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IN recent months, several reports of patients’ relatives assaulting doctors have appeared in the media. While this is a trend that needs to be discouraged, what it does show is deterioration in the relationship between doctors and patients. This is also reflected in the increasing number of complaints filed before the consumer courts. Before the National Consumer Disputes Redressal Commission itself, more than 500 complaints of medical negligence are pending. This increasing number of medical negligence cases, particularly at the district and the state level, has thrown up a peculiar problem: an acute shortage of doctors and specialists who are willing to come forward and give testimony in favour of the consumer. And this is not only affecting the consumers’ prospect of winning the case, but also causing delays in disposal. As it is, adjudication of complaints of medical negligence takes longer because of their complicated nature. And then, in many cases, hospitals do not provide the required medical records and the courts have to issue orders to get them. Now the problem is compounded by the unwillingness of doctors to come forward as experts. Under the Consumer Protection Act, in order to get compensation, it is not adequate to prove deficiency. The complainant must also show that such deficiency was caused as a result of negligence. In other words, when a consumer files a complaint of medical negligence, it has to be proved that the loss or injury was caused not on account of an honest error of judgment or mistake, but on account of negligence on the part of the doctor, the hospital or the medical staff. In some cases, the negligence is obvious (where a surgeon leaves behind an instrument in the body of the patient, for example), but in most cases, it is not. The patients or their relatives have to put together strong evidence, and if necessary, even the opinion of experts. Mostly, they are unable to produce any evidence, therefore the consumer courts depend on opinion of specialists. However, getting them to testify is one of the most challenging aspects of medical negligence suits. According to the apex consumer court, in many cases, despite the best efforts of the complainants, the doctors do not appear before the courts because they do not want to testify against their peers. Even where the court issues summons to help the consumer, the doctor does not appear. There is also another problem. If a doctor agrees to come, he or she has to spend a considerable amount of time in prep aring for the appearance. And it would also mean spending considerable amount of time at the consumer forum. So they would expect the complainant or the court to at least meet their travel expenses and also pay honorarium. Many consumers are not in a position to do this. All this eventually ends in the consumer losing the case. Keeping some of these problems in mind, the apex consumer court has suggested that the consumer courts at the district and the state level prepare a list of panelists who may be summoned for such cases and also create a fund for the purpose so as to ensure that they are paid a decent remuneration for their work. In fact, at the two-day meeting of the Presidents of State Commissions and Secretaries in charge of consumer affairs in various states and Union Territories, held in New Delhi last month, this was one of the main issues that came up for discussion. And it was obvious from the gathered medical professionals, who were invited to speak there, that even among them, opinion was divided on the issue. While a doctor from a private hospital suggested that expert witnesses be kept anonymous (an idea that was immediately rejected), another from the All-India Institute of Medical Sciences emphasised that a doctor’s duty to the patient came first and this included the duty to depose before the court as an expert witness. His duty to his fellow-professionals is secondary. Unfortunately, the number of medical professionals who share this view is relatively small. The solution lies in
funding and encouraging some of the NGOs (one or two of them are already
working in this area) in the health sector to provide the necessary
assistance—including research backup and experts— to consumers. The
Consumer Welfare Fund can be utilised for this purpose. |
