INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS VOLUME 4 ISSUE 3 ISSN DEFENCES TO DEFENSIVE MEDICINE: A LEGAL PERSPECTIVE AARTHI.

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1 DEFENCES TO DEFENSIVE MEDICINE: A LEGAL PERSPECTIVE AARTHI. S 1 CONCEPT OF DEFENSIVE MEDICINE Defensive medicine is the practice of departing from normal medical practices as a safeguard from litigation. It occurs when a medical practitioner performs treatment or procedure to avoid exposure to litigation on grounds of negligence or malpractice. It is damaging as it causes potential health risks to patients and increases healthcare costs. 2 It takes two main forms: assurance behaviour and avoidance behaviour. The former involves charging of additional, unnecessary services in order to provide documented evidence that the practitioner is abiding by the standard of care while the latter is to refuse to participate in high risk procedures. 3 Liability on doctors arises both under civil and criminal law through medical negligence. Under civil law, action for negligence can be initiated as a breach of legal duty to care. However, under criminal law, in which the degree of negligence is higher i.e., it causes death, legal recourse is taken through section 304 A of the Indian Penal Code, 1860 that provides for culpable homicide not amounting to murder. RISE OF DEFENSIVE MEDICINE IN INDIA Defensive medicine in India has been on a constant rise. In addition to the laws in favour of providing redressal to patients, it can be attributed to important landmark judgements that have paved the way for the same as descried hereunder. The judgment given by the Supreme Court in the VP Shanta case 4 served as a means to cause for unprecedented rise in the practice of defensive medicine. The primary issue raised in this case was as to whether the services rendered by medical practitioners came within the ambit of service as defined under the Consumer Protection Act, rd year student, B.A. L.L.B, School of Law, Christ University, Bangalore. 2 MS Sekhar, N Vyas, Defensive Medicine: A bane to Healthcare, 3(2) ANNALS OF MEDICAL AND HEALTH SCIENCES RESEARCH 295, (2013). 3 DM Studdert, MM Mello, WM Sage et al., Defensice Medicine among high risk specialist physicians in a Volatile Malpractice Environment, 293 (21) JAMA 2609, (2005). 4 Indian Medical Association v. VP. Shantha & Ors, A.I.R S.C

2 The Court conclusively held that service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act. It further held that in the event of any deficiency in the performance of such service, the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction. With the opening up of new fora to address patient concerns, the number of cases against doctors have increased drastically. The same was reiterated by Dr Girish Tyagi, Registrar of Delhi Medical Council when he said that Such complaints have been rising ever since the SC brought the patient-doctor relationship under the ambit of the Consumer Protection Act in In the last two years, the number of cases has doubled, from 15 a month to about Another landmark judgement that paved way for defensive medicine in India is that of Spring Meadows Hospital & Anr v. Harjol Ahluwalia 6. The Supreme Court observed that the Consumer Protection Act is a beneficial legislation that intended to confer some speedier remedy and must be liberally construed. The Hon ble Court further stated that: The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. 7 Hence, with a view to bridge the gap in the doctorpatient relationship and enable an easier pathway for patients achieving justice, the Court passed its judgement. Further, the Supreme Court in 2013 ordered the guilty doctors to pay compensation of Rs crores for administering the wrong medicine to a patient which subsequently caused her death. It is a landmark judgement for the sole purpose that this is the highest compensation doctors have been made to pay for wrongful death, in India s history. 8 5 Damayanti Datta, Appointment with Dr Death, INDIA TODAY, (Nov. 24, ), 6 (1998) 4 S.C.C Id. at paragraph 9. 8 Dr. Balram Prasad v. Dr. Kunal Saha & Ors., (2014) 1 S.C.C

3 Owing to the above landmark judgements and other judgements akin, medico-legal cases have gone up by 400 per cent in the Supreme Court in the last 10 years. 9 Doctors have become all the more cautious in their practice of medicine and have completely disoriented what was once a noble profession, to one where they are desirous of reducing their exposure to liability. This causes a breakdown in the doctor-patient relationship once the patients become aware of such a practice and tend to question the credibility of the doctors. PROTECTION TO DOCTORS AGAINST LITIGATION There always exists an imbalance in the doctor-patient relationship. Doctors, quite often, feel that they are targeted in terms of litigation pursued against them. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only are there practical difficulties in linking the injury sustained with the medical treatment but it is also more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. 10 In a judgement that has been often relied upon by Indian courts 11, Lord Justice Denning held that: we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure. Keeping this rationale in mind, various decisions by Indian courts have provided for adequate protection to doctors against litigation. 9 Damayanti Datta, Doctors in the Dock, INDIA TODAY, (Last visited Nov. 24, ), 10 Id. at note Roe & Woolley v. Minister of Health, (1954) 2 Q.B

