Issues Before the Medical Profession
(Including personal view points )
Legal aspects of medical practice have always constituted an important component of medical education. Standard books on Medical Jurisprudence contain excellent Chapters on ‘The Law in Relation to Doctors.’ Thus, from an early stage the ‘would be doctors’ are made conversant with the legal issues inherent in medical practice. The application of the Consumer Protection Act to the Medical Professionals has only served to bring into focus some of the legal liabilities of the doctors.
Mere mention of the Consumer Protection Act at any get-together or scientific meeting of doctors evokes their instant attention and all other conversation cases, giving rise to passionate exchange of opinion, experiences, fears, etc. and questions being asked about the implications of the application of the Act to the Medical Profession.
It is these questions and fears which are sought to be discussed in the succeeding paragraphs. By going through this section of the book conscientiously, much of the dread of the ‘unknown’ that is inherent in legal aspects of medical practice, especially in relation to the Consumer Protection Act, will be mitigated.
1. What was the necessity of the Consumer Protection Act, and its application to the Medical Profession ?
This is the foremost question which comes to the mind of the doctors. This necessity arose because the existing laws of the land which provide for action in cases of medical negligence under the Law of Tort and Indian Penal Code, have some well documented problems. These include the following : (i) Delay,which, in medical negligence cases, tends to be greater ; (ii) the cost of bringing an action, which is notoriously high in relation to the sums recovered in damages ; (iii) limited access to the courts ; (iv) success depends on proof of both negligence and causation ( which can be particularly difficult in cases of medical negligence).
Hence necessity to provide for an alternate system which would be easily accessible, speed and cheap, gave birth to the Consumer Protection Act. This Act was made applicable to the doctors because there are no provisions in the Indian Medical Council Act, 1956 ;
(i) to entertain any complaint from the patient ;
(ii) to take action against the Medical Practitioner in case any negligence has been committed ;
(iii) to award any compensation, etc. in case the negligence is proved.
2. Who is a consumer ?
Consumer is : (a) a patient who pays to get services of doctor /hospital ; (b) any person who pays for the patient ; (c) legal heirs /representatives of such patients ; (d) spouse, parents and children of the patient.
3. Does the service rendered by doctors / hospitals stand excluded because it is under a contract of personal service as distinguished from a contract for service ?
This is the key clause being disputed by the doctors. The judgements till date have held that the medical services rendered by doctors / hospitals for payment are covered under this Act as they are not Contract of Personal Services but Contract for Services. Contract of Personal Service involves ‘Master - Servant Relationship ‘hereunder :-
Master -Servant Relationship (as per National Commission Decision)
i) The employer’s (master’s) power of selection of his employee (servant).
ii) The payment of wages or other remuneration.
iii) The employer’s right of suspension or dismissal
iv) The employer’s right to control the method of doing the work.
Doctor-Patient Relationship (as per doctors’ contention)
(i) A patient /guardian has full power of selecting his doctor/hospital. He is not under any compulsion
(ii) A doctor is also paid remuneration and steps into the shoes of an ‘employee’during the period he gives treatment or performs operation.
(iii) The patients/guardians also have the right to reject the services of doctor/hospital (which is equivalent to suspension /dismissal) any moment they are not satisfied, they feel that they have a better alternative without any reason.
On the basis of these three criteria the relationship between doctor and patient is similar to master and servant. Patient can choose any doctor/hospital, go for treatment if the charges are suitable and reject the services at any moment without assigning any reason.
(iv) Coming to the 4th criteria, which has been considered as cardinal in distinguishing between Contract of personal service and Contract for Service is the EXISTENCE OF THE RIGHT TO CONTROL. This control is never 100% even in Master-Servant contract, as servant is not a machine. You can order a servant to suspend all other work and clean the utensils but cannot control his response, how quick and well he will clean the utensils, how many utensils he will break etc. We all know how much exactly, we can control the servant We all know the consequences, if we are rude, harsh, physically or verbally abusive with the servant.We have got to be polite with him and respect his sensibilities. We must distinguish between Master-Servant and Master-Slave relationship.
Medical professionals strongly feel that the relationship between Doctor - Patient is that of Contract of Personal Service,where they consider patient to be the master and themselves as servants with the exception that God has bestowed them with professional skill to serve the master (human body) with a difference. They do not deny accountability, not do they deny existence of erring hospitals, deviant doctors and malpractice.But, the percentage of this is too small to give to the general public daggers to run after doctors.
Medical professionals fully agree that efforts should continue so that the master (human body) can be served even better. If the master losses faith in them, their very existence will be threatened.
4. What exactly is the degree of control a doctor has over his patient ?
Kindly ponder over these aspects :A patient may show up very late in course of illness - some times in terminal stages.If consulting time / waiting time for consultation / treatment does not suit patient he is free to approach someone else.Patient may come without any record whatsoever of treatment already taken.
Patient may be hiding facts from the doctor. The Doctor does not have any foolproof method to know whether the history is true. Patient may question the probable diagnosis, drugs prescribed, their role, side-effects, cost, interaction etc. and may avoid taking the prescribed medicine.
After the consumer (patient ) leaves the doctor’s clinic with the prescription, can a doctor control subsequent actions ?
Will all the prescribed medicines be purchased?
Will the prescribed doses he administered at correct intervals ?
Will the full course of treatment be given ? What if patient takes treatment for only 2 days instead of 5 ?
Will other precautions advised be taken ?
Can the doctor control follow-up of patient ? Patient may not come at all or come according to convenience. Doctor does not know he has improved / deteriorated / gone elsewhere.Follow-up, which is cardinal component of medical management is entirely beyond the control of the doctor.Irregular treatment is tubercular patients, rheumatic heart disease, epileptics etc. is well known.
Patient may comply with doctor’s prescription but concomitantly use Homeopathic, Ayurvedic or Unani medicines, the interactions of which are not known. Patient may resort to magic / faith healing. How can a doctor control this ? A case of jaundice is advised certain tests, precautions and medicines. Patient may not bother about these and after leaving doctor’s clinic may go for "Jhara" (Magic healing ).In case of deterioration, how can a doctor’s service be held deficient ?
Some patients refuse investigations without which at times correct management is not possible.
Whenever a patient feels that he is not getting well with the treatment of a doctor/ hospital he is free to leave any moment, or to consult any other doctor. Most private hospitals permit consultation with any doctor the patient /attendants wish to. They can always question the ratinale of treatment, progress of illness during the course of treatment.
Doctor does not guarantee a diagnosis. It may be a provisional diagnosis or a differential diagnosis on which the treatment may be based.Doctor never guarantees a cure. He makes his best efforts because he knows that much more than anything else, his professional reputation is at stake.
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