2010 June - Note 5

Post Kishan Rao case – Pressing need for legislation to protect doctors - Vishnu Joshi, Advocate, Gujarat High Court

The Supreme Court, in the case of V. Krishan Rao v/s Nikhil Super Speciality Hospital & Ors. has set aside the judgment passed in the case of Martin F. D’ Souza v/s Mohd. Ishfaq (February 2010 issue – 3MLCD a13/j33). The Supreme Court had earlier laid down the law that no case of medical negligence could proceed against a doctor in any court without the opinion of another doctor prima facie holding negligence. This law has been set aside by the present judgment and henceforth the criminal, civil, and consumer courts can proceed against doctors in cases of medical negligence without taking any second medical opinion.

A very important mechanism that prevented frivolous litigation against doctors has now simply ceased to exist. This judgment is jurisprudentially sound and unassailable. However, India is a developing country, with its own peculiar socioeconomic conditions. The law must take these factors into account or else it will produce adverse effects on the society.

After V. P. Shantha’s case, there has been an exponential rise in cases against doctors. There are undoubtedly some black sheep in the medical profession. However, equally important is the fact that even modern medicine has not been able to unveil all the mysteries of the human body, nor does it have a remedy for all ailments. Unexpected and unknown results are part of the ‘accepted medical practice,’ recognized not only in India but the world over. Although, the growing tendency among patients is to brand every adverse result as medical negligence and to take a ‘chance’ in the consumer court.

The results are frightening. Doctors are hesitant in accepting complicated or critical cases. The safest option for the doctor and not the best, but risky option for the patient, is chosen. Defensive medicine is on the rise and investigations are often advised to act as a protective device in case of future litigation. These factors invariably lead to the rise in cost of treatment, which is ultimately borne by the patient.

Hence, there is an urgent need for legislation to overcome this judgment. Getting a second opinion from another doctor of the same specialty must be made mandatory before any legal proceeding is initiated against a doctor. Imposing penal liability on the doctor giving a faulty second opinion and prescribing a time limit to get a second opinion can be introduced, to act as safeguards against misuse. Alternatively, introducing a no-fault compensation scheme, similar to that in the case of motor accidents, can also be considered. Such laws are providing very good results in countries like New Zealand and Finland.

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