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CHANAKYA NATIONAL LAW UNIVERSITY PATNA

FINAL PROJECT: SOCIOLOGY TOPIC :PREVALING MEDICAL MALPRACTICES, SOCIO AND LEGAL STUDY.

SUBMITTED TO: DR. SANGEET KUMAR FACULTY FOR SOCIOLOGY SUBMITTED BY: ANSH PRASAD ROLL NO. 1916 BA LL.B 2ST SEMESTER 1|Page

ACKNOWLEDGEMENT The researcher takes this opportunity to express his profound gratitude and deep regards to his guide DR. SANGEET KUMAR for her exemplary guidance, monitoring and constant encouragement throughout the course of this thesis. The blessings, help and guidance given by her time to time shall carry the researcher a long way in the journey of life on which the researcher a long way in the journey of life on which the researcher is about to embark. The researcher is obliged to staff members of Chanakya National Law University Patna, for the valuable information provided by them in their respective fields. The researcher is grateful for their cooperation during the period of his assignment. Lastly, the researcher would like to thank almighty, his parents, brother, sister and friends for their constant encouragement without which this assignment would not be possible.

THANK YOU ANSH PRASAD

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DECLARATION I hereby declare that the work reported in the B.A. LLB (Hons.) project report entitled “PREVALING MEDICAL MALPRACTICES, SOCIO LEGAL STUDIES” submitted at CHANAKYA NATIONAL UNIVERSITY, is an authentic record of my work carried under the supervision of DR. SANGEET KUMAR . I have not submitted this work elsewhere for any other degree or diploma. I am fully responsible for the contents of my project report.

ANSH PRASAD CHANAKYA NATIONAL LAW UNIVERSITY

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TABLE OF CONTENT 1. INTRODUCTION

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I.

INTRODUCTION

Medical malpractice is a legal cause of action that occurs when a medical or health care professional deviates from standards in his or her profession, thereby causing injury to a patient.1

Medical malpractice occurs when a hospital, doctor or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of errors in diagnosis, treatment, aftercare or health management.2

Medical malpractices may also occur when a hospital or doctor or other health care professional through an illegal act tries to or is successful in gaining benefit in terms of monetary or other gain in the name of patient. The doctor may use any low quality medicine in place of good medicines or the equipment provided by the doctor may not be up to the mark though he would be charging for the same.

To be considered medical malpractice under the law, the claim must have the following characteristics:

A violation of the standard of care - The law acknowledges that there are certain medical standards that are recognized by the profession as being acceptable medical treatment by reasonably prudent health care professionals under like or similar circumstances. This is known as the standard of care. A patient has the right to expect that health care professionals will deliver care that is consistent with these standards. If it is determined that the standard of care has not been met, then negligence may be established. An injury was caused by the negligence - For a medical malpractice claim to be valid, it is not sufficient that a health care professional simply violated the standard of care. The patient must also prove he or she sustained an injury that would not have occurred in the absence of negligence. An unfavorable outcome by itself is not malpractice. The

1 2

https://en.wikipedia.org/wiki/Medical_malpractice . Retrieved on 08/03/2019 https://www.abpla.org/what-is-malpractice Retrieved on 08/03/2019

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patient must prove that the negligence caused the injury. If there is an injury without negligence or negligence that did not cause an injury, there is no case. The injury resulted in significant damages - Medical malpractice lawsuits are extremely expensive to litigate, frequently requiring testimony of numerous medical experts and countless hours of deposition testimony. For a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To pursue a medical malpractice claim, the patient must show that the injury resulted in disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.3

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https://www.abpla.org/what-is-malpractice Retrieved on 08/03/2019

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AIMS AND OBJECTIVES 

The researcher wants to study about medical malpractices.



The researcher wants to study about the legal and socio background of medical malpractices.

LIMITATIONS 

The researcher has time limit limitations in completing the project

RESEARCH METHODOLOGY 

For this the researcher will rely upon the doctrinal method of research

SOURCES OF DATA 

The researcher will rely upon the primary sources of data-books and secondary sourcesinternet.

MODE OF CITATION 

For the citation the researcher will follow BLUE BOOK (9th edition).

