Medical Negligence Liability Awards under CPA: The Chaos Created

• Accountability vs. Anarchy: Medical Negligence under the Consumer Protection Act
• Between Justice and Chaos: Liability for Medical Negligence under the CPA

Question:

In the light of the 3 quotes, will you please elaborate on the situation in India? Have not the premium for medical negligence indemnity skyrocketed in India in the last 10 years?

Relevant Quotes:

• "Reform of the medical liability system should be considered as part of a comprehensive response to surging medical malpractice premiums that endanger Americans' access to quality medical care." — Lincoln Chafee
• "Costs for liability insurance are higher than costs for many procedures. There is a need to reform liability laws to stop out-of-control health care costs." — Temple Grandin
• "Skyrocketing insurance premiums are debilitating our Nation's health care delivery system, and liability insurers are either leaving the market or raising rates to excessive levels." — Jim Ryun

Answer:

The situation in India mirrors some of the concerns raised in the quotes you shared. Over the past decade, there has been a significant rise in medical negligence cases in India, with over 5.2 million cases reported annually—a 110% increase compared to previous years. This surge is attributed to heightened patient awareness and a greater willingness to pursue legal action against healthcare professionals. As a result, the demand for Doctors' Professional Indemnity Insurance has grown, and premiums for such policies have indeed increased. These policies are crucial for protecting medical professionals and establishments from the financial burden of legal claims, court fees, and settlements. The rise in premiums is partly due to the growing number of claims and the severity of penalties for medical negligence. The legal landscape in India has also evolved, with more patients turning to consumer protection forums to seek redressal for medical negligence. This has led to increased scrutiny of medical practices and a higher risk of litigation for healthcare providers.

Would you like to explore how these trends impact healthcare delivery or discuss potential reforms to address these challenges?

Question:

How do rising premiums affect patient access to healthcare?

Answer:

Rising premiums for medical indemnity insurance can have a ripple effect on patient access to healthcare, particularly in a country like India. Here's how:

• Increased Healthcare Costs: As premiums rise, healthcare providers may pass on these costs to patients by increasing consultation fees, treatment charges, or hospital bills. This can make healthcare less affordable, especially for low-income families.
• Reduced Availability of Specialists: High premiums may discourage some medical professionals, especially those in high-risk specialties like surgery or obstetrics, from practicing. This can lead to a shortage of specialists, particularly in rural or underserved areas.
• Defensive Medicine: To avoid litigation, doctors may order unnecessary tests or procedures, further driving up healthcare costs. This practice, known as defensive medicine, can strain both patients' finances and the healthcare system.
• Impact on Small Clinics: Smaller healthcare facilities and independent practitioners may struggle to afford rising premiums, forcing some to shut down or limit their services. This reduces the availability of accessible healthcare options for patients.
• Insurance Accessibility: Patients may also face higher health insurance premiums as insurers adjust their rates to cover increased medical costs. This can make health insurance less accessible to many individuals and families.

Would you like to explore potential solutions to mitigate these challenges?

Q. What are the long-term effects of rising healthcare costs?

AI. Rising healthcare costs can have profound long-term effects on individuals, healthcare systems, and societies. Here are some key impacts:

• Reduced Access to Care: As healthcare becomes more expensive, many individuals, especially those in low-income groups, may forgo necessary treatments or preventive care. This can lead to worsening health outcomes and increased disease burden.
• Financial Strain on Families: High medical expenses can push families into debt or poverty. In countries without robust health insurance systems, out-of-pocket expenses can be catastrophic.
• Increased Health Disparities: Rising costs often disproportionately affect marginalized communities, widening the gap in health outcomes between different socioeconomic groups.
• Strain on Public Health Systems: Governments may struggle to allocate sufficient resources to public healthcare, leading to overcrowded facilities, longer wait times, and reduced quality of care.
• Impact on Workforce Productivity: Poor health due to unaffordable care can reduce workforce productivity, affecting economic growth and stability.
• Shift Towards Preventive Care: On a positive note, rising costs may encourage a greater focus on preventive care and healthier lifestyles to avoid expensive treatments.

Would you like to explore strategies to address these challenges or discuss specific examples?

Q. Can you give examples of countries facing this issue?

AI. Certainly! Rising healthcare costs are a global concern, and several countries are grappling with this issue:

• United States: The U.S. has some of the highest healthcare costs globally, with per capita spending reaching over $12,000 annually. Factors include high drug prices, administrative costs, and a mix of private and public insurance systems.
• Japan: Healthcare spending in Japan has more than doubled as a share of GDP since 1990. An aging population and increased demand for medical services are significant contributors.
• United Kingdom: The UK's National Health Service (NHS) has seen rising costs due to demographic changes and the long-term impact of the COVID-19 pandemic.
• Germany: Germany's healthcare system, which requires everyone to buy insurance from regulated providers, has also experienced rising costs, partly due to its aging population.
• Australia: Healthcare costs in Australia are increasing, with per capita spending exceeding $6,500. This is driven by advancements in medical technology and higher demand for services.

Would you like to explore how these countries are addressing the challenge or compare their healthcare systems?

Q. Do you recommend Reform of the medical liability system in India?

AI. Reforming the medical liability system in India could be a significant step toward addressing the challenges faced by both healthcare providers and patients. Here are some reasons why reform might be beneficial:

• Reducing Litigation Risks: A clearer and more consistent legal framework can help reduce frivolous lawsuits and provide better protection for medical professionals, encouraging them to focus on patient care.
• Improving Patient Trust: Strengthening laws around informed consent and patient rights can enhance trust between patients and healthcare providers.
• Controlling Insurance Premiums: By addressing the root causes of rising medical negligence claims, reforms could help stabilize or reduce indemnity insurance premiums, making healthcare more affordable.
• Encouraging Accountability: A reformed system can ensure that genuine cases of negligence are addressed effectively, promoting accountability without creating an overly punitive environment for doctors.
• Balancing Interests: Comprehensive reforms can strike a balance between protecting patients' rights and ensuring that healthcare providers are not unduly burdened by legal and financial pressures.

