I had mentioned in my last article that we have a strong case against consumer protection act being made applicable to the medical profession. This is that strong argument, and I believe it will work if properly put up. But before that, let me tell a past incidence.
Mr. Madhav Gadkari was the editor of Loksatta–a Marathi news-paper. He was very out-spoken -to a fault. Once he wrote an article stating that the High Court Judges are most negligent. One judge sleeps while the advocate is pleading, and wakes up only when he has finished. Another judge gives a favourable judgement when a particular female lawyer pleads because she is very beautiful. Yet another judge is partially deaf and uses hearing aids. But whenever he is bored, the said judge removes his hearing aid and dozes off. Obviously the judges have already made up their minds without hearing the opposite side. An article so brazenly accusing the high court judges was bound to invite “Contempt of Court” proceedings against Mr. Madhav Gadkari and the Loksatta newspaper. The High Court bench demanded an unconditional apology, but both of them refused to apologise. Instead, Mr. Gadkari asserted that he was telling the truth; he can prove his statements with concrete instances against each of the judges and therefore it is not a case of contempt of court but it is a right of the media to inform the public about the actual facts of high court proceedings. He pleaded that he may be allowed to bring his material and his witnesses to prove his point.
Strangely, (or appropriately?) the high court bench refused to give him such an opportunity and gave a verdict against him. The supreme court, on appeal, upheld high court judgement and Mr. Gadkari was punished with a token fine. The judgment, in effect, said that the citizens of the country have strong faith in the judiciary and its impartiality. This faith of the citizens is the strongest pillar on which the entire judicial system is based and accepted by the people. If this faith is eroded, the people coming to the court for justice will start doubting each and every judgement and the whole judicial system will collapse. Even if it is presumed that a few judges are defaulters as mentioned by the article concerned and even if Mr. Gadkari had sufficient proofs to prove, it is extremely unsafe to allow these facts to be brought to light as the whole judicial system will collapse as mentioned earlier. TRUTH CANNOT BE ENOUGH WHEN THE FATE OF THE WHOLE (JUDICIAL) SYSTEM IS AT STAKE.
The same argument can be applied with equal force to the health service provided by qualified doctors. In most ordinary illnesses, it is FAITH THAT HEALS. The prescriptions of the doctor help but they are not the actual healers in most instances. Even in major illnesses, faith contributes a lot in healing and helps substantially more in allowing doctors to take decisions. Therefore, the whole system of clinical practice will collapse, if the Faith of the people in Doctors is lost. And that is exactly what is happening after the Consumer Protection Act has been made applicable to the Medical Practitioners. The health- care system has collapsed and therefore TRUTH CANNOT BE ENOUGH TO PROSECUTE THE DOCTORS WHEN THE FATE OF THE (HEALTH-CARE) SYSTEM IS AT STAKE.
The consumer Protection Act was enacted to protect the consumers who purchased goods or services from being cheated by the shopkeepers. It was then claimed that the act was not applicable to medical services as there was no contract nor any promise of result. The argument was first rejected by the Kerala High Court; the Honourable judge insisted that it is a contract between the doctor and the patient. But we can insist that it is a contract essentially based ON FAITH. In most illnesses, it is the faith that heals. If faith is excluded, and it becomes a mere contract, the clinician has to work fool-proof. He cannot take the slightest risk. If a patient comes for chronic headache, he has to advise a C.T. Scan and a fundoscopy before declaring that it is due to psychological reasons -which he knew anyway in the first place only. A cardiac condition has to be ruled out by E,C.G.,2D Echo, and angiography, for a patient with pricking pain in the chest, before he is relieved by Antacids. Clinical judgement, based on general circumstances and other symptoms could be fallacious. The doctor would not take any risk, even if the patient was poor. “Let him refuse” will be his response.
Thus, the C.P.A. is contributing to the collapse of the health-care system, even if it may not be solely responsible for it. Nor is it helping the real sufferers. There is no punishment for the doctor. He has to only pay compensation which he now collects from all his patients through higher charges to pay for his indemnity insurance. Actually, C.P.A. can only be compared to the “Blood Money” law in Pakistan wherein a murderer is let free by paying the victim’s family a defined amount of money.
