Hospitals Cannot Compel Patients to Buy Medicines from In-House Pharmacies; Doctors Referring Govt. Hospital Patients to Private Nursing Homes Could be Penalized

Mumbai, March 20, 2016: When Shenar Rehan was refused admission to the Cantonment General Hospital, Aurangabad little did she realize that her experience, while personally traumatic would set a precedent for thousands of patients across Govt. hospitals in India. The patient, in labor then, had sought admission to the hospital, but was directed to a private nursing home. When the aggrieved patient later approached the Courts, Hon’ble Dr. S. M. Kanitkar of the National Consumer Commission taking a harsh view on the practice not only imposed a penalty of Rs. 5 lakh but also observed that the Cantonment General Hospital Board can recover this penalty from the salary of errant doctors, CEOs, and staff, as per law.

“The unambiguous observation of Hon’ble Court that the hospital staff was ‘involved in referring poor patients intentionally to the private nursing homes’ and ‘the poor patients are deprived of essential medical services clearly shows that the courts have taken judicial notice of this widespread illegality and are seeking to address it,” revealed Adv. Mahendrakumar Bajpai, keynote speaker and a leading authority on medical laws at the 8^th Annual Medical Review held at Mumbai.

The Annual Medico Legal Review, held consecutively since 2009 by Institute of Medicine & Law (IML) has been analyzing the complete medico legal environment in the country, compiling comparative statistics of medical malpractice cases, examining current trends in medical malpractice cases and underlying reasons for increasing cases of medical negligence.

“As compared to the previous years, 2015 has thrown a number of noteworthy trends and judgments. For instance, it was also observed that more and more aggrieved patients sued ‘only’ hospitals and notably omitted doctors. Two interesting cases bring this anomaly to fore. The first from Andhra Pradesh (Dr. M. Sarojini Devi v/s Galla Jayanthi) wherein despite directions from the court, the surgeon who had performed the surgery negligently was not made a party by the patient and the court had no other option but to hold ‘only’ the hospital negligent. The second case was from Delhi reported from the National Consumer Commission (Himanchal Kumari & Ors. v/s The Govt. of N.C.T. of Delhi & Ors.). The hospital alleged and admitted in the court that the oncologist was negligent and not the resident doctor and the technician who gave radiation. The court agreed with what the hospital stated and did not hold the resident doctor and the technician negligent. But the hospital ‘only’ was held negligent as the oncologist was not sued by the patient,” added Adv. Bajpai.

The review also reported that complaints by patients forced to buy medicines from in-house pharmacies of hospitals were on the rise and that allegations related to delayed and improper diagnosis doubled as compared to the previous year. Filing of an unusually large number of cases of negligence against surgeons going on planned leave or absences immediately after a surgery were also observed.

In addition, in the year under review, Indian Courts continued with the trend of giving benefit of doubt to doctors; not questioning the correctness of medical records, except in cases of gross fabrications; and, courts continuing to hold that a wrong method or decision by a doctor does not necessarily constitute negligence. During emergencies courts were observed to be even more accommodating by overlooking and condoning deviation from standard protocol.

In 2015, the Courts also held that a doctor relying on a wrong investigation report of another qualified radiologist, sonologist or pathologist and acting accordingly is not negligent. It also deplored appeals in trivial cases and penalized appellants. “On the whole, the year was good as well as bad for doctors. The courts are hesitant in holding the healthcare providers negligent and are seeking more clear and convincing evidence from the patients. But once convinced that the doctor or the hospital has been negligent then the penalty that follows is heavy.”

Annual Medico Legal Review 2016 was presented by Supreme Court Advocate, Mahendrakumar Bajpai and chaired by Mr. Mayank Kshirsagar, Adv. Supreme Court, Dr. Atul Shah, Hon. Sec., Association of Plastic Surgeons of India and Dr. Mahesh Baldwa, Sr. Pediatrician & Medico Legal expert. The review in Mumbai will be followed by reviews in Kolkata, Hyderabad, Chennai and Bangalore. Participation in this event is by invitation only with about 80 – 100 invitees in each city. The attendees would also include Ministry Officials, Regulators, MCI Office Bearers, Judges of the National / State Consumer Commission, and press.

“Law is dynamic. Every single judgment passed each day has the potential to amend the existing laws. While these changes impact everyone, it has a wider implication for doctors. With the exponential rise in medico legal cases and ignorance not being a valid defense, it becomes imperative upon doctors to be abreast of changes in medical laws and take appropriate precautions,” concludes Adv. Bajpai.

Corporate Comm India (CCI Newswire)