Doctors’ body hails apex court order protecting them from legal action

February 18th, 2009 - 3:57 pm ICT by IANS  

New Delhi, Feb 18 (IANS) The Indian Medical Association (IMA) Wednesday hailed the Supreme Court’s ruling that a doctor or hospital can only be issued a notice after prima facie negligence is established. However, consumer rights activists feel it will give doctors undue privilege.
The Supreme Court Tuesday barred all consumer forums, courts and police from acting on complaints of medical negligence unless a doctor testifies about the possibility of alleged medical negligence in it.

“We direct that whenever a complaint is received against a doctor or hospital by a consumer forum or by a court, before issuing notice to the doctor or the hospital against whom the complaint was made, the consumer forum or court must refer the matter to a competent doctor or committee of doctors,” said a bench of Justice Markandey Katju and Justice G.S. Singhvi.

“Only after the doctor or the committee reports that there is a prima facie case of medical negligence, the consumer forum or the court should issue notice to the concerned doctor or hospital,” said the bench.

“This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent,” the bench said, adding: “We further warn the police officials not to arrest or harass doctors unless the facts clearly reveal a case of medical negligence, otherwise the policemen will themselves have to face legal action.”

Hailing the apex court’s order, IMA media in-charge Narendra Saini said: “We really appreciate the ruling as the medical profession is totally different from any other profession and a judge cannot make an opinion on medical treatment.

“Medical treatment is not like a mathematical equation where a particular input always gives a particular output. The treatment methodology can vary from doctor to doctor and you cannot adjudge negligence on one scale.

“If there is a negligence by a doctor then it should pass through a medical board who understands the methodology of the medical process.”

However, the decision didn’t find favour with a NGO working on the issue of consumer awareness.

“I think the ruling gives privilege to doctors. It is but obvious that a team of doctors will give a ruling in favour of doctors. I think the team can never be impartial,” H.K. Awasthi, legal adviser to the NGO Consumer Voice, told IANS.

“We want the Supreme Court to fix a time limit for the panel of doctors to submit its report and they should not keep sitting on it. Moreover, there should be a higher authority, perhaps at the ministerial level, that should oversee it,” said Awasthi.

The bench made the significant ruling while scrapping a April 2002 verdict by the country’s apex consumer court, the National Consumer Dispute Redressal Commission, which had ordered Martin F. D’Souza of Mumbai’s Nanavati Hospital to pay damages worth over Rs.700,000 to a bureaucrat for allegedly causing hearing impairment.

Working as an export promotion officer with the ministry of commerce in New Delhi, bureaucrat Mohammed Ishfaq had alleged in his complaint to the NCDRC that D’Souza had caused the loss of his hearing in 1991 by administering an overdose of antibiotic Amikacin while treating him for renal failure.

As per the apex court ruling, the NCDRC had held D’Souza guilty of medical negligence, ignoring a neutral and expert opinion of P. Ghosh of the All India Institute of Medical Sciences (AIIMS).

Ghosh had testified that the drug was administered only as a life saving measure, had been rightly used and there was no negligence on the part of D’Souza.

Setting aside the NCDRC ruling, the apex court said: “The courts and consumer forums are not experts in medical science and must not substitute their own views over that of specialists.”

The bench made a doctor’s testimony of medical negligence must for courts to act on complaints against doctors and hospitals, noting that bringing doctors under the ambit of the Consumer Protection Act and making them liable to pay damages for their alleged medical negligence has exposed them to frivolous complaints, adversely affecting their professional independence.

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