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II.

Contemporary scenario of medical malpractices

The arrest of top doctors, including the CEO of Hiranandani Hospital in Mumbai, in connection with a kidney sale and transplant case on August 9 is sadly not an isolated case of an unethical (and illegal) business practice at India’s big private hospitals. Money-minded doctors use a number of tactics to fleece gullible patients. For a hefty commission, doctors prescribe more tests than necessary, to be done at preferred in-house or outside labs. Sometimes tests are not even conducted on the samples taken; instead, fake results are given to concur with the doctors’ rationale for prescribing those tests in the first place. On a similar theme, doctors prescribe expensive medicines or vaccines when cheaper, quality substitutes are easily available. Often many of these medicines and vaccines are available only at an in-house pharmacy, or recommended chemist shops outside. Other times patients are charged at different rates for the same treatment according to the room-type that a patient selects — even for the same operation by the same doctors in the same operation theater. Doctors can also deliberately delay discharging patients even when they’re fit to leave the hospital. Worse, doctors have been known to conduct fake operations to extract money from naïve patients or their relatives. Such fake operations look like genuine ones; the patient, after being given anesthesia, is taken to the operating theater where family members are not allowed. The drowsy patient is then kept for a few hours in the OT, but no operation really happens. Fake stitches might be put in so that the average patient won’t easily know that the operation was a fake. In other cases, doctors have used stents to treat heart disease treatment, even if it’s not really necessary, as that procedure is quite profitable. Stents are given to patients at three times the import price. Worse, an unnecessary stent may be harmful or even cause death yet doctors are recommending the use of stents to make a few extra bucks. Similarly, gynecologists at private hospitals sometimes scare pregnant women into opting for a C-section, which is more expensive than normal deliveries.

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Last but not least, there is the sad practice of luring poor and uneducated people to agree to donate organs, kidneys in particular, for which there are no dearth of high paying customers. The reality of this practice, which is in complete violation of accepted norms, was highlighted by the recent cases at Hiranandani Hospital in Mumbai and Apollo in Delhi.4

The Root of the Problem

Private hospitals, with profit-making as their main motive, use a system of incentives and disincentives to push doctors to over-bill using whatever means – ethical or not – that they can think of. With seats in the subsidized government medical colleges limited, many medical aspirants opt for private medical colleges that charge hefty capitation fees. This makes doctors vulnerable to the whims of private hospitals that pay good money to their empanelled doctors, as they need to recover their expensive investment in medical education.5 However, these unethical business practices are burdening individual patients and companies, in the case of salaried employees who get health coverage benefits from their employers. Insurance premiums are negotiated periodically and the rates are decided on the basis of previous years’ claims. The more the claims in the current year, the higher the premium will be next year. Thus, patients or their employers (in case of salaried people) have to indirectly bear the ever-rising cost of healthcare in the form of high and rising insurance premiums. The insurance companies don’t much object unless their net payment obligations exceed the net premiums received. Besides, they have devised ways to limit their overall liabilities, such as capping payments for the treatment of specific ailments. If everything else fails,

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https://thediplomat.com/2016/08/dealing-wth-the-growing-threat-of-medical-malpractice-in-india/ Retrieved on 08/03/2019 5 Article by Ritesh Kumar Singh and Udit Kumar on medical malpractices Retrieved on 08/03/2019

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health insurance companies raise the premium for family floaters to make up for a low return in corporate health coverage. As a result, doctors, private hospitals, pharmaceutical, and insurance companies are making a buck at the cost of individual patients and corporations who provide the healthcare benefits to their employees in a largely unregulated healthcare market. The Way Forward

