Consumer Courts are dens of harassment: Medicos

Rita Dutta - Mumbai

The recent Supreme Court (SC) judgement exonerating doctors from criminal negligence under sec 304 A of the IPC seems to have emboldened medicos to take up cudgels against their “harassment” in Consumer Courts (CCs).

Leading the initiative is the IMA-national, which in collaboration with Consumer Co-ordination Council, is “exploring the possibility”of filing a review petition in the SC for amendment of the Consumer Protection Act (CPA), within a year and a half. Says Dr Chandrakant Joshi, chairman, CPA committee, IMA-national, “Through various medical journals, we will glean data on the harassment faced by doctors, before we go ahead with the petition.”

The situation is grave, claim doctors, with an alarming 1,800 number of medico-legal cases pending at the CCs in the state of Kerala alone. And even as doctors are given a clean chit in 95 per cent cases of medical negligence, a CC, say in a metropolis like Mumbai, annually witnesses filing of 30 cases related to medical negligence.

Catalogue of Complaints

The “harassment” stems from the consumer-friendly behaviour of CCs, which display leniency towards consumers, rue medicos. To begin with, CC’s practice of not summoning witnesses, not conducting cross examinations and not soliciting experts’ (read doctors for medico-legal case) opinion before hammering the final decision does not augur well with the medicos.

Even as a SC judgment, around two years back, stated that CCs need not rely only on the evidence presented to them, but could also summon independent medical opinion, the judgement is yet to reach the corridors of most CCs. Says registrar of Maharashtra State Consumer Disputes Redressal Commission, “We call witnesses and experts, only if both the parties approve, but it’s not mandatory.”

Kerala-based Dr P V George, immediate past president of IMA-national, questions the concept of a three-tier committee of CCs that gives verdict on medical negligence, sans knowledge of medicine.

To corroborate his stand, he cited a case of a patient in Kerala, who succumbed to a cardiac arrest following anaesthesia. When the patient’s family sued the doctor for medical negligence, the CC decreed that the patient died of starvation before anaesthesia, as advised by the doctor.

“The patient could not have died due to starvation prior to anaesthesia, as starvation is a must before anaesthesia” explains Dr George.

Medicos vehemently oppose CCs’ practice of accepting cases without any prima facie evidence of negligence. Says New Delhi-based Dr Vinay Agarwal, secretary general, IMA-national, “Suing a doctor without any prima facie evidence or screening leads to unnecessary travails.” Dr Agarwal had faced a case of medical negligence in 2003, which was quashed in 2004.

To add to the cup of woes, CCs bend rules to accept cases beyond their maximum time limit, which is within two years of receiving the defective service. Says Dr Ashit Naik, IMA, Balsad, Gujarat, “It is difficult for doctors having flourishing practice to maintain medical records beyond two years. If cases are registered after two years, then we are highly inconvenienced.”

If that was not enough, the consumer-appeasing CCs also known to accept cases outside their jurisdiction and sometimes not awarding compensation to the defendant in “frivolous or vexatious cases” under Section 26 of CPA.

Sample this. General practitioner Dr R M Shah took his wife to sonologist Dr Hemant Shah for sonography, as adviced by another doctor. But, when the sonography did not reveal any abnormality, Dr R Shah filed a case against Dr H Shah in the CC for conducting an investigation, which he claimed, could have been avoided. Though the case was dismissed as “frivolous”, Dr H Shah was not awarded the compensation sum of Rs 10,000.

Says an embittered Dr H Shah, “For three years of the trial, the complainant did not even come once in the court. I received a bad taste of life, for conducting a test as per request.”

In another case, a patient dragged an orthopaedic surgeon to the CC in Bede, for a failed fracture conducted outside Bede. According to the CPA, a complaint has to be lodged in the jurisdiction of the defective service, inform experts. After initial rounds of hearing, the doctor has appealled for change of jurisdiction.

The Chaos

Blame it on the backlog of pending cases, shortage of manpower and malpractice among lawyers (often referred as “ambulance chasers”), the CCs have become synonymous with snail-paced justice, with cases dragging on for five to six years. Explains Dr Arun Bal, founder member, Association for Consumer Actions on Safety and Health (ACASH), which has handled more than 400 cases of medical negligence since 1992, “On an average, the cases take 10 to 12 years to complete all the levels of the courts. Most of the cases that are against doctors do go upto the SC. Very few cases are settled at the district or state level.”

