Senior journalist Chitra Subramaniam has taken Manipal Hospitals to Consumer Court for medical negligence and using non-standard implants for her ankle surgery. She can also use the RTI Act to obtain information from hospitals through the regulatory authority
Noted journalist, Chitra Subramaniam, has taken Manipal Hospitals to the Consumer Court for gross medical negligence and wilfully providing false and dangerously misleading information about implants, which did not meet standards. Her complaint in a Bangalore court relates to her ankle surgery in January 2014 where implants to correct a fracture did not meet medical standards.
The press statement issued by Crestlaw Partners, a Bangalore-based law firm states that, “Ms Subramaniam’s life was put at grave risk by the use of faulty implants, details of which were never given to her despite repeated pleas and several meetings with Swami Swaminathan, Executive Chairman of Manipal Health Enterprises.”
“Manipal Hospitals and Dr Murlidhar Rao – the orthopaedic surgeon who operated on Ms Subramaniam at Manipal Northside Hospital in Malleswaram – repeatedly provided wrong and misleading information, claiming it was given to them by the Indian arm of Synthes, the Switzerland-based subsidiary of the global conglomerate Johnson and Johnson.”
The consumer complaint case has been filed against the Hospital’s Chairman-Medical Advisory Board and Medical Director Dr H Sudarshan Ballal, and Dr Murlidhar Rao, who operated on her ankle and an Indian subsidiary of Johnson & Johnson.
Under the Right to Information (RTI) Act, a decision by the Central Information Commission (CIC) makes it mandatory for all private hospitals to maintain daily reports of medical records of patients and provide them the information. The CIC had recommended the central and state government to “force” private hospitals to give medical records of patients on a daily basis and be transparent about it. It also quoted Section 2 of the RTI Act under which it is mandatory for private hospitals to provide information as treatment comes under “services”.
The CIC, in its order of 4th July, 2015 posed these questions before itself –“The issues before the Commission are: a) Whether information sought by appellant in this case is ‘information’ as per section 2(f)? b) Whether this Commission has power under RTI Act, to enforce the Right to information of the appellant against a body, which is not held to be public authority, by directing the respondent public authority to collect the information by exercising their regulatory power? c) Whether the Commission has power to consider the authorities of private hospitals as deemed PIOs and proceed against them with penal actions for breach of RTI Act by obstructing the supply of information?
CIC concluded: ‘Information’ under section 2(f) 16. This Commission has examined the issue of right of patient to have the medical records in Nisha Priya Bhatia v Institute of Human Behaviour and Allied Sciences GNCTD, and stated “the Patient has a right to his/her medical record and Respondent Hospital Authorities have a duty to provide the same under Right to Information Act, 2005, Consumer Protection Act, 1986, The Medical Council Act as per world medical ethics.
“The Commission recommended the Public Authority to develop a timeframe mechanism of disclosure of medical records to patients or their relatives with safeguards for privacy and confidentiality of the patient.”
In that order, the Commission referred to various legislations.
“We need to refer to provisions of Consumer Protection Act, 1986 to ascertain whether appellant has the right to information about her own medical record.
Right to information under RTI and Consumer Protection Act: 17.
Expression “Consumer’’ is defined in the Consumer Protection Act, 1986:
S 2(1) (d) "consumer" means any person who, ¬(i) [omitted] (ii) hires (or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires (or avails of) the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person,
Similarly as per Section 2(1)(o) : "service" means – “service of any description which is made available to the potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction), entertainment, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service.”
The CIC decision of 4 July, 2015 recommends “forcing” private hospitals to provide daily medical records states “The Commission recommends the Government of India, states and Union Territories besides the respondent authority in this case, to take necessary steps to enforce the right to information, i.e., forcing the private hospitals to give medical records of the patients on day to day basis, because this daily disclosure will prevent undesirable practices of altering records after damage caused to patient.”
“Forcing the private hospitals to provide daily-wise medical records will also act as a check on some hospitals from resorting to extortionist, inhuman and ruthless business of prescribing unnecessary diagnostic tests, unnecessary surgical operations, caesarean deliveries, unwarranted angioplasties, inserting stents, without need, or of substandard nature, or putting low quality stent while collecting price of high quality stent, and several such malpractices amounting to medical terrorism, etc. They should not be allowed to such malpractices with all impunity and get away without any legal consequences as if there is an absolute immunity. The Government, Medical Council of India and the health regulatory has to see that licence to practice medicine will not become licence to kill and extort and come to the rescue of helpless patients.”
This order was a sequel to Delhi based RTI applicant, Prabat Kumar, who appealed to the CIC. As per the details quoted in the CIC order, his father was admitted into the hospital with the complaint of constipation, but he was kept in the ICU. He spent nearly Rs18 lakh on his father’s treatment in the Fortis Hospital, and in spite of that his father expired during the treatment.
The CIC Order states: “The appellant claimed that, being son of patient, who is party to the contract and consumer besides being victim of treatment, he has right to know the details of diagnosis, treatment and the prescriptions of the doctors who have attended him. When (the) Central Public Information Officer (CPIO) wrote to the Hospital seeking the details of treatment given to his father, the Hospital denied. Hence, appellant was compelled to use RTI for information from private hospital through the respondent public authority, the regulatory authority of the hospitals. Appellant complained that the respondent authority has forwarded reply received from the private hospital without taking any regulatory steps to secure the information as per the law.
The CIC order noted: “It is the legitimate right of the son of the deceased patient to know such details of treatment, which the hospital also contractually bound to supply, having received a consideration (payment) from the deceased’s family. It could not only be breach of contract by the hospital, but also breach of the provisions of Medical Council Act, 1971. The respondent authority being the regulatory authority, is expected to enforce the law and come to the rescue of the deceased’s family, when the rights are being violated by a private or public hospital. (Read full order here: http://jksic.nic.in/E%20-library/Prabat%20KUmar%20-%20Fortis.pdf
As for Chitra, the press statement stated, “She lives with multiple myeloma, a life-threatening cancer of the bone marrow. Regular MRIs are part of routine check-ups. The faulty implants made MRIs impossible and the implants had to be removed by a second surgery. Ms Subramaniam has publicly spoken out about her diagnosis and advocates internationally for access to affordable treatment including cancer treatment.”
(Vinita Deshmukh is consulting editor of Moneylife, and also convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book "To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte" with Vinita Kamte and is the author of "The Mighty Fall".)