Hospitals
Cannot Compel Patients To Buy Medicines From In-House Pharmacies; Doctors
Referring Govt. Hospital Patients To Private Nursing Homes Could Be Penalized
Mumbai: When Shenar
Rehan was refused admission to the Cantonment General
Hospital, Aurangabad little did she realize that her experience, while personally
traumatic would set a precedent for thousands of patients across Govt.
hospitals in India. The patient, in labor then, had sought admission to the
hospital, but was directed to a private nursing home. When the aggrieved
patient later approached the Courts, Hon’ble Dr. S. M. Kanitkar of the National
Consumer Commission taking a harsh view on the practice not only imposed a
penalty of Rs. 5 lakh but also observed that the Cantonment General Hospital Board
can recover this penalty from the salary of errant doctors, CEOs, and staff, as
per law.
“The unambiguous
observation of Hon’ble Court that the hospital staff was ‘involved in referring
poor patients intentionally to the private nursing homes’ and ‘the poor
patients are deprived of essential medical services clearly shows that the
courts have taken judicial notice of this widespread illegality and are seeking
to address it,” revealed Adv. Mahendrakumar Bajpai, keynote speaker and a
leading authority on medical laws at the 8th Annual Medical Review
held at Mumbai.
The Annual
Medico Legal Review, held consecutively since 2009 by Institute of Medicine
& Law (IML) has been analyzing
the complete medico legal environment in the country, compiling comparative
statistics of medical malpractice cases, examining current trends in medical
malpractice cases and underlying reasons for increasing cases of medical
negligence.
“As
compared to the previous years, 2015 has thrown a number of noteworthy trends
and judgments. For instance, it was also observed that more and more aggrieved
patients sued 'only' hospitals and notably omitted doctors. Two interesting
cases bring this anomaly to fore. The first from Andhra Pradesh (Dr. M.
Sarojini Devi v/s Galla Jayanthi) wherein despite directions from the court,
the surgeon who had performed the surgery negligently was not made a party by
the patient and the court had no other option but to hold 'only' the hospital
negligent. The second case was from Delhi reported from the National Consumer
Commission (Himanchal Kumari & Ors. v/s The Govt. of N.C.T. of Delhi & Ors.).
The hospital alleged and admitted in the court that the oncologist was
negligent and not the resident doctor and the technician who gave radiation.
The court agreed with what the hospital stated and did not hold the resident
doctor and the technician negligent. But the hospital 'only' was held negligent
as the oncologist was not sued by the patient,” added Adv. Bajpai.
The
review also reported that complaints by patients forced to buy medicines from in-house
pharmacies of hospitals were on the rise and that allegations related to delayed and improper diagnosis doubled as
compared to the previous year. Filing of an unusually large
number of cases of negligence against surgeons going on planned leave or absences
immediately after a surgery were also observed.
In
addition, in the year under review, Indian Courts continued with the trend of
giving benefit of doubt to doctors; not questioning the correctness of medical
records, except in cases of gross fabrications; and, courts continuing to hold
that a wrong method or decision by a doctor does not necessarily constitute
negligence. During emergencies courts were observed to be even more
accommodating by overlooking and condoning deviation from standard protocol.
In 2015,
the Courts also held that a doctor relying on a wrong investigation report of
another qualified radiologist, sonologist or pathologist and acting accordingly
is not negligent. It also deplored appeals in trivial cases and penalized
appellants. “On the whole, the year was good as well as bad for doctors. The
courts are hesitant in holding the healthcare providers negligent and are
seeking more clear and convincing evidence from the patients. But once
convinced that the doctor or the hospital has been negligent then the penalty that
follows is heavy.”
Annual
Medico Legal Review 2016 was presented by Supreme Court Advocate, Mahendrakumar
Bajpai and chaired by Mr. Mayank Kshirsagar, Adv. Supreme Court, Dr. Atul Shah,
Hon. Sec., Association of Plastic Surgeons of India and Dr. Mahesh Baldwa, Sr.
Pediatrician & Medico Legal expert. The review in Mumbai will be followed
by reviews in Kolkata, Hyderabad, Chennai and Bangalore. Participation in this event is by invitation
only with about 80 - 100 invitees in each city. The attendees would also
include Ministry Officials, Regulators, MCI Office Bearers, Judges of the
National / State Consumer Commission, and press.
“Law is dynamic. Every single
judgment passed each day has the potential to amend the existing laws. While
these changes impact everyone, it has a wider implication for doctors. With the
exponential rise in medico legal cases and ignorance not being a valid defense,
it becomes imperative upon doctors to be abreast of changes in medical laws and
take appropriate precautions,” concludes Adv. Bajpai.
About Institute of Medicine & Law:
Institute of Medicine & Law (IML) provides education, information, and services related to medical laws. IML’s actionable content and analyses are delivered to doctors, hospitals, and lawyers on multiple platforms in real time.
IML is India’s foremost authority on medical laws possessing the best resources in terms of legal professionals and experts. Its detailed knowledge bank is continuously updated with the latest developments and is optimally utilized to provide medico legal solutions to the benefit of healthcare providers.
IML organized the first ever 'National Convention on Medicine & Law - 2015' (www.medicineandlawconvention.com), a platform to identify the legal issues relating to medicine, discuss them threadbare, and suggest remedial measures. Doctors, medical associations, hospitals, lawyers, judges, regulators, and policy makers were part of this initiative.
IML
has been conducting an annual exercise of drafting and adopting a ‘SOP on
Patients Consent’ (www.patientsconsent.com)
together with major national medical associations like IMA, ASI, FOGSI, API,
IOA, IRIA, AIOS, ISA, ISCCM, and CSI among others. This SOP is today accepted
as a standard, comprehensive, and legally compliant document on patients
consent in India.