Prof. Dr. Ashok R. Patil.
Chair on Consumer Law and Practice,
National Law School of India University, Bengaluru.
Ref. Your letter to Shri Narendra Modi, Hon’ble Prime Minister of India dated 01/07/2019 asking for reinstatement of Healthcare services in the draft Consumer Protection Bill 2019
Greetings from Federation of Associations of Medical Consultants (FAMCI)!
We are an Association of over 11000 Specialist Consultant doctors and around 1500 small and medium sized hospitals/nursing homes across Mumbai and have chapters in Mangalore, Bangalore, Pune, Nashik, Ratnagiri, and Goa. We are a front-line medical organization and represent the medical profession on several Government Expert Committees. We have a vibrant and dedicated medico-legal cell which assists our members in cases of medical litigation and often reaches out to patients as well by means of Alternate Dispute Redressal. Our mission is to network with the various stake-holders and to make a meaningful difference to our health-care delivery system in our country.
At the outset, we would like to state that we appreciate the sentiments expressed in the above letter and share your concern for the protection of patients from the malpractices and acts of gross medical negligence at the hands of hospitals and doctors. There cannot be two views on aggrieved patients being provided avenues of redressal of their grievances against medical negligence.
Date: July 19, 2019.
Notwithstanding this, it will be prudent to consider whether the inclusion of medical services under the purview of the CPA has served its purpose and is it the best way to address the problem.
To begin with, we need to examine the question: Does it stand to reason that a life and death profession whose main objective is to mend dysfunctional human bodies and heal troubled minds, be equated to business and commercial enterprises engaged in buying and selling transactions. Is it justified to compare doctors with traders? Is it not demeaning for both patients and doctors to be brought down to the level of customers (grahaks) and “sellers“? Is it right to treat at par a complaint against a defective TV set manufacturer with a complaint by a patient against adverse or suboptimal outcome of a treatment ? Even as we concede that patients need to have recourse to redressal mechanisms against negligent treatment, do you honestly think that dragging doctors to consumer courts is the right way to do so? Let us examine what the CPA has achieved for aggrieved patients in the 3 decades of its existence.
Yes, some plaintiffs have been awarded compensations, some of them large enough to create a fear psychosis amongst doctors and hospitals. This may be a source of satisfaction for the proponents of the CPA vis-à-vis medical grievances, but this should not be looked at in isolation. At the end of the day, we need to look at the overall scenario and consider the fall-out of this on patient care.
You have stated in your letter that CPA ensures speedy redressal of patient grievances. Let us see how speedy it is. The time frame for the conclusion of cases in the consumer forums was supposed to be 90 days. But the fact of the matter is that the vast majority of cases do not get concluded even in 90 months!! In our experience, a case in a District forum or State Forum takes an average of 5 to 6 years at the least, before it concludes. Cases in the National Forum take far longer and it is not uncommon to get final judgments after 15 to 20 years! We have conclusive data of this. That much for the speedy justice!
What about the cost of obtaining this justice? As per the CPA, a complainant need not hire an advocate to argue his or her case before the Consumer forum. But factually, barring a miniscule minority, all complainants feel the need to appoint an advocate to argue their cases. The average advocates ‘ fees are in the range of 1 lakh rupees or more ,for the duration of the case, which is a minimum of 5 to 6 years in the lower forums, as mentioned earlier. That much for cheap justice!
Having seen how the CPA has served the patient community, let us see what effect it has had on the healthcare providers and the health care system. As a direct consequence of the CPA the following has happened: (achievements of CPA!)
1. Apprehensive of being dragged to a Consumer court , doctors are now per force , prescribing a whole list of medical investigations, not because they are all necessary to arrive at a diagnosis , but to protect themselves and to cover all remote possibilities and to minimize the possibility of getting implicated by allegations of negligence subsequently.
2. For similar reasons, doctors are now referring patients to more number of Specialists in order to document diligence in treatment and to share responsibility, should the outcome of treatment not be as expected.
3. Doctors are reluctant to accept patients who are critically ill and whose prognosis may be equivocal. They are promptly referred to high-end or tertiary care hospitals, though they could well have been treated in a low- cost facility. Apart from implications on cost, this also has implications of delay in commencement of treatment. The homily, that it is better for the doctor to be safe than sorry has never been more faithfully followed. This again is on account of the scare of CPA.
4. The patient-doctor relationship has taken a hit, being severely eroded. A doctor now tends to look upon every patient as a potential plaintiff. He is more concerned with documentation and doing the medicoegally correct thing than the actual medical issues. Mutual trust between patients and doctors has been replaced with mutual suspicion.
