Correct documentation essential to tackle medical suits: Lawyers to docs

Addressing the gathering, advocates said that courts were ruling more in favour of medical professionals, but clear medical records for every aspect and procedure of treatment could be of help. 

However, documentation procedures in several hospitals across India are still a concern, said Mahendrakumar Bajpai, Advocate, Supreme Court. Advocate Bajpai, who is with the Institute of Medicine and Law, said, “We should also understand medical records are not just important for suits, but also for patients. In many hospitals in the country, reference letters brought by patients go missing and are not filed with the record. Consent forms are mere mechanical procedures and there is no clear indication of what are the alternatives available to the patient. Courts maybe ruling in favour of professionals, but if the important aspects are not recorded clearly by them they tend to get strict with them. In future, courts may not be as sympathetic as they are now towards doctors.” 

The previous year saw a steep rise in the number of cases filed and the medical negligence cases heard before the National Consumer Commission in 2015. Punjab topped the list with 24 per cent of the cases, this was followed by West Bengal (17 per cent), Maharashtra (16 %), and Tamil Nadu (11 %), respectively. The highest number of cases were filed against gynaecologists, followed by orthopaedists and ophthalmologists, added Bajpai. 

Some of the common allegations were patients being compelled to buy medicines from hospitals, surgeons going on leave immediately after the procedures, patients want every aspect of treatment to be addressed by that one specialist, allegations related to diagnosis and selection of referral is becoming contentious. Vaishnavi Subrahmanyam, Advocate, Supreme Court added that the correctness of medical records is not questioned unless there is clear case of fabrication.” Documentation is your friend. They are not going to doubt it unless it is evident that it is false. They accept it as sacred. Other benches may not have a doctor to examine the case, like in the National Consumer Commission. Patients tend to manipulate through emotional appeals, but if there is a doctor, he may be able to see through it,” she says.

The alarming rise in compensation was another change highlighted by the speakers. Vaishnavi and Bajpai reiterated that while courts grant anywhere between Rs 10-Rs 75 lakh as compensation, there have been cases where the compensation sought by patients have been in crores. “In some cases, as high as Rs 13 crore was claimed. These figures maybe common in the western world, but in India, for any hospital or doctor such high figures are unaffordable,” says Vaishnavi. 

They also observed that more patients are now suing hospitals and not doctors for bigger compensation and to evade bills, and that in future, at this rate any patient maybe a potential litigant. The Consumer Protection Act, 1986, gives them liberty to choose whom they want to sue. “Hospitals and doctors are no longer fighting the case together. Most often for bigger tickets. The buck stops with employer and not employee. Hospitals are vicariously liable for doctors, nurses, paramedics, temporary or permanent staff,” she added. Dr TN Ravikumar, President Elect, IMA – Tamil Nadu, who also addressed the gathering said that it was time to make clearer rules to offer guidance for doctors.