On 13th November, 1995, more than twenty years ago, the Supreme Court passed a landmark verdict in the Indian Medical Association vs. V.P. Shantha, stating that the medical profession was covered under the ambit of the Consumer Protection Act (CPA), 1986. The decision was met with an uproar from the medical fraternity; black armbands, morchas, ‘stethoscope-down’ agitations and angry interviews on TV channels, repeatedly emphasised that ‘medicine was an unpredictable science, no doctor could guarantee results’, and that such a ‘draconian Act’ would sound the deathknell of the medical profession.
The situation today
Two decades later, the anger still simmers beneath the surface for ‘making doctors soft targets for unscrupulous patients’, but those in the know of things and the wise men in the profession admit that the accountability ushered in by that judgment has brought about some level of responsibility and caution in the way doctors go about their day-to-day work.
Till the Consumer Protection Act came into force, the medical profession was a largely unregulated and irresponsible fraternity, which was allowed to carry on all sorts of activities, without being reined in by the law or the regulatory bodies. The most blatant practices and undesirable activities were often explained away with nonchalant expressions like ‘the patient needed it at that moment of time’, or ‘a medical person has the right to do what he thinks right at that particular moment’. Patients and relatives, who had absolutely no inkling of what the mysteries behind medical treatment were, had little or no option but to believe that the doctor was always right, and if something went wrong it was ‘bad luck’.
All this has undergone a sea change since the judgment. The laws of negligence have come into sharper focus, the courts have laid down various principles on how medicine can be legally and rationally practiced, and lawyers have gradually learnt to tackle medical negligence cases. More important, it has led to a situation where doctors have learnt to be more careful, both while treating patients and dealing with relatives, as they have realised that a hanging Sword of Damocles would otherwise bring them to book via the CPA.
The positive impact of CPA
Several excellent legal precedents laid down by the judiciary have helped the law in medicine grow significantly, leading to better medical practices, and better patient compliance:
The challenges of CPA
Inspite of all these changes in the law and its dynamic nature, the fight against the medical profession remains an uneven battle for most patients. There are several reasons for this. Firstly, most patients do not have the slightest inkling of the sequence of events that led to any catastrophe, barring the general feeling that something has gone wrong. Second, the legal profession has neither the knowledge nor the understanding to accept that medico-legal cases need to be treated differently from other run of the mill litigation. Third, the brotherhood of doctors often comes to the rescue of a fellow in distress, by giving false affidavits or testifying that nothing was wrong in the treatment, even in the most open-and-shut cases. Lastly, the judiciary with all its other shortcomings, often (and some say, rightly), hesitates to declare a doctor guilty of an error either due to ignorance or respect for the man in the white coat.
Turning now to other aspects of misdemeanours by the man in the white coat, inspite of great efforts to legally curb them, malpractices have continued unabated in the medical profession in India. Sex determination, a heinous crime against humanity, continues undeterred because of the active connivance of the medical profession in this practice. Rackets in kidney transplants and ‘organ donations’ make India a country where organ donation and transplantation is riddled with often insurmountable hurdles, in comparison with the technology and infrastructure available in the country.
It is also a matter of great shame to realise that Acts to prevent female foeticide and regulate transplants are non-existent in most parts of the civilised world. In the midst of all these, the medical man continues to work as if he does not realise all that is going on around, with a halo around his head. This has lead to great erosion of faith in the medical profession, among the public at large. The number of black sheep may not be many, but the turning off a blind eye to these blatantly illegal activities is classified as abetment, in the public mind.
Even 20 years after the landmark judgment of V.P. Shantha, medical negligence jurisprudence is a work in progress. Good cases, where medical negligence is patent on the face of the matters, get dismissed for want of proper representation in the courts. On the other hand, a poor case may sneak in through at the hands of a smart lawyer opposed by an incompetent defence attorney. Delays in courts in disposing off medical cases is also a huge stumbling block in filing and pursuing such cases. Most judges avoid early hearing in these cases convinced that they do not understand the intricacies of medical jargon, or simply because they find them too time-consuming and complicated. A case in a consumer forum or commission can take as much as three to seven years for disposal, which is comparable to the outcome in regular civil courts, thus making a farce of the alternate remedy which was thought of at the time of enacting the Consumer Protection Act in 1986.
The irony!
This has hence led to the phenomenon of the vigilantes and lumpen elements who now do not hesitate to attack hospitals, doctors and nursing homes when they believe that the doctor is at fault, when the outcome in a case is not to their liking. Incidents from all over the country now reveal a growing tendency of mobs to take the law into their own hands and manhandle doctors and their staff.
In recent weeks and months, doctors are out once again on the streets with black bands, morchas, ‘stethoscope-down’ campaigns and heated debates in TV studios. The only difference now is that they want to be saved from these vigilantes. The solution, to patients with grievances, being offered by these doctors is an eye-opener; let them take recourse in the law, viz., the Consumer Protection Act!
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Dr. M.S. Kamath
Dr. M.S. Kamath is a medico-legal consultant and Hon. Secretary of the Consumer Guidance Society of India.[/column]