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‘The
disciplines of law and ethics overlap and conflict’
 Dr
S V Joga Rao is the director and practicing advocate
with Pegasus Health Law Consultants, a law office exclusively
catering to the professional legal services of every
stakeholder in healthcare delivery. Armed with a doctorate
in healthcare law, his professional and research interests
include areas of criminal law, healthcare law, cyber
law and law of evidence. In an interview with Vijaya
K, Dr Rao details on the growing concern on legal issues
in medical practice in view of the extension of Consumer
Protection Act to medical profession. Excerpts:
Are
medico legal issues on the rise in India because of
CPA? What is the situation abroad?
Yes,
medico legal issues are on the rise. General perception
is that upsurge in medical law litigation in our context,
is only due to extension of Consumer Protection Act, 1986
(CPA) to medical profession. No doubt, CPA continues to
influence the litigation patterns pertaining to medical
practice but cannot be generalised that it is the sole
factor.
If
we examine our context in its social, economic, professional
and justice perspectives, the following factors and trends
are inferable in nature: 1. Social, where there is a growing
awareness about protection of patients’ rights and
consistent public claim for professional accountability
2. Economic, a rapidly dwindling public expenditure and
massively increasing private investment in healthcare
delivery and as direct consequence, both accessibility
and affordability of health care services have become
quite problematic for many people 3. Professional, the
ever-expanding frontiers of medical specializations or
highly technologically dependent medical practice 4. Justice,
where right to health is judicially interpreted as a fundamental
right. Abroad, medical professionals tread on a tight
rope. Whether it is Europe or USA, medical litigation
is always on the rise. And accordingly the medical professionals
not only take preventive care but also spend substantial
part of their earnings on insurance coverage as well.
A similar trend is clearly visible in our country also.
Can
medical audit help prevent legal issues in medical practice?
First
of all we need to know the process and premise of so called
medical audit. If the operating model of medical audit
focuses on legal and ethical compliance, there may be
a possibility of prevention. I seriously doubt whether
such models are available in our country. In view of its
significance, I think there is a deserving need for creating
a conceptual framework which exclusively and explicitly
deals with legal and ethical audit.
We
at Pegasus conceived a framework, which we call it as
Pegasus Medilaw Accreditation (PMA). The premise of PMA
takes within its fold the following processes: (a) in
accordance with legal and ethical compliance factors,
the medical establishment will be screened in the light
of applicable and relevant registration and clearance
formalities; (b) all the related institutional policy
formulation and structuring of protocols and documents
will be undertaken; (c) adequate and warranted capacity
building to the key personnel in the establishment will
be provided; (d) periodic monitoring and quality assurance
referral service will be offered and (e) in case of any
legal problem, required professional legal solution will
be rendered.
What
are your impressions on the existing guidelines for death
due to medical negligence?
As
of now, death due to medical negligence cases are prosecuted
under Section 304 A, Indian Penal Code, 1860. In civil
law, they are adjudicated under relevant principles of
tort law, which are uncodified in nature. As this provision
is part of general criminal law of our country, there
are some inevitable consequences and unavoidable procedural
formalities.
Applying
principle of negligence in a road accident, we will be
able to decide whether the driver is guilty of negligence
or no in the light of available benchmarks. But in case
of medical treatment, death on operation table need not
necessarily indicate negligence on the part of doctor.
The issue is, how the judges will decide and in the light
of what kind of benchmarks.
There
are no apparent and explicit guidelines. As a result,
the general reaction of the public is that the death is
only due to negligence on the part of doctor. If the aggrieved
relatives or friends of patient files FIR, the investigating
officer initiates the process, which ultimately results
in arrest of the doctor. This naturally poses a threat
to the professional reputation of the doctor.
In
view of these reasons, medical profession is now seeking
some kind of protection before the criminal prosecution
is initiated. According to them, the protection could
be in the form of a clarification to the enforcement authorities
to the effect that, whenever medical negligence related
death case is filed, the investigating officer must conduct
a preliminary enquiry during which he is expected to interact
with the senior doctors of the establishment or hospital.
Only thereafter, if he finds any reliable evidence, then
the concerned doctor can be subjected to the process.
Some feel there is a need for a separate statute which
exclusively deals with medical law issues.
How
has the MCI code of ethics been successful in tackling
medico legal issues?
Very
recently, the MCI has revised the related framework. Except
for female foeticide issue, all other clauses are quite
appropriate in the present day context. It is too early
to say whether the framework has succeeded in tackling
medico legal issues. One thing, we need to be very clear
--- laws or ethics are merely prescriptive in nature and
cannot succeed in resulting a positive change in human
conduct, unless they are internalized and consciously
implemented by the concerned members for whom they are
meant.
What
are the conflicting issues of ethics and law in medical
profession?
Within
their distinctive roles the disciplines of law and ethics
overlap and also in some aspects, conflicts are not uncommon.
One such area of conflict, is with regard to consent.
More specifically, law prescribes that compliance of particular
conditions reflect fairness of the process adopted. Accordingly,
the law states that if the procedure is followed, it is
legal and binding.
However,
still there may be a possibility of challenge from ethical
point of view. This kind of problem has come to fore in
two significant contexts, but related ones. They are,
hysterectomy of mentally deranged women and proxy consent
of parents on behalf of mentally retarded for the purpose
of organ donation only to benefit another member of the
family.
Do
we lack a provision for sound clinical judgment?
In
the eyes of law, a sound clinical judgement is always
construed as a matter of defence for the professional
concerned. Though the judgement results in suffering of
the patient, still according to the available judicial
interpretation, the doctor is not legally liable on that
count. However, the governing law in this regard is only
uncodified and definitely there is a need for codified
legal statute.
What
is the role of Pegasus Health Law Consultants in addressing
medico-legal issues?
Pegasus
focuses on health care law and ethics. We offer key services
like rendering of professional legal service, conducting
medilaw audit, training programmes and capacity building
measures, research and documentation and publication of
journals, texts, titles, commentaries and other legal
materials.
How
good is the medical indemnity policy for doctors. Is it
hassle free?
Difficult
to say that the policies are hassle free. The package
promises adequate service. But many doctors complain that
they do not receive any kind of service. Insurance companies
claim that they do not find competitive legal professionals
who are knowledgeable in this area of specialization.
As stated earlier, the doctors are more concerned about
the service part. Regarding claims settlement, I do not
think there is a major problem. |
