DEVINDER Gupta, a senior clerk in the Supreme Court, lost vision in his left eye while being treated for a minor ophthalmic ailment. He blamed his doctor, but could not afford to approach the regular courts for redressal. Hope dawned last week with the landmark ruling by the Supreme Court bringing medical services within the purview of the Consumer Protection Act (CPA). He rushed to the consumer court and filed a Rs 10 lakh suit against the ophthalmologist. "I am partly blind because of his incompetence. Doctors cannot just play with people's lives," says Gupta.
Kanwar Deepak Gulati underwent surgery for a throat ailment. He lost four teeth and found that he had been incorrectly diagnosed and his condition had deteriorated. He filed a plea in the Delhi State Consumer Disputes Redressal Commission against the Ganga Ram Hospital in Delhi in 1992. These cases and many more will now be taken up by the consumer courts, thanks to the Supreme Court ruling.
Fifty-two pleas, each claiming damages of Rs 20 lakh or more, are pending before the National Consumer Disputes Redressal Commission. Prestigious hospitals in Delhi like Batra, Holy Family, Red Cross and St Stephen's are facing litigation from irate patients. All the cases were adjourned sine die in 1992, after the Indian Medical Association (IMA) went to court, challenging the Commission's view that medical ser-vices fell within the purview of the CPA.
While the recent ruling has been welcomed by many, there are fears that the CPA may be abused. "Now that the flood-gates have Opened, thousands of cases will be filed. Many may be intended to harass the doctor or squeeze him of money," says the IMA's counsel, R.K. Anand. Even consumer rights activist H.D. Shourie acknowledges the bogey of frivolous litigation, saying: "There is a specific provision in the CPA which provides for a Rs 10,000 fine on trivial suits. However, I would like to have the penalty made more stringent and even provide for imprisonment to avoid abuse of the CPA."
Reactions from the medical community have been predictably sharp. Describing the ruling as "horrible", Dr Ashwini Chopra of the Aashlok Hospital warns that doctors would now tend to practise "defensive medicine", to the detriment of their patients. The objections centre on three arguments:
Shourie dismisses these arguments, saying that the element of commerce already exists between doctor and patient except in hospitals where treatment is rendered free of cost (these are exempt from the CPA). "But that does not spoil your relationship with your family physician," he observes. And if doctors tend to be more cautious, so much the better.
The IMA's plea against the inclusion of medical practitioners in the CPA was that medical services were personal rather than professional. Section 2(1)(0) of the Act exempts "contracts of personal service". You cannot, for instance, sue your domestic servant for negligence under the CPA. In 1992, the Andhra Pradesh High Court held that private medical practitioners could be held accountable under the CPA.But in 1994, the Madras High Court took the opposite stand.
In its recent ruling, the Supreme Court distinguished a contract 'of' personal service from a contract 'for' personal service and ruled that the services rendered by medical practitioners fell in the latter category and could therefore not be exempted from the CPA. Going a step beyond the Andhra Pradesh High Court, it specified that even government and non-government hospitals where some patients were treated free of cost and others charged according to their incomes—as in Delhi's All India Institute of Medical Sciences—would fall within the purview of the CPA. Regardless of whether a patient is paying or non-paying, he or she should be regarded as a consumer and treated with equal care.
The judgement has been criticised for exempting free hospitals. For instance, Safdarjung Hospital in Delhi falls outside the CPA'S purview because services there are totally free of cost regardless of the patient's economic status. A couple of years ago, a plea by an AIDS victim who claimed to have acquired HIV during surgery at a charitable hospital in Miraj was dismissed by the Maharashtra State Commission, on the grounds of the patient having received free medical treatment. "The CPA specifies that services must be bought. You can't sue me if you drink a free glass of water at my house and get jaundice," says a National Commission official.
Despite their opposition to the Supreme Court ruling, most doctors admit that the medical community must be made accountable. A senior neurosurgeon at the Christian Medical College in Vellore, a major referral hospital for south India, observes: "We get hundreds of cases where patients have been incorrectly treated and have sometimes died as a result. In some cases they have been operated upon uselessly just so that the surgeon can make his money." Doctors have been successfully sued for negligence—Apollo Hospital in Madras had to fork out a compensation of Rs 27 lakh to former national table tennis champion V. Chandrasekhar for incorrect surgery which has impaired him for life. But few patients have the means to sustain a protracted legal battle.
While not against an alternative to the regular courts, doctors insist that they must be judged by their peers. While the Medical Council of India has not proved particularly effective in containing negligence or punishing malpractice, the consumer courts are not the answer. Dr B. Chakravarty, medical superintendent at Safdarjung Hospital, strongly feels that a medical board should be appointed to deal with complaints against doctors. He also suggests periodic tests for renewal of doctors' licences to practise as a safeguard against complacency.
Dr Chopra points out that doctors often function under conditions beyond their control which only another medical practitioner would understand. It is essential that someone with a knowledge of medicine, rather than of law, chartered accountancy or social work, pass a verdict on a medical decision. The IMA will discuss the possibility of a review petition at a meeting on November 25.
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While doctors grumble and patients exult, insurance companies are gleeful. They foresee malpractice insurance as the norm rather than the exception, as in the US. "We have an indemnity scheme for doctors and nursing homes but so far it has not been very popular. Claims were also few and far between," says a regional manager at Oriental Insurance. He adds: "Now, we can expect a boom. Every doctor and hospital will want insurance cover."