The Medical Council of India is not effective in checking malpractices and corruption in the medical field and is likely to be disbanded soon. A system of standardized treatment protocol (or SOP) may help check some abuses, but that may also constrain doctors. Besides, SOPs may ultimately raise the cost of treatment. The preferred hospital network system has improved convenience, but is not enough to rein in unscrupulous doctors and hospitals.6 Can economics provide any insights to help address the growing menace of unethical business practices in the healthcare sector? Tweaking the system of incentives and disincentives, improved access to information, and, in turn, a more transparent healthcare market can help to end unethical medical practices. Incentives: Increasing the supply of seats in government medical colleges and capping capitation fees will reduce investment costs for medical students and in turn reduce their incentive to give in to the uncontrolled pursuit of profit in private hospitals, which are often run not by doctors but by MBAs. Lowered debt will reduce the incentives for doctors to cheat and overbill. Access to information and transparency: Mandatory video recordings, plus archiving and sharing the recording with patients or their representatives, will make doctors accountable. At present, private hospitals do publish the credentials of top doctors, including their education and past experience. That practice needs to be expanded to include each doctor’s record in treating patients. Thus, a gynecologist’s profile must show how many deliveries she supervised, and how many of them were normal and

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https://thediplomat.com/2016/08/dealing-wth-the-growing-threat-of-medical-malpractice-in-india/ Retrieved on 08/03/2019

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how many were C-sections. Such information will help patients make informed decisions about which doctor to go to for treatment. In addition, the rating and ranking of specialist doctors in fraud-prone specialties such as kidney transplants, gynecology, and cardiology by third party independent agencies — and making the ratings available online — can be immensely helpful. By the same token, rating hospitals based on their basic infrastructure, charges, and some indicators of ethical business practices — like how many medical malpractice suits are filed against a hospital — can ensure good behavior. Disincentives: Aggrieved patients should be encouraged to take their grievances to consumer courts, which are cheaper, faster, and don’t require lawyers for representation. Corporations, especially the bigger ones with bigger insurance premium bills, are advised to hire in-house doctors and medical lawyers to investigate whether they are being taken for a ride by unethical doctors, hospitals, or insurance companies, and take appropriate remedial actions. The above measures can check most of the unethical practices but not all of them. For serious infractions, stringent penalties including fines, permanent disbarment, and imprisonment will still be needed

III.

MEDICAL MALPRACTICES LEGAL STUDY

Public awareness of medical negligence in India is growing. Hospital managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods. After the Consumer Protection Act, 1986, has come into force some patients have filed legal cases against doctors, have established that the doctors were negligent in their medical service, and have claimed and received compensation. As a result, a number of legal decisions have been made on what constitutes negligence and what is required to prove it. Civil law and negligence

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Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence. Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of a medical professional. In the case of the State of Haryana vs Smt Santra, the Supreme Court held that every doctor “has a duty to act with a reasonable degree of care and skill” 7. Doctors in India may be held liable for their services individually or vicariously unless they come within the exceptions specified in the case of Indian Medical Association vs V P Santha 8. Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus free treatment at a non-government hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) (0) of the Consumer Protection Act, 1986.

However, no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care 9. An error of judgement constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error 10.

In a key decision on this matter in the case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole, the Supreme Court held that if a doctor has adopted a practice that is considered

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State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335

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AIR 1996 SC 550 Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213. In: Nathan HL. Medical Negligence. London: Butterworths; 1957. 9

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Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords

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“proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong.

Doctors must exercise an ordinary degree of skill 11. However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not totally cured 12.

Certain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the person’s duty; and this must have caused harm to the injured person. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion 13.

In some situations the complainant can invoke the principle of res ispa loquitur or “the thing speaks for itself”. In certain circumstances no proof of negligence is required beyond the accident itself. The National Consumer Disputes Redressal Commission applied this principle in Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 14. The principle of res ipsa loquitur comes into operation only when there is proof that the occurrence was unexpected, that the accident could not have happened without negligence and lapses on the part of the doctor, and that the circumstances conclusively show that the doctor and not any other person was negligent.

Smt J S Paul vs Dr (Mrs) A Barkataki (2004) 10 CLD 1 (SCDRC – MEGHALAYA Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC – UTTARANCHAL); Mrs Savitri Devi vs Union of India IV (2003) CPJ 164; Dr Devendra Madan vs Shakuntala Devi I (2003) CPJ 57 (NC). 11

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Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR 1969 (SC)128

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Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138.

