HOSPITALS CANNOT COMPEL PATIENTS TO BUY MEDICINES FROM IN-HOUSE PHARMACIES; DOCTORS REFERRING GOVT. HOSPITAL PATIENTS TO PRIVATE NURSING HOMES COULD BE PENALIZEDHOSPITALS CANNOT COMPEL PATIENTS TO BUY MEDICINES FROM IN-HOUSE PHARMACIES; DOCTORS REFERRING GOVT. HOSPITAL PATIENTS TO PRIVATE NURSING HOMES COULD BE PENALIZED

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 8^th 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.

PUNJAB LEADS THE NATION IN TOTAL NUMBER OF MEDICAL NEGLIGENCE CASES ;COURTS QUESTION DOCTORS REFERRING PATIENTS FROM GOVERNMENT HOSPITALS TO PRIVATE NURSING HOMES – REPORTS 8TH ANNUAL MEDICO LEGAL REVIEW AMONG OTHER DATA & TRENDS

PUNJAB LEADS THE NATION IN TOTAL NUMBER OF MEDICAL NEGLIGENCE CASES; COURTS QUESTION DOCTORS REFERRING PATIENTS FROM GOVERNMENT HOSPITALS TO PRIVATE NURSING HOMES –  REPORTS 8TH ANNUAL MEDICO LEGAL REVIEW AMONG OTHER DATA & TRENDS

The 8^th edition of the Annual Medico Legal Review has reported that Punjab, with 24% of all medical legal cases, has taken the mantle of the top litigating State in the field of medical negligence. West Bengal, Maharashtra and Tamil Nadu follow with 17, 16 and 11% respectively. The review has also reported that complaints by patients for being forced to buy medicines from hospitals are on the rise, a point on which courts have drawn adverse inference.

“As compared to the previous years, 2015 has thrown a number of noteworthy trends and interesting judgments. For instance, an unusually large number of cases of negligence against surgeons going on planned leave / absences immediately after a surgery have been reported. We have also noted that allegations related to diagnosis - delay, failure and improper diagnosis – doubled this year,” says Adv. Mahendrakumar Bajpai, keynote speaker and a leading authority on medical laws.

The Annual Medico Legal Review held consecutively since 2009 by Institute of Medicine & Law (IML) has been summarizing the changes in medical laws that have occurred in the previous year and predicting trends for the forthcoming year in medico-legal environment from the perspective of Healthcare providers.

The highlights from 2015 include the Indian Courts continuing 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 have been observed to be even more accommodating by overlooking and condoning deviation from standard protocol.

Some of the common allegations filed by patients in the preceding year included failure of hospitals / doctors to give complete details of treatment and or charges, overcharging, prescription of expensive drugs unnecessarily and charging for a different type of room / facility.

In 2015, it was also observed that more and more aggrieved patients are suing 'only' hospitals and not doctors. The anomaly is brought to fore by two interesting cases. 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. The court had no other option but to hold 'only' the hospital negligent. The second case is 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 not sued by the patient

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 Dr. Suresh Vasishta, President, Association of Surgeons of India. Other prominent speakers and guests included Yogendra Singh, Advocate - High Court, Mumbai, Dr. V.P. Singh, Editor- Legal Issues in Medical Practice, Dr. H. S. Bali, Director, Health & Family Welfare, Chandigarh, Sh. Hussan Lal (IAS), Managing Director, Punjab Health Systems Corporation, Mohali among others. The review in Chandigarh will be followed by Reviews in Delhi, Pune, Mumbai, 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 organised 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.

HRAWI APPEALS FOR RATIONALIZATION OF IRRELEVANT LAWS SO THAT RELEVANT ONES CAN BE ENFORCED EFFICIENTLY

HRAWI Appeals For Rationalization of Irrelevant Laws So That Relevant Ones Can Be Enforced Efficiently

•  27% Of Existing Licenses Formulated Before 1950;
• Sand Buckets in Hotels Mandatory But Modern Fire Fighting Technology Does Not Count
• "Licence for Chimney under Smoke Nuisance Act" created in 1912 still in force
• Trivia: “The Eating House Licence” formulated in 1876 is the oldest license

In the wake of the fire disaster at a Kurla eatery in Mumbai, HRAWI, expressing its sympathy, has appealed to the Government to scrap all irrelevant laws so that both the enforcers and the hotels could concentrate on total compliance on all relevant laws and procedures. The industry has complained that it is reeling under a barrage of archaic laws that are unfeasible to comply with and are totally irrelevant.

“For instance, many hotels that have invested heavily in modern fire fighting technology are still required to keep a sand bucket. A sand bucket cannot douse most fires, but if a hotel or a restaurant does not maintain a sand bucket, it can get booked for non-compliance of safety norms. Or take the case of whitewashing a restaurant kitchen, almost all hotel kitchens are tiled, but we still have to provide a certification of white washing,” says Bharat Malkani, President, FHRAI.

The hotel industry today needs a whopping 134 licenses and permissions to operate in Mumbai. A large number of the licenses were formulated when the British ruled India. If the 89 year old “Entertainment Licence on Festival Occasions” was framed by the Britishers for controlling a subject nation, “Licence for Chimney under Smoke Nuisance Act” created in 1912 when food was cooked in firewood is completely irrelevant today. The oldest license is “The Eating House Licence” formulated in 1876. Nineteen of the seventy key licences were formulated before 1950.

“Hoteliers in Mumbai have a tradition of adhering to maximum compliance. If there were any shortcomings, they were mostly minor oversights like being unable to produce a license on time or practical challenges in adhering to outdated laws. But we can assure our patrons that there wasn’t a single case of violation that had a potential to impact their safety or health. Hoteliers are as serious about safety as anyone else. The owners spend more than 16 hours a day in their restaurants and consequently are at a bigger risk than anyone else. When it comes to health and safety norms, we are very careful,” says Mr. Kamlesh Barot, past President HRAWI.

“We want to operate in a system where there are rational licenses, zero ambiguity of laws and clearly defined check list and guidelines provided by enforcing authorities. We wish for a system that works on the principle of accountability and clarity of laws. The Chief Minister’s recent decision to reduce the number of operating licenses to 25 is a step in positive direction. We are hoping that the laws will be rationalized at the earliest,” concludes Mr. Malkani.

About Hotel & Restaurant Association Western India (HRAWI)

The Hotel and Restaurant Association (Western India) is a 65 years old Association of Hotels and Restaurants in Western India. Its members include smaller Hotels up to 5-Star Deluxe categories. The bulk of its members like any growth economy are made up of budget hotels. With around 1300 members across Western India, HRAWI covers Maharashtra, Gujarat, Madhya Pradesh, Chhattisgarh, Goa and the Union Territories of Daman, Diu & Silvassa, and is considered to be the voice of the Hotel Industry. The association is part of the national body of Federation of the Hotels & Restaurants Associations of India (FHRAI), located in New Delhi, which was originally founded in Mumbai in 1950 by the late Mr. J.R.D. Tata.