Medical Malpractice in India and in General

Master of Health Management

LWN164 Health Care Law and Ethics

Assessment Item No. 3

Abstract:

The interrelationship between medical ethics and the law are perhaps nowhere as starkly obvious as in the domain of medical malpractice. Ethical and legal conduct and practices regularly operate harmoniously however in cases of medical malpractice ethical standards and issues encompassing therapeutic risk can clash. Some examples include disclosure of mistakes; quality change practices; non-adherence to professional standards; managing patients who act against therapeutic guidance; and the different assurances of Good Samaritan laws. Malpractice cases may be further complicated when doctors oversee the investigation process. For these reasons, research into medical malpractice in India is timely to understand the causes, prevalence, current processes and may provide solutions for improved practice. The literature review will specifically consider the Legal and Ethical side of Medical malpractice in India and in general, with a critical evaluation of the legal system, approach to ethics, the implications of the failure of the medical malpractice system for the health system and case reviews from an Indian perspective.

Causes of Malpractice in India

Main points will include:

• Private Hospitals, often with profit as their primary aim, utilize a system of incentives and disincentives to push specialists to over-bill, sometimes unethically.
• With places in the financed government medical schools limited, aspiring medical students often choose private Medical universities that charge high fees. This tempts doctors to work in private hospitals to recover their costly investment in therapeutic training.
• Overcharging has further implications for health insurance. Unethical practices are a distress to individual patients and organizations, on account of salaried employees who get health coverage benefits from their managers. Insurance premiums are arranged intermittently and the rates are chosen on the basis of earlier years’ claims. The more expensive the claims one year, the higher the premium will be the next year.
• In this way, patients or their employers (if insurance is part of a salary package) need to an indirect way bear the rising cost health insurance premiums. The insurance agencies rarely question claims unless their net installment commitments surpass the net premiums. Insurance providers have devised approaches to confine their general liabilities, for example, capping installments for the treatment of particular sicknesses. If everything fails, Health Insurance Company raises the premium for family cover to compensate for a low return in corporate health coverage.
• Thus, medical specialists, private hospitals, pharmaceutical, and insurance agencies are profiting at the cost of individual patients and enterprises who give the insurance advantages to their employees in a largely unregulated healthcare market.

The Way Forward

The Medical Council of India is inefficient in checking malpractice and corruption in the medical field and may be disbanded soon. An arrangement of standardized treatment protocol may help control malpractice, however that may likewise constrain specialists. Plus, standardized treatment protocol may raise the cost of treatment. The preferred hospital network system has improved convenience; however it is insufficient to control corrupt specialists and clinics. Tweaking the system of incentives and disincentives, enhanced access to data and, thus, a more straightforward healthcare services market can end unethical therapeutic practices.

Main points will include:

• Incentives: Increasing the supply of seats in government medical universities and capping fees will decrease investment costs for medical students and thus lessen the incentives to work in private hospitals, which are frequently run not by doctors but rather by MBAs. Lowered debt will lessen the motivating factors for doctors to cheat and overbill.
• Access to data and transparency: Mandatory video recordings, in addition to archiving and sharing the recording to patients or their representatives, will make specialists responsible. At present, private health facilities should distribute the qualifications and experience of top specialists. That practice should be extended to incorporate each specialist’s record in treating patients. For example, a gynecologist’s profile must show the number and type of deliveries supervised. Such data will help patients make informed choices about which specialist to go to for treatment.

The accessible, online rating and positioning of doctors in fraud-prone specialties, for example, kidney transplants, gynecology, and cardiology, by third party independent agencies can be useful. Similarly, rating hospitals in light of their basic infrastructure, charges, and a few markers of ethical business practices, such as the number of medical malpractice suits filed can guarantee improved conduct. The capping of fees will prevent well-regarded health care providers from overcharging.

• Disincentives: Aggrieved patients ought to be encouraged to take their grievances to consumer courts, which are less expensive, speedier, and don’t require legal counselors. Corporations, particularly the larger ones with greater insurance premium bills, are encouraged to hire in-house specialists and medical lawyers to explore whether they are profiting by unethical specialists, clinics, or insurance agencies, and take suitable remedial actions.

The above measures can check a large portion of, but not all, unethical practices. For genuine infractions, stringent punishments including fines, detainment and permanent disbarment, still might be required.

The Importance of Health Law:

The Medical Council of India (Indian Medical Council Rules, 1957) has a redress system that can offer disciplinary action against misconducting specialists after appropriate investigative methods. The harassment of specialists who are falsely implicated in negligence has been curtailed by the Supreme Court, which has issued guidelines for the criminal charging of doctors (Rule 4 in Order XVIII of Consumer Protection Act, 1986). The medical profession that was once viewed as respectable is presently considered alongside other professions as liable for paying for damages. The patients who demanded refunds for alleged medical carelessness resorted to the civil courts. Public awareness of medical malpractice in India is developing. Hospital administrations are progressively confronting complaints in regards to the standards of professional competence, facilities, and the suitability of their therapeutic and diagnostic strategies. After the Consumer Protection Act (1986), has taken effect, a few patients have filed legal cases claiming the specialists were negligent in their treatment, and received compensation. Therefore, various legal decisions have been made on what constitutes negligence and what is required to prove it. The review will focus on why laws are failing in India, why the laws are not strict enough to put an end to malpractice and who is responsible, the health industry, management, the public, the government or the physicians themselves?

