Patients are now suing doctors at an alarming rate : Mahendrakumar Bajpai

16 March, 2016

Mahendrakumar Bajpai, Advocate, Supreme Court, New Delhi, talks to ETHealthworld about the growing number of medical negligence cases that are being reported today and how this is going to affect the healthcare industry in a big way.

1. How are things evolving by way of medical negligence in India?

The overall condition today is that Indian patients still treat their doctors as incarnation of gods but things are changing at a very fast pace. Patients are now suing doctors for alleged negligence and challenging the expertise and skills of the doctors. I am specifically referring to cases of misdiagnosis, delayed diagnosis that have been reported in various quotes in India.

Our statistics reveal that these cases have doubled since 2014.This points out to the fact that the patients are litigating more and are getting well informed. So even in the medical science aspect the patient is challenging the doctor.

2. Why are doctors resorting to defensive medicines ?

Medical negligence is slowly becoming a contagious issue especially for the healthcare providers. Doctors and Hospitals are apprehensive about the legal problems as they are actually facing such problems. The overall situation does not seem good and the implication is that the cost of health care is bound to increase in the days and years to come. One reason for that would certainly be medico-legal problems.

Doctors are resorting to defensive medicines, giving medicine not because patient needs it but simply because it will protect the doctor from a legal problem tomorrow. The question is can a country like India afford that. These are few implications of rising costs of medical negligence that the country may have to face in future.

3. Are existing laws in place or do we need changes to address the current scenario?

Bolams law is still applicable not only in India but also across the world where modern medicine and modern law are applicable. One feature or change that we have observed in Bolams law is that today medical expert opinion is not syco signed. So the quotes are even dissecting a medical opinion given by another doctor in court and at times are holding that the medical opinion is incorrect and therefore ought to be discarded.

4. Today there is a surge in cases of medical negligence being filed. It is becoming more like a trend. Why so ?

Some features can be observed and especially in the patients of northern parts of the country. Patients are filing cases of medical negligence simply because they want their fees to be waved off as they want concessions and doctors and hospitals under pressure are waving off fees. This is a dangerous trend for the overall healthcare industry and appropriate measures need to be taken to contain this and address this.

5. Should there be a cap on non pecuniary compensation, how will it help?

It is a debatable issue whether cap on compensation should be there or not. There is one school of thought which says compensation should be capped as in the US. In a case where 11 crore rupees compensation was granted, only 10 lakh rupees was given as non pecuniary compensation. Indian codes anyway are not giving compensation for non pecuniary loss cost to the patient.

There can be no law which can cap the compensation that the codes have to provide to a patient who has undergone a surgery or has taken medicine in a private setup. We don't know what policy may come in place for capping compensation but capping non pecuniary compensation will not help the cases of medical negligence.

6. What are the reasons behind the increase in the number of patient taking issue to the court?

The reason why we see the patient ultimately reaching in court could be that the doctor does not have enough time to give to the patient. Second is commercialisation of medicines. With commercialisation, the focus of the doctor or hospital is always on making money. So a profession which was there to provide care has lost that human touch.

7. Your suggestions to improve the current scenario?

As of now things are not moving the right way they ought to have moved. Some awareness amongst the patient is also needed. Patient must be aware that simply because you have money or you have paid money, medical science does not have answers for all your problems. In spite of the best doctors and best facilities things may go wrong and the doctors may not have an explanation.

As far as India is concerned, doctors are unaware of the legal provisions and there is nothing by which a doctor can become aware of the legal structures. The MCI and Government of India need to bring new regulations as far as medical practise is concerned. An eye has to be kept otherwise we will go the US way where billions of dollars are paid as compensation and it is not good for a developing economy like India.