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Consumer Protection Act and the Medical Profession

N.Satyanarayana, G. Vijaya Kumar

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Prevention of Malpractice Litigations;

“Prevention is better than cure”. Prevention can be done in three levels.

A) – Primary Prevention:

1. – Good Communication and informed consent:

The concept of informed consent has come to the fore in recent years and many actions have been brought by patients who alleged that they did not understand the nature of the medical procedure to which they have given consent. All information must be explained in comprehensible non-medical terms, preferable in local languages about the

  1. diagnosis
  2. nature of treatment
  3. risks involved
  4. Prospects of success
  5. Prognosis if the procedure is not performed, and
  6. alternative methods of treatment.

The physicians duty to disclosure is subject to the exceptions;

  1. if the patient prefers not to be informed, and
  2. if the doctor believes in the exercise of coming to sound medical judgement, that the patient is so disturbed or anxious that the information provided would not be processed rationally or it would probably cause significant psychological harm. This is known as therapeutic privilege. In such a case it is advisable that the doctor should consult the patient’s family physicians. Revelation of risk is always a compromise between reasonable information and the danger of frightening off the patient from beneficial treatment, The three important components of such consent are information, voluntariness and capacity.

2. – Defensive Medicine:

An off-shoot of protection against CPA is defensive medicine. Medical professionals of late, started practicing defensive medicine in order to protect themselves against overzealous patients complaints. It is not easy to practice defensive medicine. The patient can also sue a doctor for over prescribing or unnecessary hospitalization. In U.S.A. there is a system in which there are periodic checks to see if doctors are unnecessarily subjecting patients to a wide range of tests or keeping them in hospitals on flimsy minor grounds. In a country like India wherein the patients are by and large form lower socio-economic strata it becomes very difficult for treating physicians to go in for defensive medicine as it costs heavily the patient who can ill afford such a treatment approach.

B) Secondary prevention:

Some cases of negligence or deficiency of services will come up to the Court or Forum even after adequate precautions are taken.

  1. The State Medical Council should be better empowered and have a separate complaints cell. It should ideally consist of:
  1. Office bearer of MCI
  2. Judge
  3. Prominent public figure

This will stop unnecessary litigations and provide true justice.

  1. Accreditation of Hospital – A system of accreditation of private hospitals and Nursing Homes have to be introduced in order to achieve and maintain the optimum standard of diagnosis and care.
  2. Quality Assurance programme: a system of quality assurance programme is to be introduced as a regular feature in every hospital. The measurements involve two basic concepts.
They are:

  1. Quality art of care
  2. Technical art.
  1. Proper Medical Records: the hospital should ensure the entries made in its medical records are thorough and proper.? The medical records are thorough and proper.? The medical record is often the single most important document available to the hospital in the defence of a negligent action and ordinarily is admissible as evidence of what transpired in the care of patient.
  2. Regular patient satisfaction surveys to detect early any areas of patient dissatisfaction and take prompt, preventive/corrective action.

Tertiary prevention:

The following innovative methods are being practiced in the Western world to counter the adverse outcome of the CPA, in India also these practices may be emulated.

A) Medical indemnity insurance:

It covers in respect of errors and omission on the part of professional rendering their services. The Insurer should send a proposal from and renew it for subsequent period. The policy will damnify any act committed by the insured who shall be a registered medical practitioner, giving rise to any legal liability to third parties. The limit of indemnity granted under the policy is for any one policy is Rs. 1000/- compulsory excess or voluntary excess applicable.

R.D. Lele, 1992 opines that the doctors should be careful in not disclosing the medical indemnity insurance coverage for the simple reason that, the patient may exploit it for litigation purposes.

B) Counter Suits:

In order to prevent harassment from overzealous patients, in some of the advanced countries the medical professionals have started the concept of counter suits. In this the doctors initiate counter suits against patients for being sued without valued grounds. In a survey in U.S.A. counter suing of patients by doctors brought down the incidence of malpractice suits by almost 75percent. This has encouraged many doctors to resort to a similar strategy and their lawyers who sue doctors without any rhyme or reason (R.D. Lele, 1992)

N.Satyanarayana, G. Vijaya Kumar

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