The Consumer Protection Act, 1986, is one such legislation that covered ‘medical service' also, whether rendered by a medical practitioner or hospital.
An evolving society has changing needs and expectations and this generates new laws.
As a consequence of this, the nature and quality of relationship between the doctor and the patient has undergone a sea change. This book, authored by a doctor, provides a deep insight into the changed scenario, in all its varied dimensions, and the pluses and minuses for the medical men as well as the patients in the light of the experience since the Act came into force, particularly after the Supreme Court's 1995 landmark judgment in Indian Medical Association v. V.P. Santha.
Every patient has a right to proper medical care and the right to choose, or refuse, treatment. To the extent that the treating doctor is a ‘service provider' — and the patient a ‘hirer of service' — as defined by the Act, he is rendered liable for any deficiency or negligence, which could, depending on the circumstances of a given case, mean a line of treatment that is either wrong or not compatible with the accepted medical standards. Failure to act in accordance with the medical standards in vogue and failure to exercise due diligence and care are generally deemed to constitute ‘medical negligence.' As a rule, the onus of establishing that there has been medical negligence or deficiency rests with the patient. However, the doctrine of res ipsa loquitur is invoked where the deficiency/negligence is most glaring or obvious and the burden, in such cases, shifts to the doctor concerned for proving his innocence.
If the legislation did prove to be a powerful tool in the hands of the victims of unscrupulous and unqualified or ill-trained medical service providers, it also resulted in the medical professionals and hospital managements getting apprehensive of being dragged into unnecessary, vexatious, or even malicious, litigation. In fact, there have been cases of the law being abused for extracting money from doctors.
Koley goes on to suggest measures for providing a safe environment for doctors to pursue their profession without exposing themselves to the risk of being put through tortuous litigation for genuine errors of commission and omission in the course of their practice. To a large extent, the risk of litigation could be mitigated by employing qualified staff, taking the services of professionals in risk management and getting people with good communication skills to interact with patients.
A proper documentation of the case history and the line of treatment and a meticulous recording of the positive and negative findings in the case sheets are a must. Most importantly, it is absolutely essential to obtain the patient's consent in a legally valid format for all procedures done.
Fear of litigation has driven the medical practitioners to play it safe. And the result is what has come to be known as ‘defensive medicine', which consists in adopting procedures that are required not so much for the benefit of the patient as for the doctor to safeguard himself (or herself) against the risk of litigation. This inevitably has led to the patient going through unwanted tests and procedures and incurring huge expenditure unnecessarily. Also, the doctors tend to avoid doing risky procedures. Only when both the doctor and the patient follow the necessary guidelines and adhere to the rules of ethics can society move forward on the path of development.
In providing a perceptive analysis of the case laws relating to the prerogatives and responsibilities of the medical professionals and the various aspects of the patient's rights, Koley has made a useful contribution to this expanding area of law.
MEDICAL NEGLIGENCE AND THE LAW IN INDIA - Duties, Responsibilities, Rights: Tapas Kumar Koley; Oxford University Press, YMCA Library Building, Jai Singh Road, New Delhi-110001. Rs. 950.
Keywords: Medical ethics