Cases are registered at the various CCs as per the claims made. The District Consumer Disputes Redressal Forum hears claims up to Rs 5 lakh, the State Consumer Disputes Redressal Commission hears claims between Rs 5 lakh and Rs 20 lakh and the National Consumer Disputes Redressal Commission entertains claims of Rs 20 lakh or more. The SC, which is the highest Consumer Disputes Redressal Commission, hear claims above Rs one crore.

The CCs, which were initially established for speedy redressal, are supposed to deliver judgement within 90 days. However, according to Dr Lalit Kapoor, chairman, medico-legal cell, Association of Medical Consultants, (AMC), “Giving adjournments has become the norm with CCs; ideally not more than one adjournment shall be allowed.”

“My activities were thrown out of gear because of the number of adjournments given to me,” whines Dr Agarwal. To which Kolkata-based Dr Sudipta Roy, president, IMA- national, adds, “It is a mental torture for us to face legal proceedings in court, with so many adjournments.”

The despair with CCs’ way of functioning is so acute, that experts even question the very existence of CCs. “If CCs are not capable of speedy redressal, why have CCs in the first place?” asks Dr Agarwal.

Consumer Court Vs Civil Court

The number of cases filed in CCs is on an upswing as aggrieved patients or their families prefer CC to a civil one. Apart from the belief that CC is pro-consumer, the other factors tilting a consumer’s choice towards CC are financial. “In the CC, the patient can file a case without the aid of a lawyer, can even defend himself or through an authorized representative,” says Dr Kapoor. And, for cases where the compensation is below 20 lakh, the complainant enjoys the luxury of not paying any court fee. In stark contrast is the Civil Court, where the consumer has to the pay court fee, lawyer’s fee and lose a certain amount of compensation as tax.

Are doctors, the only victims?

Agreed that doctors are victims of a consumer-friendly judiciary, but are doctors more vulnerable? Definitely not. According to a study conducted by ACASH for the period 1991 to 1999 and reported in Consumer Digest, of 5136 cases registered against varied professionals, only 236 were against medical professionals, which is 3.6 per cent of all cases reported.

Similarly, for the year 2004, while the total number of cases filed in the MSCDRC were 154, only 16 were medico-legal, which is less than ten per cent. Cases against builders and insurance companies top the chart.

Increase of medico legal cases

But, why this sudden spurt of medico-legal cases? It is to be noted that doctors, previously excluded from the CPA, 1986, were included in the purview of the CPA in 1995, after the SC judgment in the V P Shanta case.

Is it to do with heightened awareness about consumers rights? Partly. It is mainly attributed to poor communication skills of doctors, who do not take the pain of explaining the cause of failure of a procedure or death to patients or their kin. “Our ACASH findings reveal that many cases get registered due to professional rivalry. The average incidence of justifiable medico-legal cases in only about five per cent,” says Dr Bal. ACASH, a Mumbai-based NGO helps consumers and lawyers verify real medical negligence involved in a particular case.

Judiciary speak

When asked about the litany of charges against the judiciary, the register of MSCDRC, says, “Yes, we are pro-consumer. Is not that what we are supposed to be? But, that does not mean we are unfair to the defendants.”

Asked about the slow-paced judiciary, Dr Gopinath Shenoy, former judge, consumer court, Mumbai, said, “The judiciary is bogged down by the high volume of cases, in the absence of proper infrastructure and manpower.”

Agrees advocate Siddharth Shah of Mumbai of consumer court, “With population swelling by leaps and bounds, it’s difficult for the judiciary system to tackle cases with its existing number of courts and presiding officers.”

Does anyone gain from medico legal suits?

It is important to understand that besides the travails of doctors, medico-legal cases are not beneficial to patients or his family either. In only a slender five per cent cases, the complainants walk away with the handsome compensation.

But more than that, the surge of medico-legal cases has engendered defensive medicine- a practice whereby doctors order medical tests or procedures of doubtful clinical value to protect themselves from malpractice suits. The cost of the battery of tests, of course, is passed on to the patients.

Apart, from the suggestions mentioned in the box, what is required is establishment of councils on the lines of ACASH, having represention of both doctors and consumers, along with forging better inter-personal rapport between the two.

By inviting the Consumer Co-ordination Council for its opinion on the writ petition to the SC, the IMA-national has taken the first step in settling a dispute, which is getting murkier by the day.

rita_dutta@rediffmail.com