Compensation for medical malpractice should be capped. Else, there will be no doctors left to perform surgeries

The recent Supreme Court ruling on medical compensation of ₹11 crore in Kolkata has raised several issues related to the medical profession and its practice. The Supreme Court has rightly upheld the law of the land.

In 2030 BC, during the Old Babylonian period, the Code of Hammurabi read: “If the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die or has opened an abscess of the eye for a gentleman with a bronze lancet and has caused the loss of the gentleman’s eye, one shall cut off his hands”.

Chopping off doctor’s hand for making a mistake is definitely effective but after some time there will be few doctors left with the hands to operate. The current Indian law governing the medical negligence is not vastly different than that of Hammurabi’s Code.

Gynaecologists will retreat

And, what is the state of healthcare delivery in India? As many as 84 per cent of the hospitals in India are less than 30 beds in size, where more than 60 per cent of the children of this country are born. Among doctors, gynaecologists are most vulnerable to litigation.

A majority of these nursing homes do not even have a medical records department to protect them in the case of litigation. Any sincere effort to save the life of a patient, not backed by a well documented medical record, can never stand in the court of law.

A gynaecologist builds a typical 30-bed nursing home in a small town after slogging for decades and building a reputation for himself and the nursing home.

However, if an unfortunate incident occurs and someone sues the gynecologist for ₹2 crore — which is not a lot of money compared to ₹11 crore compensation offered in Kolkata — there will be a problem.

Even if the small town gynaecologist sells his nursing home, his house and farmland, if he has any, he will not be able to come up with ₹2 crore.

Doctors, in general, are in a very insecure profession, since they are dealing with human life. We are now adding an angle of financial insecurity, which can potentially bankrupt the doctor and his family.

One or two stray incidents across the country claiming a compensation of ₹1 or 2 crore against these gynaecologists in small towns is good enough to send shock waves among the medical community.

The media spotlight is bound to amplify the impact. In a very short time most gynaecologists taking care of pregnant ladies in small towns will move to big hospitals in cities where they are protected.

If the issue is not addressed soon, we can expect maternal mortality to double.

Get real

Our policymakers boast of India having 6 lakh doctors. What they have not realised is that nearly two lakh doctors, instead of seeking invaluable learning by the patient’s bedside, are busy mugging MCQs (multiple choice questions) for two to five years in Kerala or Kota in pursuit of one of those elusive PG seats.

As a result, junior doctors doing night duty in small towns simply do not exist. Specialists in small towns are handicapped with very little support from junior doctors, trained nurses and technicians.

In the early 1990s the medical profession in the US was reeling under the impact of astronomical compensation for malpractice.

As expected, malpractice insurance premium went up to three months of doctors’ salary. The doctors decided to stop conducting deliveries. As a result, the government had to airlift pregnant ladies during childbirth from small towns to bigger city centres. Obviously, it was unsustainable and risky.

So, several states in the US capped malpractice compensation at $ 250,000 (₹1.5 crore). This capping reduced malpractice suits significantly. Today, the US has one lawyer for every 300 people! No wonder, one in every seven doctors is sued there every year. India is not too far behind; Delhi has one advocate for every 300 citizens!

Change the law

Capping compensation is not new to Indian law. Government officers cannot be fined for more than 33 per cent of their basic salary. In the US and several European countries, capping the malpractice compensation is a norm.

Human life is precious. Leave alone ₹11 crore, even if the family is paid ₹1,000 crore it cannot compensate for the loss of life. The only question is: What can we afford?

Of course, medical malpractice deserves punishment. Doctors who have neglected the patient are punished through the Medical Council, which can remove their right to practice temporarily or permanently, and this is one of the worst punishments for a doctor. Added to that some financial compensation is definitely required.

However, if the compensation is going to ruin the doctor, his family and his future, we are not far away from the rule of Hammurabi.

As a country, we need to protect everyone’s life. But if we try to implement first-world regulatory structure with third-world infrastructure, we will be in trouble. We are a country short of one million doctors, two million nurses and three million beds.

With this scarcity, we should concentrate more on improving the infrastructure, creating the right regulatory framework to protect the life of the patients as well as an ideal working environment for the doctors. On this issue, governments’ mandate should be to cap the malpractice compensation.

Compensating the family by ₹2 crore instead of ₹20 lakh will not revive a lost life. But it can wreck the doctor’s family and close down small nursing homes in backward areas, putting the lives of thousands of people at risk.

Professional bodies such as the Indian Medical Association and Association of Healthcare Providers of India (AHPI) should write to the Minister of Health to request the Ministry of Law to cap the malpractice compensation.

The writer is founder and chairman, Narayana Health

(This article was published on May 13, 2014)
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