The relationship of trust and respect between doctors and patients has turned into one of suspicion and animosity. There is an increasing concern about making the medical profession accountable. DR. J. N. Jindal, the Head of the Department of Neurosurgery at the Goa Medical College, will address the concerns of both patients and the medical profession in a series of articles beginning this issue.

IT IS amazing the little harm that they do, when you consider the opportunities they have” . - Mark Twain

THE TRADITIONAL CONSENSUAL and cordial relationship between doctors and patients has now turned adversarial. The extension of the Consumer Protection Act to the services rendered by medical professionals have made the doctor-patient relationship confrontationalist. Historical concerns about medical accountability have become justifiable, but since medical negligence is not finitely definable several issues have arisen. On the one hand the legal fraternity and the courts there have been expressing difficulties in deciding the medical negligence cases due to the highly technical nature of the issues involved. On the other hand, the fact that they are now legally accountable has rendered medical professionals excessively cautious. They have started practicing defensive medicine. A consequence of this is that patients are subject to endless diagnostic tests sharply escalating the cost of Medicare. An anomaly in extension of the Consumer Protection Act to medical professionals is that by virtue of the very nature of the Act compensation can be claimed, only if fees are levied. This takes out of the purview the large number of underprivileged patients who access free Medicare from the government and Municipal Corporations.

The concerns regarding medical accountability is not a recent phenomenon. The public has been concerned with the accountability of medical professionals since the time of inception of this profession. This is because the medical profession has always had clout with rulers and some of the black sheep tried to exploit this proximity for petty personal gains, thus bringing a bad name to the profession. Historically, as far back as 17 th Century B.C., Hammurabi (1726 – 1686B.C.) the sixth king of the first dynasty of Babylon laid a code of ethics in medicine. It clearly spells out instructions for the conduct of physician. Professional fees were related to the social rank of the patient. Incompetence and negligence were punished by draconian laws. Some of the examples of the laws in this code are:

AN INEXACT SCIENCE

“IF A DOCTOR has treated a man with a metal knife for a severe wound, or has opened a man’s tumour with a metal knife and destroyed man’s eye his hand should be cut off”. Similarly, it says that, “If a physician has performed a major operation upon a lord with bronze lancet and has saved his life, he shall receive ten shackles of silver, but if he caused the death of such a notable, his hand would be chopped off. A doctor causing the death of a slave would have to replace him”.

At the outset the terms ‘due diligence’ and ‘medical negligence’ have to be more precisely defined. Medicine, despite all the advances, may be in diagnostic or therapeutic areas are still an inexact science. Both diagnosis and treatment call for informed judgment on the part of the medical professional. Even the best-qualified medical professional can make an honest error in judgment. At the other end of the scale the gross commercialization of medicine has increased risk to the patients. An element of risk is inherent in any surgical procedure. Deliberate negligence, either because the medical professional is not qualified to deal with a specific case, or has been irresponsible and criminally careless have to be distinguished from lack of full disclosure on the part of the patient and inadequate medical history. There are large variations in the response of individuals and honest errors of judgment need to be factored in by arriving in at a judgment. 

A key issue is whether the principle of informed consent can be practically applied in the context of India. Informed consent implies that the patient is appraised of all possible risks at every stage of diagnosis and treatment. This demands and presumes not only a high level of general literacy but of medical literacy and awareness within the population. It also presumes that the medical service provider has the latest state of the art diagnostic equipment to be able to assess the risks. This also presumes ability and a willingness on the part of the patient to subject himself to the relevant tests. A comprehensive evaluation of the risks and the kind of complete and full disclosure is subject to many constraints.  

Medical accountability also requires documentation. It is vital both from the point of view of the patient as well as the medical professional that suitable proformas and procedures are put into place to be able to make the whole process of delivery of Medicare accountable. The innocence or the culpability depends on the documentation. It may also be necessary to ensure there is independent corroboration of the records maintained and a mandatory provision to make available copies of all relevant documents to the patient. Discharge papers tend to be woefully inadequate. 

NEGLIGENCE & ACCOUNTABILITY

A BASIC ISSUE is if the consumer courts in their present form are competent to hear and deliver judgment in a specialized area like Medicare. The situation is complicated by the fact that doctors are often reluctant to testify against their peers and colleagues. Both the legal fraternity and the judges are unfamiliar with medical procedures and even medical terminology. Should medical professionals be associated with the process of trial or cases of medical negligence and accountability? 

We must try to analyse what has gone wrong with the doctor-patient relationship. Why has there been so much commercialization of medicine? Has super specialisation helped the patient or not? We will also look into the alleged financial impropriety by medical professionals. Finally we will analyse the perspectives of patients, judiciary as well as the medical profession as to the medical accountability as it stands today. We will also look into the causes of medical negligence litigations and consequences thereof. Based on this we will try to evolve some guidelines so that the cordial relations between the medical profession and the patients return and both parties are at ease.

In the next few articles, I will try to discuss all the aspects of medical accountability in detail and we will also look into the pros and cons of the existing laws with some representative cases already decided by the courts. The aim is to appraise the public about their rights as well as impress upon them the difficult situation under which the medical profession in our country is functioning today. Critical comments, suggestions, queries from the esteemed readers will be welcome.

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