Wednesday, 19 February 2014

IMA be a party in the review petition against record compensation for medical negligence?



The Indian Medical Association (IMA) has appealed for review of a recent Supreme Court judgement in which the apex court awarded a record Rs 6.08 crore compensation in a case of medical negligence.

The Supreme Court on October 24, 2013 awarded Rs 6.08 crore compensation to Dr Kunal Saha, an Indian-American doctor, ordering the Kolkata-based Advanced Medicare Research Institute (AMRI) to pay for medical negligence resulting in the death of his wife Anuradha Saha in 1988. The judgment divided medical fraternity with strong opinions against and in favour of the SC verdict.

In a statement issued on February 11, the IMA said, “The association is of the view that compensation imposed for medical negligence should be punishment and not burden.”

Dr Jitendra B Patel, national president, Indian Medical Association, said, “IMA is not against the punishment to guilty but is of the view that the quantum of punishment is such that it might become a restraint for others to join this profession.”

According to the statement, there is a thin line of demarcation between medical accident and negligence as medical treatment does not have fixed modus operandi. The treatment of the patient is entirely based on the patient’s condition, response to treatment, which may vary from person to person, besides knowledge and experience of the treating doctor.

“If something goes wrong in the treatment then it appears as medical negligence. If a high compensation as this becomes a milestone then medical practitioners will be petrified in treating complex cases. As a result the benefits of medical facility will be affected across various sections of the society,” it said.

“The judgement given by the apex court has come as a blow to the medical professionals who are very new to the profession. It is important to note that currently India needs more than six lakh doctors. But such kind of decisions will frighten students from joining the profession acting as an obstacle in the progress of healthcare in the country,” said Dr Narendra Saini, honorary secretary general, Indian Medical Association.

According to the IMA, there should be a cap on the compensation and the compensation should be based on parameters like earning of the hospital or the doctor on whom compensation is levied, expenses incurred by the patient during treatment, severity of the patient’s disease and the chance of the patient’s survival without treatment and not on the earning capacity of the patient.

Speaking to India Medical Times, Dr Saini said, “IMA is a party to the review petition filed by the AMRI Hospitals, Kolkata. The petition by the AMRI Hospitals was filed a month ago and we are in full support of the petition.”

On the question that why the IMA has delayed filing the review petition and issuing the press release to express its views, Dr Saini said, “Filing a petition is the job of a lawyer. There are many things involved in the legal process. Somebody has to take the initiative to file the petition, IMA can only become a party to the petition.”

Dr Saini further said, “Those who believe that IMA has just reduced itself to issuing press releases regarding the issue instead of taking concrete legal action, our action should give them a firm reply that we indeed are active in taking up the fraternity’s cause and issues that can affect our profession.”

He added, “We are not against punishment for medical negligence but compensation should be logical. Do not penalize so much so that it sends negative signals to all. We want that medical negligence cases should not be tried at par with Motor Accident Cases. There should be new guidelines and direction by the government with regard to compensation related to medical negligence cases.”

“In case we lose the case, we will go to the Parliament and the Law Commission to bring some amendment in the law, that can fix a cap on the compensation issued in medical negligence cases based on practical assessments like earning of the hospital and doctor, expenses incurred by the patient during treatment, earning of the doctor on whom compensation is levied, severity of the patient’s disease and the chance of the patient’s survival without treatment,” Dr Saini said.

Dr M C Gupta, a medico-legal expert, expressing his views on the press release issued by the IMA told India Medical Times, “The facts are simple. The SC gave a judgment. A review petition has apparently been filed in the SC as per procedure. It will come up in due course. In the circumstances, what is the purpose of this appeal to an unspecified person?”

When asked if the SC judgement might become a restraint for young people to join the medical profession, Dr Gupta said, “The quantum of punishment in the referred judgment is mainly against the hospital, not the individual doctors. It is not clear how the judgment will restrain young men and women from joining the medical profession. Such fear is unwarranted.”

He further said, “Firstly, there is a huge number of aspirants willing to join the medical profession and capitation fee of Rs 50 lakh for MBBS is not unheard of and is even Rs 2-3 crore for particular postgraduate specialties. Secondly, the wise and discerning young men and women are already deciding to shun the option of becoming a doctor because they find management, civil services and software engineering as better options.”

Commenting on the thin line of demarcation between medical accident and negligence, Dr Gupta said, “The thin line referred is to be decided by competent authorities. In the present case, two very competent authorities decided that the line had been crossed. One of these was the SC itself. The second was the MCI. In the circumstances, if the IMA implies that the judgment was arbitrary, this can’t be accepted.”

“The negligence in this case was gross negligence which even a medical student is not supposed to do. The so-called eminent doctor of the so called eminent institute (AMRI) prescribed Depo Medrol injection twice a day over about a week leading ultimately to the death of the patient. The dose should have been not more than one injection a week. After all, it is clearly a Depot preparation and even a layman should have no difficulty understanding this. As a matter of fact, it was shameful on the part of the West Bengal Medical Council — which has representatives of the IMA on its board — to reject the complaint filed by the husband of the deceased, saying that the doctors had done nothing wrong,” Dr Gupta said.

On the IMA’s appeal that the compensation should be based on parameters like severity of patient’s disease and the earning capacity of the doctor, Dr Gupta said, “This means that if a serious patient is treated negligently by a hospital or a doctor whose income is meagre and the patient does not incur much expenditure upon treatment, then penalty for death caused by negligence should be minimal. This is perverse logic. It would mean that substantial compensation for medical negligence should be awarded only when the hospital is rich and the patient spends a lot and the illness is not very serious and chances of survival are not low. I am utterly surprised, both as a doctor and as a lawyer, how the IMA headquarters could ever make such an unholy statement by no less means than a press release issued by the president and secretary general of the national IMA.”

Dr Gupta said, “It is too late to issue such a statement. This is typical of an organisation that is perpetually in slumber. It has time to meddle in others’ affairs — after all, the IMA has nothing to do with the referred SC judgment which concerns two private parties — but has no time to address several urgent and crucial issues of national importance such as: promotion of AYUSH as practitioners of allopathy; imposition of statutory obligation of providing treatment to patients as per section 12(2) of the Clinical Establishments Act, 2010, without any provision for payment for services rendered as proposed in the Report no. 201 submitted in 2006 by the Law Commission of India titled as — ‘Medical Treatment after Accidents and During Emergency Medical Condition and Women in Labour; involvement of the NBE (National Board of Examinations), meant for medical super-specialties, in the BSc (Community Health) course even though the MCI thought it fit to keep itself out of this flawed scheme; compulsory rural service before admission to PG medical courses; proposed increase in duration of internship to two years by adding one year specifically for rural service; and quackery.”

“The IMA has no locus to file a review petition in a case where it is not a party. The whole purpose of the press release seems to be to gain cheap popularity at no cost by meaningless talk without substantive action, creating avoidable confusion in the process,” he concluded.

As the issue of higher medical compensation has been doing the rounds since the SC delivered the judgment, any new turn in the observations by the court or the government on how to deal with medical negligence cases is awaited. The restlessness among the medical fraternity is conspicuous as the profession demands more transparency and special treatment of medico-legal cases, different from other criminal cases. Any clarification by the apex court or the parliament is expected to give some relief.


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