Malpractice or Poor Judgement?

The practice of medicine has never claimed to be an exact science. In
fact, it is very much a hit-and-miss situation. Taking into account these above
factors, India seems to be on a destructive trend regarding their level of
health care. Ever since private medical services fell under the Consumer
Protection Act (COPRA) in April 1993, the number of malpractice suits filed
against doctors has begun to soar. For example, in Kerala, approximately 1800
cases (15% of the total number of cases) have been filed. As Dr. Dipak Banerjee
of the Indian Medical Association puts it: “It\'s degenerating into a kind of
For years the community of doctors across India was immune to charges of
malpractice, but the tide has begun to turn. Doctors are now having to dish out
larger sums of money in order to insure themselves adequately. Insurance
companies have caught on as well, raising the price of malpractice insurance on
most doctors. For instance, a doctor who would have had to pay Rs. 125 annually
now has to pay up to Rs. 1500. These costs will only be passed along to the
patients in the long run, and the condition is only going to worsen. Take for
example the United States, where surgeons annually pay an average of $75,000 on
insurance premiums. On top of these premiums, doctors who practice very
defensively add as much as $21 billion US to the health care bill every year.
Twenty percent of the tests prescribed by doctors were not necessary, but they
are the result of defensive practising by doctors who do not want to be held
This condition, already appearing in India, could become the downfall of
their present health care industry. Doctors are being forced to “look upon
every patient as a potential litigant.” There is likely going to be a
tremendous rise in the cost of treatment as doctors begin this new wave of
defensive practising, in which a series of expensive tests are carried out
before any diagnosis is made. Quoting Dr. Chockalingam (Chairman of the Indian
Chapter of Royal College of Surgeons), “If a patient comes with a headache we
may now order a CT scan lest we miss a brain tumour... We now have to see
whether a patient comes alone for consultation or brings along his advocate.”
This problem could lead, and has led, to many others. Doctors may shun
complicated cases where risk is high due to the delicate nature of the procedure,
so as not to be hauled to court. This refusal to treat patients has already
taken its toll on those involved in motor vehicle accidents, whose treatments
are often very tedious. This brings us to the fulcrum of the issue: trying to
hold doctors accountable for their actions. Is poor service better than no
service at all? Is the case criminal negligence - or just a genuine error in
This entire matter revolves around a central point in the Consumer
Protection Act-- section 2 (1) (o) which declares “services means service of any
description which is made available to potential users... It does not include
rendering of any service free of charge or under a contract of personal service.”
This statement clears government-run hospitals and doctors of any wrong-doing,
due to the fact that much of their service is rendered free of charge. However,
this does not clear the private sector hospitals which now perform approximately
70% of all out-patient services. Even still, the main problem with COPRA is its
tendency to make doctors solely responsible for poor treatment. L. M. Kapur,
president of the Association of Medical Consultants, describes the situation:

"Doctors are just 25 per cent of the input for treatment. There are para-
medical staff, blood banks, nurses, ward boys, poor infrastructure facilities,
equipment and even patients themselves that could be responsible for poor
results. Yet we are becoming the scapegoats for everybody\'s woes."

Another major problem is that this prestigious profession is being piled
in with a whole range of other services. This has led to speedy trials in
consumer courts, whose panels are comprised of people who do not have the
knowledge to differentiate between genuine malpractice and errors in judgement.
As well, consumer courts advocate a “Yes/No” approach, while medicine has many “
grey areas” for treatment. What really irritates doctors is the fact that under
COPRA, they are treated like other services such as those which provide
entertainment and food. However, the services that they supply should be more
than proof that an alternative system of review of medical conduct should be
Before the