The legal issues will include:

• The fundamentals of medical malpractice and negligence, identifying malpractice and excluding cases with poor outcomes but no negligence.
• Changing ideas of informed consent.
• Practical issues of medical negligence with cases from the Indian Courts.
• Investigating why individuals make medical negligence cases.
• Approaches to manage medical accidents.
• Causes of increase in medical carelessness.
• Fundamentals of therapeutic liability in India

Medical Ethics:

The medical profession in India is at intersection, confronting numerous ethical and legal difficulties. The fundamental values of medicine insist that the specialist’s commitment is to keep the patients interest above everything else. The vital issues of autonomy, justice, confidentiality, non-maleficence, and beneficence are key elements that ought to direct the day to day practice of the specialist. The ethical guidelines of medical practice given by The Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, (Code of Ethics Regulation, 2002) are aimed at strengthening the ethical measures among enlisted medical experts in India.

Points that will give basic insight into solutions to ethical issues in medical practice:

• Improving relationship between patient and doctor.
• Ethical training of postgraduates and undergraduates in their therapeutic training.
• Challenges associated with modern medical practice.
• Coverage of Doctors and Hospitals under Consumer Protection Act (Rule 4 in Order XVIII of Consumer Protection Act, 1986)

Research Methodology:

Professional negligence by a health service provider has implication for both the legal and health profession. Avoidable medical injury increases the cost of treatment, while negligence claims have been blamed for further increase in cost of health care in India. This research is to analyze medical malpractice legislation and its consequences on stakeholders, for example, the health care consumer, the medical professionals, and the legal community. A thorough analysis of researches, articles and journals based on liability of hospitals in medical negligence, an analysis of medical negligence and law in India, Breach of patients trust in medical negligence, analysis and interpretation of medical negligence. The research will include arguments supporting the ethics and laws in medical malpractice as well as how laws are misused against the medical professionals by the patients for financial gain.

• Causes of medical malpractice:

1. Medical malpractice– (Sloan & Chepke, 2008 p. 302-303)
2. Communication gaffes: a root cause of malpractice claims- (Hutington and Kuhn, 2003 p. 157-161)

• Solutions to Medical Malpractice:

1. Progress in Medicine: Compensation and medical negligence in India: Does the system need a quick fix or an overhaul?– Chandra and Math, (2016)
2. Malpractice: Problems and Solutions- (Bernstein, 2013 p.372-378)

• Importance of health law and legal issues in medical malpractice:

1. Journal of health and life sciences law- A Better Approach to Medical Malpractice Claims.

(Boothman, Blackwell, Campbell, Commiskey, and Anderson, 2009, p 125-159)

2. Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defense – A legal perspective. – Pandit & Pandit, (2009)

• Ethics in medical malpractice:

1. “Health Law and Medical Practice”– Chesnokova and Arina Evgenievna, (2016)
2. “Ethics and Medical Malpractice“- Dougherty, (1990).

• Case Reviews:

1. “Important medical negligence cases in India”– Yadav, (2014)

References

Bernstein, J. (2013) Malpractice: Problem and Solutions. Clinical Orthopedics and Related Research 471(3). Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3563820/

Boothman, R. C., Blackwell, A. C., Campbell Jr, D. A., Commiskey, E., & Anderson, S. (2009). A better approach to medical malpractice claims? The University of Michigan experience.

Chandra, M. S., & Math, S. B. (2016). Progress in Medicine: Compensation and medical negligence in India: Does the system need a quick fix or an overhaul?. Annals of Indian Academy of Neurology, 19(Suppl 1), S21.

Chesnokova, Arina Evgenievna (2016). Health Law and Medical Practice. AMA Journal of Ethics, 18(3),197.

Code of Ethics Regulation, (2002). Published in Part III, Section 4 of the Gazette of India, dated 6th April, 2002. Retrieved from http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx

Consumer Protection Act (Rule 4 in Order XVIII of Consumer Protection Act, 1986). Bare acts ,Code of Civil Procedure, 1908 ,Order 18 Rule 4. Retrieved from http://www.lawzonline.com/bareacts/civil-procedure-code/order18-rule4-code-of-civil-procedure.htm

Dougherty, C. J. (1990). Ethics and Medical Malpractice. Creighton L. Rev., 24, 1233.

Hutington B. and Kuhn N., (2003) Communication gaffes: a root cause of malpractice claims 16(2): 157-161. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1201002/

J Health Life Sci Law, 2(2), 125-159.

Pandit, M.S. & Pandit, S., (2009).Indian Journal of Urology 25(3): 372-378. Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defense – A legal perspective. https://dx.doi.org/10.4103%2F0970-1591

Sloan, F. A., & Chepke, L. M. (2008). Medical malpractice (pp. 302-03). Cambridge, MA: Mit Press.

Yadav S., (2014) “Important medical negligence cases in India”. Retrieved fromhttps://blog.ipleaders.in/important-medical-negligence-cases-india/