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Criminal negligence

Section 304A of the Indian Penal Code of 1860 states that whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine, or with both. In the Santra case, the Supreme Court has pointed out that liability in civil law is based upon the amount of damages incurred; in criminal law, the amount and degree of negligence is a factor in determining liability. However, certain elements must be established to determine criminal liability in any particular case, the motive of the offence, the magnitude of the offence, and the character of the offender. In Poonam Verma vs Ashwin Patel the Supreme Court distinguished between negligence, rashness, and recklessness 15. A negligent person is one who inadvertently commits an act of omission and violates a positive duty. A person who is rash knows the consequences but foolishly thinks that they will not occur as a result of her/ his act. A reckless person knows the consequences but does not care whether or not they result from her/ his act. Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability. Thus a doctor cannot be held criminally responsible for a patient’s death unless it is shown that she/ he was negligent or incompetent, with such disregard for the life and safety of his patient that it amounted to a crime against the State . 16

Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal

liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. According to Section 88, a person cannot be accused of an offence if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.

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15

Poonam Verma vs Ashwin Patel (1996) 4 SCC 332

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House of Lords decision in R vs Adomako (1994) 3 All ER 79

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Burden of proof and chances of error

The burden of proof of negligence, carelessness, or insufficiency generally lies with the complainant. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. In cases of medical negligence the patient must establish her/ his claim against the doctor. In Calcutta Medical Research Institute vs Bimalesh Chatterjee it was held that the onus of proving negligence and the resultant deficiency in service was clearly on the complainant 17. In Kanhaiya Kumar Singh vs Park Medicare & Research Centre, it was held that negligence has to be established and cannot be presumed 18. Even after adopting all medical procedures as prescribed, a qualified doctor may commit an error. The National Consumer Disputes Redressal Commission and the Supreme Court have held, in several decisions, that a doctor is not liable for negligence or medical deficiency if some wrong is caused in her/ his treatment or in her/ his diagnosis if she/ he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals skilled in that particular art, though the result may be wrong. In various kinds of medical and surgical treatment, the likelihood of an accident leading to death cannot be ruled out. It is implied that a patient willingly takes such a risk as part of the doctor-patient relationship and the attendant mutual trust. Recent Supreme Court rulings

Before the case of Jacob Mathew vs State of Punjab, the Supreme Court of India delivered two different opinions on doctors’ liability. In Mohanan vs Prabha G Nair and another 19, it ruled that a doctor’s negligence could be ascertained only by scanning the material and expert

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Calcutta Medical Research Institute vs Bimalesh Chatterjee I (1999) CPJ 13 (NC)

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Kanhaiya Kumar Singh vs Park Medicare & Research Centre III (1999) CPJ 9 (NC)

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Mohanan vs Prabha G Nair and another (2004) CPJ 21(SC), of 2004 Feb 4.

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evidence that might be presented during a trial. In Suresh Gupta’s case in August 2004 the standard of negligence that had to be proved to fix a doctor’s or surgeon’s criminal liability was set at “gross negligence” or “recklessness.” In Suresh Gupta’s case the Supreme Court distinguished between an error of judgement and culpable negligence. It held that criminal prosecution of doctors without adequate medical opinion pointing to their guilt would do great disservice to the community. A doctor cannot be tried for culpable or criminal negligence in all cases of medical mishaps or misfortunes. A doctor may be liable in a civil case for negligence but mere carelessness or want of due attention and skill cannot be described as so reckless or grossly negligent as to make her/ him criminally liable. The courts held that this distinction was necessary so that the hazards of medical professionals being exposed to civil liability may not unreasonably extend to criminal liability and expose them to the risk of imprisonment for alleged criminal negligence. Hence the complaint against the doctor must show negligence or rashness of such a degree as to indicate a mental state that can be described as totally apathetic towards the patient. Such gross negligence alone is punishable. On September 9, 2004, Justices Arijit Pasayat and CK Thakker referred the question of medical negligence to a larger Bench of the Supreme Court. They observed that words such as “gross”, “reckless”, “competence”, and “indifference” did not occur anywhere in the definition of “negligence” under Section 304A of the Indian Penal Code and hence they could not agree with the judgement delivered in the case of Dr Suresh Gupta. The issue was decided in the Supreme Court in the case of Jacob Mathew vs State of Punjab 20. The court directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressure in performing their duties. It ruled that until the government framed such guidelines, the following guidelines would prevail: A private complaint of rashness or negligence against a doctor may not be entertained without prima facie evidence in the form of a credible opinion of another competent doctor supporting the charge. In addition, the investigating officer should give an independent opinion, preferably of a government doctor. Finally, a doctor may be arrested only if the investigating officer believes that she/ he would not be available for prosecution unless arrested.

