Malpractice or Poor Judgement? The practice of medicine has never claimed to be an exact science.

In f act, it is very much a hit-and-miss situation. Taking into account these above factors, India seems to be on a destructive trend regarding their level of healt h care. Ever since private medical services fell under the Consumer Protection Act (COPRA) in April 1993, the number of malpractice suits filed against doctors has begun to soar. For example, in Kerala, approximately 1800 cases (15% of th e total number of cases) have been filed. As Dr. Dipak Banerjee of the Indian M edical Association puts it: "It's degenerating into a kind of witch-hunt." For years the community of doctors across India was immune to charges of malpractice, but the tide has begun to turn. Doctors are now having to dish ou t larger sums of money in order to insure themselves adequately. Insurance comp anies have caught on as well, raising the price of malpractice insurance on most doctors. For instance, a doctor who would have had to pay Rs. 125 annually now has to pay up to Rs. 1500. These costs will only be passed along to the patien ts in the long run, and the condition is only going to worsen. Take for example the United States, where surgeons annually pay an average of $75,000 on insuran ce premiums. On top of these premiums, doctors who practice very defensively ad d as much as $21 billion US to the health care bill every year. Twenty percent of the tests prescribed by doctors were not necessary, but they are the result o f defensive practising by doctors who do not want to be held liable. This condition, already appearing in India, could become the downfall of their present health care industry. Doctors are being forced to "look upon eve ry patient as a potential litigant." There is likely going to be a tremendous r ise in the cost of treatment as doctors begin this new wave of defensive practis ing, in which a series of expensive tests are carried out before any diagnosis i s made. Quoting Dr. Chockalingam (Chairman of the Indian Chapter of Royal Colle ge of Surgeons), "If a patient comes with a headache we may now order a CT scan lest we miss a brain tumour... We now have to see whether a patient comes alone for consultation or brings along his advocate." This problem could lead, and has led, to many others. Doctors may shun complicated cases where risk is high due to the delicate nature of the procedure , so as not to be hauled to court. This refusal to treat patients has already taken its toll on those involved in motor vehicle accidents, whose treatments ar e often very tedious. This brings us to the fulcrum of the issue: trying to ho ld doctors accountable for their actions. Is poor service better than no servic e at all? Is the case criminal negligence - or just a genuine error in judgemen t? This entire matter revolves around a central point in the Consumer Prote ction Act-- section 2 (1) (o) which declares "services means service of any desc ription which is made available to potential users... It does not include rende ring of any service free of charge or under a contract of personal service." Th is statement clears government-run hospitals and doctors of any wrong-doing, du e to the fact that much of their service is rendered free of charge. However, t his does not clear the private sector hospitals which now perform approximately 70% of all out-patient services. Even still, the main problem with COPRA is its tendency to make doctors solely responsible for poor treatment. L. M. Kapur, p resident of the Association of Medical Consultants, describes the situation: "Doctors are just 25 per cent of the input for treatment. There are para-medica l staff, blood banks, nurses, ward boys, poor infrastructure facilities, equipme nt and even patients themselves that could be responsible for poor results. Yet we are becoming the scapegoats for everybody's woes." Another major problem is that this prestigious profession is being piled in with a whole range of other services. This has led to speedy trials in cons umer courts, whose panels are comprised of people who do not have the knowledge to differentiate between genuine malpractice and errors in judgement. As well,

consumer courts advocate a "Yes/No" approach, while medicine has many "grey area s" for treatment. What really irritates doctors is the fact that under COPRA, t hey are treated like other services such as those which provide entertainment an d food. However, the services that they supply should be more than proof that a n alternative system of review of medical conduct should be developed. Before the medical services fell under COPRA, patients had two major rou tes by which to file claims of malpractice: The Medical Council of India, and c ourts of law. Patients did not prefer to go to courts of law due to their lengt hy trials and high costs. The Medical Council had the power to suspend doctors for negligent acts. However, because the Council was comprised mainly of doctor s, they were very hesitant to discipline their colleagues. Also, the Council di d not have the power to compensate the "victims" of malpractice. This is a serious problem that should be dealt with immediately. Before the situation gets out of hand, and treatment fees go through the roof, the gov ernment should appoint a new panel specifically for the review of litigation sui ts against doctors in private practices. The panel should be composed of the fo llowing: doctors, medical consultants, lawyers and upstanding members of the co mmunity. This type of panel would lead to less bias towards both the patient an d the doctor. Allowing the present situation to continue will only lead to the eventual destruction of the Indian health care system.

References: India Today, June 1993, p. 95 - 100