest @ 6% per annum
from the date of SCDRC order as compensation
Doctors
in tuning with Insurance for rejecting genuine claims
During the last two decades,
it has been observed that almost each and every mediclaim has been turned down
on one or the other pretext by the insurance companies except a few in which
claimant manages to get the claim by offering bribe to the dealing man The
claim is invariably rejected on the plea of pre-existing disease and for
concealment of fact at the time of filling up the prescribed form. This
has also been seen by the consumer forums that the questionnaires of the said
form are framed in such a manner that there cannot be any straight answer is
yes or no whereas the instructions are to reply in yes or no only. At times
such forms are filled up by the agents of the insurance company who aims at
bringing more and more cases/clients and they assure the insured to relax for
everything and thousands of people are made to believe that they are totally
secured once they have opted for mediclaim policy. In this process, whatever
information has been given by the insurer, at the time of settling the
claim is said to be untrue by the insurance company and claim is rejected for
giving wrong statement and concealment of material fact. The claim made against
whatever disease is said to be pre-existing at the time of giving information
through form filled If there is cough and cold at any point of time ,it is
considered lungs problem pre-existing judging it the symptoms for the
said disease Uneasiness in breathing for any simple
reason becomes heart ailment . If hospital writes in
discharge summery patient having any problem for the last one or two years, any
simple pain is co-related with some major disease without having any records of
tests and diagnosis etc. Generally patient at the time of admission is asked
several questions about his health which he replies in casual manner and that
statement is recorded in the discharge summery by the hospital .This is
actually the statement of the patient and not the findings of the hospital on
the bases of tests .The real findings are the diagnosis made by the doctors and
medicines prescribed Insurance companies made use of such statements in their
favour to reject the genuine claims Apex court took a note of this and found
consumers deprived of their claims, hence held in its judgement-such summery
from the hospital cannot be treated as cogent proof for declaring the disease
pre –existing unless proved by medical tests or medicines taken in past for the
said disease having knowledge of the same. Supreme Court in the matter between
Asha Rani Goal Vs National Insurance Company in 2002 categorically denied to
admit such statement taken from the patient at the time of admission as an
authentic evidence to the fact of pre-existing disease
However
insurance companies do take medical opinion by the doctors on their panel in
order to know whether any claim case can be treated as case of pre-existing
disease or not and doctors on panel on the bases of their experience in the
field and looking into the case history ,medicines prescribed and also some
investigation from the reliable sources give their opinion Recently it has been
noticed by the consumer forums that doctors on panel with the insurance
companies are going beyond their area of expertise and are giving legal opinion
instead of medical opinion
In
one such case in the matter of Dr Satya Paul Vs. National Insurance Co. Ltd,
claim of the complainant was rejected on the plea of pre-existing disease
attracting provisions of clause 4.3 of the terms of insurance While going
through the terms and conditions of med claim policy, it was the opinion of the
consumer forum that clause 4.3 is applicable in the cases where disease is
pre-existing. Insurance company in the present case all the time referred to
this clause stating that treatment was taken in the first year of the policy
but never mentioned as to how it was pre-existing .Consumer Forum pinpointed
the opinion of doctors on panel of insurance company which court found just not
medical opinion.Dr Batra`s report states as hereunder –
Diagnosis
immature senile cataract, left-right. Mrs Sharma in this case has undergone
cataract surgery within first year of the policy, such treatment is
specifically excluded vide exclusion clause 4.3 of the policy Hence this claim
is not admissible as per the terms of the
policy.
Further Dr Rajesh
Chhabra has also given medical opinion as under –
This
case in which patient was admitted in the hospital with IMSC for phacoemulsification
was justified for hospitalization But since policy of the claimant is in the
first year ,so according to the terms and conditions of medi-claim policy, this
comes under exclusion clause ,so case should be closed as no claim. All other
papers in the file are in order and are of diagnosed disease.
Both
the doctors have nowhere said that this disease was pre-existing They have not
mentioned about any previous history or any report from any doctor, from any
hospital or referred to any medicines taken by the patient for the said disease
before undergoing for the operation of the diagnosed disease Without
establishing the disease pre-existing, this clause is not applicable at all.
Apart from this, it
is noted by the consumer forum that the doctors on panel are instead of giving
medical opinion, are giving legal interpretation to the clauses which is
actually to be done by the department concerned. This is the quasi-judiciary
function to be done by either the legal department or personnel and
administrative department and doctors on panel are in no way authorized to
touch this area. It is the company to see whether the claim is tenable or not
while interpreting the rules. Here it is seen that doctors are making legal
opinions and interpreting the terms and taking the decisions also which doctors
on panel are not supposed to do. Doctors are to give their professional/medical
opinion about the disease, about the diagnosis, about the medicines taken,
about the history of the ailment on the bases of their experience in the
medical line both the doctors have done nothing on their part and virtually
decided the claim not tenable though they are no authority to do so. It was the
observation of the forum that the words are put into their mouth and they
have tried to -- the decision by a professional opinion. A suggestion has been
made for the doctors on panel by the Consumer forum to limit their opinion
to their role and maintain the grace of the noble profession of doctors
-
DR PREM LATA
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