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Criminal Appeal Nos 144-145 of 2004

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IV.

CASES OF MEDICAL NEGLIGENCE

4-Month-Old Baby Given Painkillers, Dies Within An Hour At Delhi Hospital:21 The medical system in the country is constantly under the scanner as not only adults, but also new-born infants are now becoming the victims of medical negligence. Not only the patient suffers from the pain, but the families also have to deal with a lot if the patient, especially an infant, ends up dying. A four-month-old baby died at a city hospital on Friday, after being administered a painkiller injection to provide temporary relief from the pain caused by the stitch in the upper lip, reported IANS.

The family of the baby has alleged negligence. They informed that the child was taken to Delhi's Rohini-located Jaipur Golden Hospital on January 17 after the baby had suffered a cut in the upper lip. They were informed that the doctors were planning to put a stitch to treat the cut, and the family agreed. Accordingly, a minor surgery was performed and the baby was given back to the mother. However, as the baby kept crying for about half an hour, doctors were informed.

"The doctors took the baby away and administered some pain killer following which he became completely silent. We got afraid to see him completely silent and without any motion," Manish Kumar, uncle of the deceased told IANS. When the family informed the doctor again, they came and checked the baby. "After checking, they immediately rushed him to the ICU where he was kept for nearly one hour. After one hour, the doctors came out and informed that the baby had died due to medicine reaction," said Kumar. When the matter was taken to the Medical Superintendent, the family was told that it was a case of medicine reaction and nothing 21

https://www.indiatimes.com/news/india/5-recent-incidents-of-medical-negligence-show-that-doctorsneed-to-wake-up-from-slumber-344053.html Retrieved on 08/03/2019

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could be done .The family filed a police complaint against the hospital and the doctors involved in the treatment of the baby. In 2015, in a similar case in the same hospital, Anamika Ray, a 36-year-old woman academician from Assam had died due to blood infection caused while undergoing a surgery there.

60 YO Woman Given Acid In Place Of Water By Staff in Bihar, Dies: 22 A woman recently died after accidentally swallowing acid kept in a bottle given to her by staff of a private hospital when she asked for water to consume medicines. 60 -year-old Shyamali Devi was a resident of a village in Goraul police station area of neighbouring district of Vaishali. She had undergone an eye surgery at a hospital situated in Brahmapura police station area of Muzaffarpur last evening.“After being operated upon, the woman was given some medicines. When she asked for water to swallow the tablets with, a paramedical staff handed over a bottle thinking it to be full of water”, Brahmapura SHO Dharmendra Kumar told PTI. Officials said that Shyamali Devi began retching loudly upon sipping the acid following which the staff called the doctor who had performed the surgery. The woman was immediately rushed to a nursing home situated nearby where she died Woman Comes To AIIMS Complaining Of Stomach Ache, Doctors Perform Dialysis: 23

The cases of medical negligence in the country are increasing by the day, and some cases that were under supervision of senior doctors are also being reported. In another such case, a senior doctor at the AIIMS (All India Medical Institute) in Delhi is now facing trouble as he gave wrong treatment to his patient, identified as Rekha Devi. The patient is a resident of Bihar, had come to seek treatment for abdominal pain. During this time her kidneys were examined and there were no kidney ailments found.

