by Dr M C Gupta
Medical malpractice litigation in USA is responsible for high medicare costs.
|MEDICAL MALPRACTICE IN USA AND INDIA—
Some people tend to think that American health and legal systems are exemplary and the Indian ones, in contrast, are full of corruption. Stereotype thinking, either that America is heaven and India is hell (or vice versa) needs to be avoided. Let me present here a bit of inside view about medical malpractice in USA.
1—LITERATURE REVIEW---According to a well researched and balanced scientific article published in a reputed American medical journal some time ago, where the aim of the retrospective study was to find out the reliability of medical malpractice adjudication system in USA, the conclusion was that, on the whole, it was reliable. However, the study found that about 15% medical malpractice suits went against doctors even when there was no evidence of medical negligence as judged by a panel of study experts. I have not come across such a study about the Indian scene but my own experience over last 9 years of legal practice is that such proportion is certainly less in India. My guess would be about 5%.
2—AMBULANCE CHASERS---So called “ambulance chasers” go all the way to induce the patients to sue doctors for compensation for alleged medical negligence / malpractice even when there is none. The tactics involve the following, among others:
a—A notice is issued to the doctor, through an attorney, alleging negligence and demanding a heavy amount as monetary compensation. Doctors are likely to pay a certain negotiated amount in order to avoid unnecessary court hassles. In certain states of USA, there is a legal requirement that the patient must send an “intent to sue notice” to the doctor, followed by a cool off period of 6 months, during which majority of the claims do not come up before the court. In principle, this is a good thing. It minimizes litigation, which is in the interest of the society. However, at practical level, it often happens that unprincipled “ambulance chasers” count on the fact that prolonging the pretrial discovery process wastes time and energy of the doctors. As a result, settlements are often made to end the nuisance even if the claim is absurd.
b—If the doctor does not succumb to the notice, a case is filed in the court, where all efforts are made to win the case against the doctor. The extent of such efforts is exemplified in a case that I handled. It is mentioned below.
c—Advocates assure the patients of a “no cost litigation”. They enter into an agreement with the patient to pursue the trial free, contingent up on the condition that in case of winning, a certain percentage of the compensation payable would accrue to the advocate. This percentage varies between 30-70% and the the usual figure is 50-60%.
d—In order to make suing even more lucrative to the patient, there are companies which insure / assure the patient against losing the case by offering, during the pendency of trial, a certain monetary advance out of the amount claimed on the explicit condition that the amount so advanced and received by the patient would not be recovered from him in case no compensation is awarded. There are even advertisements on the TV for this purpose to promote this service. I have seen such TV ads myself in California, where I am currently visiting.
It is obvious that there is an unholy nexus between such “insurers” and the lawyers so that they may pay a pittance to the patient and pocket themselves, on shared basis, the compensation awarded. The net result is that there is an unhealthy and lucrative pressure upon the public to file false or frivolous cases against doctors without losing a single penny. The compensation, if awarded, is paid by the insurance companies from whom all doctors and hospitals in USA buy heavy professional indemnity insurance. Ultimately, the public is the sufferer because high insurance premia paid by doctors to insurance companies ensure that the same are recovered from the patients through heavy consultation fees. This, in fact, explains what is wrong with the healthcare system in USA.
3—MY EXPERIENCE--An experience of mine indicates the extent to which patients and their lawyers can go to “prove” their case against the doctor. A few months ago, I was engaged to study a case of alleged medical negligence in Canada and, after studying it, to give my own opinion as also to arrange for expert opinions in support of the case. The client had undergone a colonoscopy to rule out any colonic disease, even though the patient had no symptoms suggestive of any need for colonoscopy. The colonoscopy was done by a thoracic surgeon who apparently had no training in colonoscopy. (Endoscopy can be quite remunerative). The patient alleged that he developed several symptoms, including those suggestive of pudendal nerve injury, following colonoscopy, which was negative. Later, he underwent a rectal examination, following which, according to the patient, he suffered symptoms of coccygeal injury, which the patient attributed to undue force used during the rectal examination. I told the client that, on the face of it, there was no medical negligence, but he insisted that he would still like expert opinion. (He was probably under the impression that for sake of money, doctors in “poor India” would give a tailor made opinion on demand that may be favourable to the client. He wanted opinion from a gastroenterologist regarding endoscopy and from a surgeon regarding rectal examination. I arranged for the opinions. They were as expected. They opined that there was no negligence.
4—INDIAN SCENE—The legal environment in India is not heavily biased against doctors due to the following reasons:
a—There are hardly any ambulance chasers in India. The reason is not that lawyers are any more scrupulous in India. The reason is that Indian courts do not award exorbitant compensations. The highest compensation awarded so far for medical negligence has been Rs. 20,00,000/- (about $ 40,000/-). Hence suing doctors to share the spoils is not lucrative in India. This malaise in USA has reached such proportions that some states in USA have been compelled to pass legislation limiting damages to $250,000, which makes it far less attractive to pursue the claims.
b--Supreme Court in India has held that no case, criminal or civil, can proceed in the absence of a prior medical opinion that there was negligence on the part of the doctor. The relevant judgments are as follows:
JACOB MATHEW CASE --The Hon’ble Supreme Court laid down the following principle in Jacob Matthew v. State of Punjab in para 52 of the judgment: “A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
-- Jacob Mathew v. State of Punjab and another - 2005 SCCL.COM 456. Criminal Appeal No. 144-145 of 2004 decided by the Supreme Court on August 5, 2005.
MARTIN F. D'SOUZA CASE (Martin F. D'Souza v. Mohd. Ishfaq , Supreme Court, decided on February 17, 2009)—It was held that no cognizance of a complaint of medical negligence can be taken by the consumer Forums / Commissions in the absence of a report from a doctor or committee of doctors certifying that there was negligence.
c--There is no jury system in India. In countries with such system, as in USA, there is a possibility that the independence of the judiciary may be compromised.
d--Judicial appointments in lower courts in India are free from public pressure. Judges in lower courts are appointed by or through the mechanism of the High Courts. Judges in local courts in USA are elected by the public.
M C Gupta
MD (Medicine), LL.M.
18 December 2009
(Currently visiting USA)