5. As a result of all of the above, practicing defensive medicine by doctors is now inevitable. This has a domino effect and has escalated the cost of health care by crores of rupees, a cost which a resource challenged country like ours can ill-afford. Sadly, patients are the worst-affected.
6. More doctors are retiring from practice early or switching over to alternate occupations in order to pre-empt a traumatic litigation experience under the CPA. There is presently a hopelessly skewed doctor-patient ratio in this country. Experienced doctors closing their practices prematurely is a severe loss to society and can only make a bad situation worse.
7. Small and medium hospitals/nursing homes, fearful of the post-CPA scenario are shutting shop, further worsening the hospital beds / population ratio.
8. Bright students now do not find pursuing a medical career attractive, since the profession has become a high risk, low return profession. As a result, the quality of doctors has already started plunging.
9. Owing to the fact that CPA has led to souring of patient-doctor relationship , apart from the risks of litigation , the bigger risk of being subjected to physical abuse is now a reality and is proving to be an effective deterrent for good students from taking up the medical profession, further compounding the situation.
Clearly, including medical services under the CPA has proved to be counter- productive and has neither served the cause of patients nor of the healthcare system and hence ought to be reviewed and reversed.
It is incredible that the set of persons who comprise the Consumer Forum and are supposed to adjudicate on complaints pertaining to medical treatment have zero knowledge on medical matters, being non technical as far as Medicine is concerned. Yet they are expected to give opinions and judgments on what are often highly specialized, technical medical matters of which they have no knowledge whatsoever. Huge compensations are being awarded often on the basis of perceptions of laypersons or flimsy technical deficiencies or on sympathy factor.
Medicine is a highly complicated science – being related to a complex machine. It has also been described as an inexact science and to give retrospective judgments which have the benefit of hindsight is grossly unfair.
Complaints of medical negligence against doctors and hospitals are essentially complaints of professional incompetence or professional dereliction of duty. Of course, they should be actionable .But this should be determined by professional, technical persons who have knowledge and experience of the subject at hand. In fact, those professionals investigating the complaint should necessarily belong to the same specialization as that of the accused doctors. For example , how can an Orthopedic surgeon opine on deficiencies or otherwise of, say, a coronary artery stenting done by a cardiologist when he may not be even in a position to comment on an ECG with conviction.. Only a panel of cardiologists ought to be giving their considered and expert opinion in the matter. The same is true vice versa. Enquiry into a plane crash to establish the cause of the crash is always done by a technical team of aviation experts, even if under judicial supervision .Similarly, how can the reason for complications of a Laparoscopic surgery be judged by non-experts.
This reasoning becomes more important because of the fact that an erroneous judgment has extremely grave consequences for the accused doctors. The fact that a judgment given by a lower Forum is often reversed by a higher forum giving diametrically opposite reasons for acquittal or conviction confirms the arbitrariness of the proceedings.
It is our considered submission that medical complaints should be outside the purview of consumer courts. Instead, they should be directed to Professional Tribunals with Specialty specific experts on it. (Experts could be selected from a pool of senior, retired Specialists of integrity) A judicial officer such as a retired judge could be the guiding light of the Tribunal. This Tribunal should exclusively hear medical cases. It should not be in the nature of legal proceedings but a technical enquiry into the medical facts of the case. It should be an enquiry about professional conduct, by professional experts. Hence lawyers could be dispensed with resulting in reduced cost implications and speedier decisions in a time bound fashion facilitated by the fact that there are no lawyers and hence no adjournments and the like. Tribunals could be appropriately empowered and have the force of Law.
Speedy, seamless enquiry would be appreciated by patients as well as doctors who, in a medical mishap, are described as the second victims.
Medical Councils should restrict themselves to complaints of violation of the Code of Medical Ethics and professional misconduct especially those involving moral turpitude. Medical negligence cases should be placed within the domain of the Tribunal of Experts. Bringing medical services under the purview of CPA has inflicted severe damage to the healthcare system and to patient –doctor relationship as can be seen by the current healthcare scenario.
We have to request you to ponder on our above submissions .We are sure that in view of your profound knowledge and erudition on this subject you will apply the same wisdom and logic which prevents you from writing a similar letter to the Prime Minister to include the legal profession under the purview of the CPA both being liberal professions and not a business or trade. Our Association will be pleased to have further interactions and networking with you and your team at the prestigious and nationally acclaimed National Law School of India University.
Looking forward to your response. With best wishes.
Dr. Lalit Kapoor President-FAMCI
Dr. Niranjan Agarwal Vice President – FAMCI
Dr. Kishore Adyanthaya Hon. Secretary-FAMCI
Dr. Divaker Rao Treasurer-FAMCI
Copy to: Shri Narendra Modi, Hon’ble Prime Minister of India. (Along with a letter of Prof. Dr. Ashok R. Patil for ready reference)