4 An important judgement indicting the same was a criminal appeal heard before the Supreme Court of India in Jacob Mathew v. State of Punjab & Ors. 12 where the doctors were prosecuted for the lack of resources in a hospital that caused the death of a patient. The complaint as per record read as follows: The death of my father has occurred due to the carelessness of doctors and nurses and nonavailability of oxygen cylinder and the empty cylinder was fixed on the mouth of my father and his breathing was totally stopped hence my father died. It is general tendency to blame doctors at the drop of a pin. This landmark judgement stipulates the guidelines to be followed before launching a prosecution against a doctor for negligence. A part of the guidelines reads as follows: The criminal process once initiated, subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end, he may be exonerated by acquittal or discharge but the loss, which he has suffered in his reputation, cannot be compensated by any standards. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for the service, which the medical profession renders to human beings, is probably the noblest of all and hence there is a need for protecting doctors from frivolous or unjust prosecution. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against. 13 It also laid down certain rules in connection with protection of doctors against frivolous complaints. They are as follows: (i) A private complaint should not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of negligence on the part of the accused doctor. (ii) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical 12 A.I.R S.C Id. at paragraph 51,

5 opinion, preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial opinion applying the Bolam test. With regards to deterring frivolous complaints, it is important to note that Section 26 of the Consumer Protection Act imposes a fine of Rs.10, 000 on the complainant if the complaint is proven to be frivolous. The state consumer forum of Mumbai in 2015, awarded a doctor with a compensation of Rs.75, 000 for unnecessarily being dragged to court based on a frivolous case. 14 What is more, in Bombay, the court requires the complainant to provide attestation from two medical doctors that there is a basis for admitting the case. 15 Noting that frivolous complaints against doctors have increased by leaps and bounds, the Supreme Court in the case of Martin F D souza v. Mohd. Ishfaq 16 held that While this court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country particularly after the medical profession was placed within the purview of the Consumer Protection Act. It necessitated for complaints of medical negligence to be referred to a competent doctor or a panel of experts in that field before issuing notice to the allegedly negligent doctor. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. the Apex court said. Another important judgement of an international character is the judgement given by Justice Mc Nair in Bolam v. Friern Hospital Management Committee 17. It serves as a landmark decision as it lays down a standard test to be followed in deciding cases of medical negligence and is also popularly known as the Bolam test. Lord McNair reasoned that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. 14 R.F. Lambay v. Shanti Nursing Home, Mumbai & Dr.Prashant K. Pattnaik, CC No.313/ Anil Pilgaokar, Doctors and the Consumer Protection Act (CPA), 4(1) INDIAN JOURNAL OF MEDICAL ETHICS, 2 (1996). 16 A.I.R S.C (1957) I W.L.R. 582: (1957) 2 All E.R. 118 (Queen s Bench Division). 14

6 While attributing medical negligence in situations involving special skill or competence, Lord McNair held that: The test is the standard of the ordinary skilled man exercising and professing to have that special skill... A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. While deciding whether the medical professional is liable to prosecuted against, certain principles are to be catered to. This was laid down by the Supreme Court in the case of Kusum Sharma & Others v. Batra Hospital & Medical Research Centre & Others 18. Some of the relevant principles (as have also been held in other cases akin) can be summarised as follows: The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. 19 A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. As initially laid down in the Bolam case, in the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. It is imperative that the doctors must be able to perform their professional duties with free mind. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient. 20 The medical practitioners also have to be saved from complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly C.T.J Laxman Balakrishna Joshi v. Trimbak Bapu Godbole & Anr, 1969 S.C.R. (1) Jacob Mathew v. State of Punjab & Ors, A.I.R S.C. 3180; Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others (1996) 2 S.C.C. 634, Laxman Balakrishna Joshi v. Trimbak Bapu Godbole & Anr, 1969 S.C.R. (1) 206; Dr. Subramanyam & Anr. v. Dr. B. Krishna Rao & Anr., II (1996) C.P.J. 233 (NC) 15