The medical science and its application in clinical practice has progressed a great deal through “trial and error”. What was considered “The Latest in Management” has often been discarded as junk a decade later. Noradrenaline was considered a miracle drug a generation ago but is now considered a very dangerous drug. This progress is achieved through relentless discussions and critical analysis of the treatment protocols/drugs continuously through years. The critical specialists continuously find faults with the present practice in their clinical meetings in medical colleges and scientific conferences. The C.P.A. has put a virtual full-stop to such free and frank discussions even in the closed-door meetings. The news that “something went wrong, the treatment was faulty” would leak out in no time. There are press reporters amongst the very doctors attending the meeting! So, the meetings avoid being critical and conveniently push the blame on “lack of modern equipment, modern facilities or paucity of technical staff”. Thus instead of any efforts to improve the personal skills or improved understanding of the subject, the whole medical profession is prefering to fall into the hands of the manufacturers of high cost modern equipments. These manufacturers are already aggressive in their marketing, trying to impress that their new product will definitely reduce the errors. Time and again these claims have been proved wrong; but the manufacturers come-out with a new product. The ultimate sufferer is the Patient who has to bear the additional costs, often without any additional benefits. C.P.A. has contributed a lot to this decaying process by abolishing all resistance of the conscientious and socially oriented specialist doctors. If the act was made non-applicable to the medical profession, it is distinctly possible that the movement against abuse of high technology and costly treatments would revive as it is the need of the country. Even the rich developed countries like U.S.A. and U.K. are finding it difficult to meet the expenses of the health care and their leaders are desperate to find ways to reduce the costs.
Therefore looking at the disastrous effects on the doctor patient relationship, some alternative method of compensation needs to be evolved. It is also necessary that grossly defaulting doctors be suitably punished.
The Finance Minister had recently announced a 5% tax on all hospital bills of air conditioned hospitals with more than 25 beds. This would have gone to the coffers of the central government. Instead, the medical profession could agree to a 5% tax to be collected from each and every hospital/nursing home/diagnostic centre but this would form a Reserve Fund for compensating the aggrieved patients. The same medical centre could be allowed to use upto 50% of the amount it has deposited while the remaining 50% could go to the common pool. In this system, there is no discussion or dispute about the guilt or otherwise of the doctor or the hospital. Only those patients in whom the complications or death was mostly unexpected would be compensated. It would also be possible to compensate families where the earning member on whom the family was mostly dependent, gets crippled or dies due to an acute illness-even if there was no accusation about his/her treatment. If CPA was made non-applicable to health-care services, such a scheme would be widely accepted by the society and it will not disrupt the faith of the society in doctors. This idea was proposed by Dr. R.D. Lele but was not considered seriously by the fraternity.
In addition, the medical fraternity could offer certain noble concessions to the affected family, if and when unexpected complications occur. It can be stipulated that the family will have to bear the additional expenses upto Rs. one lakh or two and half times the original estimate whichever is higher but after that the doctor/s would charge a nominal fee or nothing for his visits, and the hospital will also collect minimum [cost]charges for all services, investigations, and medicines etc. Such a step, taken by the association and publicly announced, as Professional Ethics, will go a long way to soften the public opinion.
But it would be unfair not to keep the doctors answerable for their conduct. As shown earlier, the C.P.A. has hardly achieved this objective. It would be better if the Govt. evolves a regulatory authority and the fraternity accepts it. The concerned authority will not question the decisions of doctors but certainly will examine whether the protocols were properly followed or not. The government has already passed “Clinical Establishment Act 2010” and accreditation is already on the cards. All the establishments can now be accredited as 1) Convalescent home 2) Day Care Centre 3) Nursing Home 4) Mini Hospital 5) Hospital and 6) Five Starred Hi-Tech Hospital. [This is just an arbitrary classification to emphasise the categorisation of the establishment that will define vaguely the types of cases the centre can take up, depending on the facilities and the staff therein.] Similarly, display of charges for various services, including the fees of the specialists, was made mandatory by MCI but was not being followed. This rule can be strictly implemented. The medical council is already making it compulsory for the doctors to attend refresher courses before re-registering them. Good clinical and hospital records should be made mandatory which must include good clinical notes, the final diagnosis with staging and the time of the visit of the specialist and his findings and management advice. Committees could be appointed in each district and each metropolitan city to look into the complaints and take appropriate action. The rationale of the specialist’ advice cannot be questioned, as each specialist is an “Expert” even in legal terms. Therefore he is entitled to take his own decisions.
These regulatory mechanisms, if strictly implemented, will regulate the conduct of the doctor and the hospital far better than at present. The interests of the patient will be sufficiently safe guarded. It is in the interest of every one that the C.P.A. should be made non-applicable to the medical profession because it is a contract with faith as its main ingredient and because the whole health care system is collapsing under the weight of C.P.A. If these facts are repeatedly highlighted through the media and the medical conferences and if a P. I. L. is lodged in the high court, I feel confident that the courts will reverse their present decision.
About the Author:
Dr. S.V. Nadkarni