Medical negligence and medicolegal aspects of patient care
Gupta, M C
Medical negligence and medicolegal aspects of patient care, Tapas Kumar Koley (Mehta Publishers, New Delhi) 2004. 331 pages. Price: Rs.290/-ISBN 81-88039-19-5
It is a sign of times that the medical profession is getting alive to the need for legal awareness. However, a doctor without legal background is ill equipped to write a book on legal medicine. Though the author of this book has this handicap, he has made a commendable effort.
The book has 16 chapters and an appendix. Chapter 10 on Medicolegal issues in epilepsy seems to be redundant in the present form. It mostly contains information about symptoms, aetiology and treatment of epilepsy. The Code of Medical Ethics, currently included in chapter 14 would have been better included in the Appendix. The Appendix section could have been shortened by deleting about 75 pages comprising Pre-conception and Pre-natal Diagnostic Techniques (PNDT) Act, MTP Act and Organs Transplantation Act. These do not directly pertain to medical negligence, which is the main theme of the book.
Though the author has taken pains to write a useful book for the medical professionals, there are certain areas that need attention. The author has not been able to understand and interpret certain legal provisions and principles correctly. In chapter 1 on page 16, the author states: ‘If the patient is not a consumer (complimentary patient) then the case will be automatically dismissed’. Unfortunately, things are not that simple. When a patient lodges a complaint with the Consumer Forum, he usually alleges that he had paid the necessary fees but the doctor did not issue a receipt. The onus lies on the doctor to prove that he provided services free of cost. In addition, the fact that no fees was charged does not amount to a license to the doctor to commit medical negligence. The aggrieved patient certainly can sue the doctor in a civil court as well as in a criminal court even if fees was not paid. On the same page, the author states that depending on ‘whether the case is subjudice in a criminal proceeding’, the doctor can take this as a defence when a complaint is filed against him in a Consumer Forum. This is not correct. The patient is within his right to file a criminal complaint at the same time as lodging a complaint with the Consumer Forum or Commission. There is no legal bar that the two cases cannot continue concurrently.
Chapter 2 titled as ‘Consumer Protection Act’ has several lacunae. It is stated on page 19 that ‘A patient who has not paid for his treatment is not a consumer as per Consumer Protection Act and he cannot claim any compensation in case of any deficiency of service’. This statement is incorrect and misleading. There may be many situations where a patient may not have paid for his treatment but still may be a consumer as per law. For example, he might have promised to pay, though not actually paid or someone else might have paid on his behalf or there may be no requirement to pay, as in case of a hospital where some patients are paying patients and others are free patients.
On page 23, while discussing the role of State or Central Government as a complainant, the author gives the example of a doctor whose license to practice was cancelled for 6 wk by Delhi Medical Council. This example is wrong as it has nothing to do with Consumer Protection Act, 1986. The action against the doctor was taken by the Delhi Medical Council itself under the Delhi Medical Council Act, 1997. On page 24, pecuniary jurisdiction of District Forum is mentioned as ‘does not exceed rupees five lakhs (twenty lakhs amended in 1993)’. This is wrong and confusing. The correct statement should be ‘does not exceed rupees twenty lakhs (raised from 5 lakhs in 2002)’.
On page 29, the author has discussed “No fault compensation” and states that: “In India, this system is existing only in few conditions e.g., failure or damage suffered in a government run health programme e.g., immunization program, family planning program etc”. This is incorrect as there is no legal provision to award no fault compensation to those who avail of health services. It is very surprising that the author recommends that Consumer Courts should award compensation against doctors to patients even if the fault of the former is not proved.
On page 31 the author states, ‘The most important question in the mind of government doctors is that whether they are liable to be sued by aggrieved patients under the Consumer Protection Act, 1986. The answer is no’. This statement is absolutely wrong in view of the 1995 Supreme Court judgment in Indian Medical Association vs. VP Santha.
Chapter 16 is devoted to the review of decided cases related to medical negligence. This is an important section of the book as 150 cases related to medical negligence have been included. However, the chapter is not well organized. There is no apparent classification or grouping or sequence in which the cases are presented. They are grouped neither according to the judicial forum concerned, nor in relation to medical specialities or in accordance with the main legal principle involved. In many cases, there is no mention of the concerned Consumer Disputes Redressai Agency (District Forum, State Commission or National Commission) concerned. It is obvious that the importance of a judgment is more if it comes from a higher authority.
There are certain errors of grammar, syntax and spelling at places in the book, but the get up of the book is nice and the price reasonable.
Overall, it is a nice attempt, useful for doctors in many ways, though it contains certain wrong and flawed statements about the Consumer Protection Act as applicable to doctors. The author and publisher would do well to correct the picture by including a 8-10 page supplement that may, euphemistically, be titled as ‘Recent Changes’. This may also include necessary details about the legal provisions and functioning related to disciplinary committees constituted by Medical Council of India and State Medical Councils to investigate complaints of negligence against medical practitioners.
M.C. Gupta
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Copyright Indian Council of Medical Research Jul 2004
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