Tuesday, September 10, 2013

What Rights Do Patients Have ?

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What Rights Do Patients Have ?

Under the Indian healthcare system, a patient enjoys several rights.
It’s the advocate’s responsibility to understand them all and tailor their services accordingly

The Supreme Court of India set aside a writ filed by the Indian Medical Association (IMA) in 1995 and decreed that the medical profession is a “service” that should be covered under The Consumer Protection Act, 1986. This implied that patients are to be considered as consumers of healthcare services. A lot of water has flown down the Ganga since then. Although malpractice still happens, thanks to the fact that medical services are now covered under The Consumer Protection Act, 1986, there is evidence that patients’ rights are better protected these days.

A landmark judgment
In the famous V. Kishan Rao Vs. Nikhil Super Specialty Hospital and another, dated March 8, 2010, the Supreme Court did not even ask for a medical expert’s opinion, when it became clear that the patient suffering from intermittent fever and chills was wrongly treated for typhoid instead of malaria for four days, ultimately resulting in her death. The apex court upheld the decision of the District Forum in awarding compensation to the victim’s family, when investigation by another hospital to which the patient was shifted in a very critical condition on day 5 revealed that the doctor had overlooked the fact that the Widal Test for typhoid was negative, whereas the test for malaria parasite was positive in her case. This was sufficient evidence for the District Forum to conclude that it was a case of wrong diagnosis and treatment. Throughout this trial, the deceased’s husband (the petitioner) was guided by several patient-advocates, who didn’t necessarily have lawyer’s degrees.

A huge leap for patients

In November 2012, a renowned cancer surgeon was asked to deposit a fine of Rs 50,000 with
the metropolitan magistrate’s court in a case of “medical negligence.” This case makes for
interesting reading, because it highlights the fact that the lack of a good ‘bedside manner’ in
the doctor was perceived as a personal snub by the patient’s husband, and this slight caused
him to pursue the matter doggedly through the labyrinthine Indian judicial system for many years.
Ironically, in this case, the deceased was not even officially registered as the surgeon’s patient. Yet
her husband hauled the surgeon to court and has been ‘patiently’ fighting this battle for over
two decades, simply because he is upset that the surgeon allegedly did not attend to his wife
in the operation theatre (where he was present as a bystander) and did not bother to meet the
family after the surgery. Throughout the course of his fight, the patient’s husband has steadfastly
maintained: “Had the doctor apologized or even shown some remorse, I would have forgiven him.”

Even though this may come across as an extreme example of a patient’s expectations from a doctor, the fact cannot be denied that a doctor’s job is ultra-sensitive and as health care providers, the buck stops with them. Further, as with the delivery of any service, doctors are accountable for deficient deliveries, especially since they
are dealing with human life, where decisions once made are often irreversible. The demand for efficient and error-free service is therefore legally and morally justified in their case, especially as surgeons these days command a hefty premium for the services they render.

The low level of health literacy in this country tilts the balance unfairly in favor of doctors, who are quite aware of their patient’s limited means and inadequate understanding of health issues. Even the well-educated and the well-heeled are vulnerable, and withholding crucial information is a common strategy that the medical fraternity deploys to prevent a patient from seeking a second or third opinion from another doctor. Often the patient and her family
place blind faith in one doctor, only to have their hopes dashed.

While busy doctors lament that they do not have enough time to look into individual complaints, patients are unhappy over how long they have to wait to see a doctor - and even when they do manage to get their chance, they are often very dissatisfied about the quality of the doctor’s communication, most of which goes over their head because it’s replete with medical jargon.

The Consumer Protection Act 1986 has undoubtedly made it easier for aggrieved patients to seek redressal and
sue for compensation but the process is time-consuming and given the huge backlog of cases in consumer courts,
the litigation process is tedious, timeconsuming, costly and confusing for lay consumers. Lately, while courts have
begun to award handsome damages to the victim, as in the much-cited 2009 case of a computer professional,
Prashant S Dhananka who found himself paralysed waist-down after a surgeon ‘accidentally’ damaged his spinal cord during a surgery performed for removal of a chest tumor, and the apex court awarded him Rs 1 crore in damages - such cases are still few and far between. The onus of proving medical negligence largely rests with the patients’ family and that’s where patient advocacy becomes important for receiving safe health care.

Medical negligence, defined In an oft-cited judgment in Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, Mc. Nair, L.J. observed: “I must explain what in law we mean by ‘negligence’. In cases that do not require any special skill, negligence in law means - some failure to do some act which a reasonable man in the  circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action.” This in a nutshell is the parameter for defining deficient medical service.

The apex court’s definition of patients’ rights
According to the Consumer Guidance Society of India, a patient under the Consumer
Protection Act, 1986 has the right to be told about his illness and to have his medical records
explained. In addition:

  • Patients should be explained what treatments and medicines are being prescribed to them. They should be made aware of the risks and side effects, if any. They have the right to ask questions and clarify their doubts about the treatment.
  • Patients have the right to know a doctor’s qualifications.
  • Patients have the right to be handled with consideration and due regard for their modesty when being physically examined by the doctor.
  • Patients have the right to maintain confidentiality regarding their illness and can expect the same from the doctors.
  • Patients have the right to a second opinion if they are doubtful about the medicines or treatment suggested. 
  • Patients have the right to know what a suggested operation is for and the possible risks involved. If he is unconscious or unable to make the decision due to other reasons, informed consent needs to be taken from their nearest relatives.
  • Patients have the right to get a copy of their medical records and case papers on request from the doctor/hospital. 
  • If the patient needs to be transferred to another hospital, he has the right to know the reason for this; and also has the right to make their choice of which hospital to go to, in consultation with the doctor. 
  • Patients have the right to get a detailed explanation of the bills they are asked to pay.
Patient advocates can help patients secure the rights they are legally entitled to in India.

The following chapters will explain these rights in greater detail, and how a patient-advocate
can help uphold them. Remember Tenzin Gyatso’s wise words, “ It is not enough to be
compassionate. You must act”.

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