The need for capping of compensation on alleged medical negligence cases

The need for capping of compensation on alleged medical negligence cases

75 percent doctors reveal that they have faced violence at some point in their lives; either by the disgruntled relatives of a patient or someone else

New Delhi, 15^th November 2015: While the medical profession is considered an extremely noble one, it is also the most vulnerable to acts of violence and false allegations. The reasons for this include the inability of people to understand that while a doctor saves lives, he is also a human and can only do his bit to save someone and cannot change what is inevitable.

Subjecting a profession as crucial as this to the Consumer Protection Act is detrimental to its effective functioning for it creates unnecessary fear amongst the doctors and distrust amongst the patient community. As per the laws presently any amount of compensation can be provided for a medical negligence case and the law favors the most affluent section of the society.

Recently the Supreme Court of India awarded an amount of 11 crore rupees as compensation for medical negligence in a case. This judgment has caused a sense of panic among the medical professionals in our country. Subsequently in three more cases, the compensation awarded has been more than a crore. This has already resulted in a huge increase in the number of cases filed (several of which are on frivolous grounds) as well as a significant increase in the premiums paid to insurance companies.

Expressing their concern, Padma Shri Awardee Dr. A Marthanda Pillai – National President and Padma Shri Awardee Dr. KK Aggarwal, Honorary Secretary General IMA in a joint statement said, “Indian Medical Association (IMA) considers this as a very serious matter, and we fear that this may even result in increase in the expenses on medical care.A review of the literature by IMA shows that the process of capping of compensation of medical practice lawsuits has been well established in developed countries, and India needs to adopt the policies being practiced in developed countries to its requirements and can benefit greatly from their experience. In this regard, we have appealed to the Health Ministry who in return has set up an inter-ministerial committee to look into this matter in the coming six weeks. We are hopeful that this will help bring about amendments in the present act to cap the maximum allowable compensation in any case of medical negligence. Whilethere is a capping of Rs 2 lakhs for sterilization deaths and Rs 30,000 for sterilization failure, the government should devise solution for other kinds of medical negligence as well. ”.

IMA also feels that the following are important while dealing with medical negligence cases

• Mandatory screening of cases of medical negligence, before the case is admitted in the consumer court
• Mandatory provision of seeking expert medical opinion by the court before giving verdict on the technical issues
• Defining/ triaging the complaints into frivolous/ injurious/ grievous, etc. before submitting to the court of law
• Provision of penalty (to the Doctor/hospital) to be proportionate to the amount of compensation claimed
• The compensation is awarded on the basis of the income of the complainant. But irrespective of the income of the patient, the hospital always charges the same amount for services. Hence, the compensation should only be decided on the basis of the cost of the treatment.
• Healthcare Arbitrator: Just like insurance disputes are sent to arbitrators, an alternative dispute resolution mechanism can be looked into. The provision will be for providers and patients to submit disputes over alleged malpractice to a third party other than a court. This will help compensate victims faster, more equitably and with lower transaction costs (As of now the administrative cost of such lawsuits is approximately 53% of the total compensation claimed).
• Administrative Compensation Systems: It proposes to replace the current tort system with an administrative compensation system. The “health courts” model substitutes a specially trained judge as the finder of fact and arbitrator of law for the current system’s generalist judges and juries
• Judicial audits of the lower courts to assess fairness and judicious application of mind by the lower court
• A comparative analysis of the outcome of judicial verdicts given in past should also be carried out for a better understanding of the effectiveness of the compensations awarded to date.
• The legal profession is kept out of the ambit of consumer court. Hence, medical services should also be excluded from the consumer court.

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About IMA: Indian Medical Association is the only representative, national voluntary organization of Doctors of Modern Scientific System of Medicine, which looks after the interest of doctors as well as the well being of the community at large. It has its Headquarter in Delhi and State / Terr. Branches in 29 States and Union Territories. It has over 2, 53,000 doctors as its members through more than 1650 active local branches spread across the country.