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https://www.indiatimes.com/news/india/5-recent-incidents-of-medical-negligence-show-that-doctorsneed-to-wake-up-from-slumber-344053.html Retrieved on 08/03/2019 23 https://www.indiatimes.com/news/india/5-recent-incidents-of-medical-negligence-show-that-doctorsneed-to-wake-up-from-slumber-344053.html Retrieved on 08/03/2019

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Despite this, a dialysis treatment was performed on her. Following the incident, the doctor who is reportedly an assistant professor in the department of surgery at AIIMS, tried to cover up the error by changing the documents. Rekha had been suffering from pain due to a complication caused by an abdominal surgery she had undergone at a hospital in her hometown Saharsa. In the hope of a cure, she approached the hospital and was taken to an operation theatre for examination, reported PTI.

The doctor then made an arteriovenous or AV fistula, a vascular procedure used to access blood for hemodialysis treatment in patients with kidney disease. The next day, the doctor performed a dialysis treatment on her. However, the woman has stated she did not suffer from any kidney ailments. A committee has been formed in AIIMS under the chairmanship of the Dean Dr Y K Gupta, after a probe into the matter was requested. The doctor has reportedly been indicted and has been asked to withdraw from all clinical work.

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Field work INTERVIEW SCHEDULE 1: Section A PLACE: PATNA

DATE: 03/02/2019

TIME: 12:30 P.M

NAME: Yoganand AGE:

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POST: STUDENT Section B 1. what do you understand by medical malpractices?  Medical malpractice is very much prevalent in our society. The person to whom we give our life to protect our life. That person only plays with our life. There can be nothing more dangerous than this. 2. Do you think people are safe in the hand of the doctors?  That’s a very silly question which have a sence of irony. The person to whom we go to save our life , now we have to question ourself whether we are safe in his hand or not.

3 Do you think there are any laws to protect the interest of patients?  Yes there are laws to protect the interest of patients but these laws are under the shoes of high profile peoples..

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INTERVIEW SCHEDULE 2: Section A PLACE: PATNA

DATE: 09/02/2019

TIME: 2:30 P.M

NAME: UMESH PRASAD AGE:

70

POST: OWNER OF MEDICAL SHOP Section B 1. How many cases are registered of medical malpractices?  I actually don’t have that idea. 2. Do medical malpractices have connection with medicines too?  Yes, every other doctor prefers their own brand of medicine. A similar type of medicine may have more than 2-3 companies manufacturing the medicine, the doctor prescribes only those medicine which are profitable to them. The said medicine company pays a share of profit to the doctor. 3. How can the people prevent from the duplicate medicine?  As if now there can be nothing done by the common people to stop duplicate medicines. Often there are various cases where people have suffered because of fake medicine. Here the govt need to take a step forward. The people atleast can do is to check the expiry date before consuming the medicine. And also they should but the medicine from trusted stores.

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Conclusion and suggestion

During the past decade, medical professional liability issues have been of great concern to health care providers, insurers, patients, and state legislators. Much has been written about the financial and legal aspects of the problem, such as the cost of insurance and the size of jury awards. Much less attention has been devoted to analyzing the effects of medical professional liability issues on the delivery of health care and the practice of medicine. Go to: Medical Professional Liability Controversy There is no consensus about the cause of the medical professional liability controversy in the health care delivery system, except that most observers agree it is unlikely that any single factor is responsible. Physicians and other health care providers tend to blame attorneys, whom they allege are encouraging plaintiffs to bring nonmeritorious medical malpractice suits. Attorneys, joined by some consumer advocates, frequently argue that the increased number of suits reflects an increase in negligent medical practice. Still another view is that patients are more willing to sue their physicians, partly because of the rapidly increasing costs of medical care and the failure of physicians to establish effective relationships with their patients. It is also suggested that the roots of the medical professional liability problem lie in the insurance industry and its management practices. In response to proliferating malpractice claims,1 49 of the 50 states enacted tort reforms in the past decade to modify medical malpractice liability laws. These attempted remedies often have included limits on awards to plaintiffs and attorneys and changes in tort doctrine. Despite these legislative reforms, the number of medical malpractice claims has continued to increase during this period. The number of claims filed against physicians nationwide rose at an average rate of 10 percent per year from 1982 to 1986 alone. Not only were there more claims, the severity of the claims—that is, the amounts paid out in both jury verdicts and settled claims—has risen considerably. Medical malpractice insurance premiums have reflected this upsurge in claims and payments. The American Medical Association (AMA) estimates that premiums for all physicians increased 81 percent between 1982 and 1985; premiums for obstetrician-gynecologists 23 | P a g e