Would you like to explore specific reform proposals or examples from other countries that have successfully implemented such changes?

Q. What specific reform proposals are being discussed in India?

AI. In India, several reform proposals have been discussed to address the challenges in the medical liability system:

• No-Fault Liability System: Inspired by models like New Zealand's, this system proposes compensating patients for medical injuries without requiring proof of negligence. It aims to reduce litigation and foster a more supportive environment for healthcare providers.
• Revised Legal Framework: The introduction of the Bharatiya Nyaya Sanhita (BNS) has replaced older provisions in the Indian Penal Code (IPC). While it increases penalties for medical negligence, it has also sparked debates about its potential to deter doctors from taking on high-risk cases.
• Consumer Protection Act, 2019: This act has strengthened patients' rights and provided additional remedies for medical negligence. However, it has also increased the scrutiny on healthcare providers.
• Standardization of Care: Proposals to implement uniform medical protocols and guidelines aim to reduce errors and provide a clear benchmark for evaluating negligence.
• Alternative Dispute Resolution (ADR): Encouraging mediation and arbitration as alternatives to court proceedings could help resolve disputes more efficiently and amicably.
   

Q. What the ambulance chasers were for the West, legal touts are for India...

AI. You've raised an important and nuanced concern about the unintended consequences of low-cost justice mechanisms and their exploitation in India, especially in cases like medical negligence claims. Consumer fora, originally envisioned as accessible avenues for justice, aim to empower citizens, especially those who may lack financial resources to navigate traditional legal systems. The principle was rooted in fostering equality and ensuring everyone—regardless of income—had the right to seek remedies for legitimate grievances. However, as you point out, when the process becomes excessively lax or unbalanced, it risks becoming a platform for frivolous or opportunistic litigation. Medical negligence claims, in particular, are delicate. While genuine victims deserve justice and compensation, the system needs safeguards against unwarranted or exaggerated claims, which can drain public resources, harm professionals' reputations, and overload the judiciary. Striking the right balance—ensuring fairness without enabling misuse—is the crux of the issue. To refine what was proposed into a more effective practice, some measures might help:

• Clearer thresholds for claims: Introducing guidelines to separate bona fide cases from baseless ones can deter frivolous filings.
• Graduated fee structures: If claimants seeking high compensation face proportionate filing fees, it can promote more thoughtful litigation.
• Stronger scrutiny mechanisms: Enhancing the investigation and evidence review in consumer fora can curb kangaroo court tendencies and prioritize genuine claims.
• Accountability for legal touts: Legal professionals who exploit these forums for personal gain might need stricter oversight or penalties.

It's an ongoing challenge for any justice system to prevent exploitation while maintaining accessibility. What do you think might be effective ways to address this dichotomy? Or perhaps you'd like to explore examples of reforms or practices in other countries that aim to strike this balance?

Q. A patient who pays thousands and lakhs for the treatment of a disease episode does not become a privileged poor for preferential justice. Let him seek justice through the rigors of normal law like the rest of the poor patients. The Parliament has, in its wisdom, deliberately excluded health services from CPA 2019. Is the highest judiciary justified in not accepting it? That too after the two-judge bench of SC has ruled in their favour? By being indecisive, is not being decisive by default? What do you say in terms of emerging medical negligence jurisprudence?

• AI. You've touched on a critical aspect of medical negligence jurisprudence in India, particularly the exclusion of healthcare services from the Consumer Protection Act (CPA) 2019. Parliament's deliberate decision to exclude healthcare services reflects an acknowledgment of the unique complexities and stakes involved in medical practice. This exclusion aims to prevent the misuse of consumer fora for frivolous claims and to ensure that medical professionals are not unduly burdened by summary trials that may lack the rigor of traditional legal proceedings.
   
• The judiciary's indecision on this matter, despite a two-judge bench ruling in favor of the exclusion, raises questions about the balance between legislative intent and judicial interpretation. While the judiciary has the authority to interpret laws, consistent rulings are essential to uphold the integrity of the legal framework and avoid ambiguity. Indecision, as you rightly pointed out, can lead to unintended consequences, including the perpetuation of uncertainty in medical negligence cases.
   
• Emerging medical negligence jurisprudence in India seems to be grappling with this dichotomy. On one hand, there is a need to protect patients' rights and ensure accountability for genuine cases of negligence. On the other hand, there is a growing recognition of the challenges faced by medical professionals, including the risk of frivolous litigation and the impact on their ability to provide care without fear of legal repercussions.
   
• To address this, some potential measures could include:
  • Specialized tribunals: Establishing dedicated medical negligence tribunals with expertise in healthcare could ensure fair and informed adjudication.
  • Clear guidelines: Developing comprehensive guidelines for assessing medical negligence claims can help distinguish genuine cases from baseless ones.
  • Judicial consistency: Ensuring that higher judiciary rulings align with legislative intent to provide clarity and stability in the legal landscape.

The evolution of medical negligence jurisprudence in India will likely depend on striking a balance between protecting patients' rights and safeguarding the medical profession from undue legal challenges. What are your thoughts on how this balance can be achieved?

Written By: Dr. Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
Email: kabrasg@hotmail.com Mobile: 8003516198