NO - FAULT LIABILITY IN MEDICAL MALPRACTICE LITIGATION

Posted on 10-29-2014 by
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INTRODUCTION, APPLICATION, ADOPTION AND ENFORCEMENT OF  "NO-FAULT LIABILITY PRINCIPLE"  TO MEDICAL NEGLIGENCE CASES UNDER THE UNITED NATIONS INTERNATIONAL GUIDELINES ON CONSUMER PROTECTION
1. In the health service industry, innovative measures to deliver the best also entails regulatory compliance. Inevitably, the Doctor-Patient relationship remains profoundly human and sensitive irrespective of the use of technologically advanced means at command to reach out with a diagnostic and/or therapeutic result, all in tremendous good faith. 

2. Yet, mishaps occur and sometimes leave a life long trail of suffering or even death. Ensuing litigation between the service provider and the beneficiary polarizes their relationship, often long drawn and bordering on bitterness.

3. As a proud citizen of India and in service of the legal profession , I must share that consumer awareness has taken an escalated proportion on our soil in the last three decades, and is now young, indomitable  and strong enough to ask profound questions. 

4. Historically speaking, The Consumer Protection Act, 1986 became a code and a three tier system of redressal forums started adjudication of consumer disputes at District, State and National level, with the Hon'ble Supreme Court of India as the final court of appeal.

5. In the year 1995 doubts about medical services being amenable  to the consumer jurisdiction were put to rest by our Hon'ble Apex Court in V.P. Shanta's case and since then all the District Fourms, State Commissions and the National Consumer Disputes Redresaal Commission have entertained, tried and decided consumer disputes related to different dimensions of alleged medical malpractice(s).  

6. Inevitable corollary would be that all the issues before the consumer courts must have, inter alia, involved carrying out a critical analysis of human anatomy and various systems with regard to pathology, 

  • prognosis, 
  • morbidity and mortality of diseases. To arrive at a finding there must have been a thorough study of standard protocols of treatment, 
  • known complications, 
  • terminal illness and palliative management, preoperative preventions and post-operative precautions, 
  • role of follow up advise and contributory negligence etc. 

(FEW SELECTED CASES ON IMPACTING ISSUES IN CLINICAL MALPRACTICE CAN BE READ, URL shared above)

7. On well established legal principles,  the journey from the "Bolam's Test" was traveled upto the "Bolitho's Test"  by our jurists with an equilibrium reflecting global standards.

8. The practice of this branch of medical law has caused a new discipline to develop and revolutionized the administration of justice on patient care so much so that time and again international community is awe struck, recent observation by no less than the BMJ is an example of our approach and sense of direction on health care regulation by judicial precedent.

Link to British Medical Journal:

http://www.bmj.com/content/349/bmj.g5229

9. As a developing Nation we are rapidly gearing up the public health services, yet, per capita expenditure on private sector is surprisingly high due to advent of  state of the art corporate hospitals, their ranks and profiles reflecting supers specialties, latest equipment and the faculty, and thanks to whom we are now not only famous for tourism-tourism, but also "medical-tourism".

10.  We have insurance companies servicing Professional Indemnity Policies for the health care professionals and medical establishments, but the remittances are made only on the award, judgment or adjudication attaining finality.

11.  Similarly,  the statutory body, Insurance Regulatory and Development Authority  covers `clinical trial' indemnity.

However, 
THE LEGAL ISSUE OF "NO FAULT LIABILITY" FOR VICTIMS OF MEDICAL MALPRACTICE  HAS NOT ATTRACTED THE REQUIRED ATTENTION AT  A PLATFORM SO FAR.  AN UNCONDITIONAL,  AND  A MINIMUM,  STANDARDIZED, MEASURED,   FIXED  FINANCIAL SUPPORT TO THE VICTIMS OF ALLEGED MEDICAL NEGLIGENCE RESULTING IN PERMANENT DISABILITY OR DEATH AT THE COMMENCEMENT OF ANY TRIAL BEFORE ANY COURT WITHOUT ANY FINDING(S) OR BEARING ON THE ULTIMATE MERITS OF THE CASE WOULD ASSUAGE THE IMPACT AND BRING RESPITE TO BOTH SIDES, MEDICAL AS WELL THE PATIENTS'.
An  interface of legal and consumer friendly  system should be integral with  any  health care model in the public domain, to build trust, maintain goodwill and avert litigation. 
Permanent disability and death,  during and/or after medical treatment,   is a universal and global suffering faced by humanity, many a times unreported and wretchedly shrouded. For every  innocent life or limb lost, society is morally responsible to compensate without recourse to establishment- of-guilt- first procedures, hence need a radical mandate to be followed worldwide.

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