averaged an increase of 113 percent during the same period. Premiums are affected not only by the frequency and severity of claims but also by the high cost of processing them. Go to: Problem Most Acute in Obstetrics These trends have been most pronounced in the practice of obstetrics. Claims against obstetrician-gynecologists are currently two to three times more numerous than the average for all other physicians and are comparable only to a handful of other high-risk surgical specialties. According to a 1987 survey by the American College of Obstetricians and Gynecologists (ACOG), 70 percent of obstetricians reported that they had had at least one claim filed against them at some time in their careers. The U.S. General Accounting Office (GAO) reports that the claims frequency for all physicians was 16.5 per 100 physicians in 1984, ranging from 8.6 in Arkansas to 35.7 in New York. These numbers mask another story: the continued increase in the frequency and severity of claims against obstetricians is compromising the delivery of obstetrical services in this country; that effect, in turn, is reducing access to obstetrical services for certain groups of women. The committee devoted much of its resources to investigating and documenting the problems posed by professional liability in obstetrics, both in the delivery of and access to care and in the way in which obstetrics is practiced. Go to: Liability's Broader Scope In approaching the medical malpractice issue the committee was keenly aware that the U.S. civil litigation system generally has undergone explosive growth in certain kinds of tort liability in recent years. This growth has attracted wide attention because of dramatic, often breathtaking, jury awards and settlements. Premiums have risen substantially for many lines of commercial liability insurance. Moreover, the general explosion in litigation is being blamed by some persons for slowing growth in productivity, thwarting research and development efforts, and consequently undermining the competitive position of the United States. These persons contend that only fundamental reform of the American civil justice system will solve these problems. Others deny that there is a tort liability difficulty, arguing instead that the problem lies with the insurance industry. In their view, insurance companies have made 24 | P a g e

enormous and costly underwriting errors that have been compounded by slowed returns on their portfolio investments and have engaged in collusive behavior. The proffered solution is rigorous regulation of the insurance industry. Acknowledging that the problems posed by medical professional liability are part of a broader controversy, the committee nevertheless concluded that medical professional liability exhibits special features that will most likely require unique solutions. Accordingly, the committee evaluated data relating only to the medical professional liability problem and evaluated proposed legal solutions only as they addressed medical professional liability issues. Many believe that the medical professional liability problem is exacerbated by inflated consumer expectations of modern medicine coupled, paradoxically, with declining respect for the medical profession. There is no question that the American public expects a great deal from modern medicine. Public opinion polls consistently reveal that Americans want early benefits of advances in medical technology and that they are willing to pay even for risky and inordinately expensive treatments such as organ transplantation and artificial organs. Further, it seems that many Americans expect the medical system not only to treat their ills but to cure them as well. Many observers have written about the changing public perception of the medical profession. Viewed as virtually infallible earlier in this century, physicians now are increasingly being regarded warily by some patients. The rapid transformation of the health care delivery system in the decades since the enactment of Medicare and Medicaid has contributed to this lack of confidence. The phenomena of corporate for-profit medicine, proprietary chain nursing homes and hospitals, commercial laboratory services, health maintenance organizations, preferred provider plans, and other market-oriented approaches to health care delivery can transform the doctor-patient relationship into a producer-consumer relationship. Behind many medical malpractice claims is a disappointed consumer who believed he or she was purchasing a cure, is disappointed with the results, and, often without any other avenue of compensation, is seeking relief through the legal system.

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Bibliography

Websites: https://www.ncbi.nlm.nih.gov/books/NBK218664/ https://thediplomat.com/2016/08/dealing-wth-the-growing-threat-ofmedical-malpractice-in-india/ https://ijme.in/articles/medical-negligence-and-the-law/?galley=html https://www.thehindu.com/opinion/op-ed/a-cure-for-medicalmalpractice/article23994053.ece https://www.abpla.org/what-is-malpractice https://en.wikipedia.org/wiki/Medical_malpractice

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