7 private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings against the medical practitioners deserve to be discarded. 21 Further, the Hon'ble National Commission on a question of medical negligence in the case of Dr. Subramanyam and Anr. v. Dr. B. Krishna Rao and Anr. 22 made an important observation as follows: The principles regarding medical negligence are well settled. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment. If criminal negligence is to be attributed to a doctor, the Supreme Court held that the standard of proof is so high that it ought to be described as gross negligence or recklessness. Criminal liability will not be attracted if the patient dies due to error in judgment or accident. 23 As a deterrent to unnecessary litigation, the burden of proof of claim of medical negligence and the resultant deficiency against the doctor lies on the patient. 24 The law requires a higher standard of evidence than otherwise, to support an allegation of medical negligence. 25 Courts have adjudged that the complainant must also produce expert evidence to substantiate his allegations in order to hold up a case against doctors. 26 Another form of protection accorded to doctors is acts done in good faith. Sections 88, 92 and 370 of the Indian Penal Code, 1860 gives adequate protection to professionals who have acted in good faith. The above legislations and interpretations of courts clearly establish that doctors are adequately protected against litigation. 21 Paramananda Katara v. Union of India (1989) 4 S.C.C (1996) II C.P.J. 233 (NC). 23 Suresh Gupta (Dr) v. Govt. of NCT of Delhi, (2004) 6 S.C.C Calcutta Medical Research Institute v. Bimalesh Chatterjee, 1999 C.P.J. 13 (NC); Philips India Ltd. v. Kunju Pannu A.I.R Bom K. Murthy, Medical Negligence and the law, 4(3) INDIAN JOURNAL OF MEDICAL ETHICS 116, (2007). 26 Dr. Manjit Singh Sandhu v. Uday Kant Thakur & Ors., 2002 (III) C.P.J

8 CONCLUSION The ultimate aim of the Legislature in drafting laws and the Judiciary in solving disputes is to rationally bridge the divide between plaintiffs and defendants. The Supreme Court by bringing the medical profession within the ambit of services under the Consumer Protection Act, simply opened up easier mode of redressal to the patient for whom, remedy would ve otherwise been difficult. 27 The argument that this move would increase the practice of defensive medicine was brought up. However, the Hon ble Court dismissed it and held that it brought no change in the substantive law but merely opened up new fora for redressal. This step was a move in the right direction. Doctors, playing a pivotal role in the life and death of a patient, have to act within necessary confines and if not, be held accountable for the same. The increasing number of law suits pursued against doctors primarily serve as a deterrent against them resorting to malpractice and causing them to be more vigilant in their practice. However, owing to this fear of litigation, doctors resort to practicing defensive medicine which has various negative repercussions such as increase in healthcare costs, poses a potential health risk to patients, causes inefficiency in emergency situations etc. Doctors often fail to understand that the law not only strives to protect the patients but is also equally concerned about its doctors. Through the various case laws cited above, one can infer that there exists a reasonable amount of autonomy with the doctors in the practice of medicine. So long as the doctors are vigilant and acting rationally by virtue of the knowledge that they possess in that subject, they do not have to succumb their patients to defensive medicine. Medicine being a profession more than a service does not always seek the desired end result. The Courts are aware of the same and will not penalise a doctor merely because of his failure. 27 Id. at note 3. 17

9 Hence, by virtue of his knowledge in the subject, in the capacity of a reasonable, prudent doctor, if he is of the view that a particular diagnosis is correct, he will not be prosecuted against merely because he did not rule out all the possibilities by prescribing more tests to the patient so long as it is in correspondence with any other competent doctor in that subject. Based on the same rationale, doctors don t have to boycott risky cases that increase their exposure to litigation either. This, therefore, should prevent the doctors from resorting to defensive medicine as they are adequately protected against. Despite there being adequate protection provided to doctors by virtue of interpretation of various case laws, the onus is on the Legislature and the Medical Council of India to draw up a set of standard specialised protocols that are to be followed by all doctors in that specialisation. This will completely remove an innocent doctor s exposure to litigation thereby putting an end to defensive medicine. 18