Our Beef with the Doctors
When doctors are sued for malpractice
Doctors are, often, at the receiving end of malpractice suits, and with disastrous results. The matter was getting so out-of-hand that many countries, especially litigation-prone ones, decided to cap damages. Otherwise, insurance companies would either refuse, or hike, insurance premiums.
Normally, a malpractice suit would have a procedural or diagnostic failure as the cause of action. Yet, one case centred on defamation by a doctor, coupled with malpractice. The complainant was fast asleep, under sedation. It also involved a third factor, admissibility of evidence when the recording is not authorised and unknown to the accused.
Dr Shah is a specialist. He was carrying out a procedure along with an anaesthesiologist, a doctor who administers and controls the sedation on the patient. The patient was a lawyer! It became a potent combination, as unfolding events will show.
It is common practice, in an operation theatre, for doctors to banter. It may be the stress or boredom. But they talk. And joke and, often, the jokes veer towards the anatomy, because that is what they have before them. And, as doctors, they have been sensitised to jibes involving body parts. During an operation to mend a broken leg, in 1976, this author was subjected to some such light-hearted stupidity. Not aware that the pethidine had worn off, someone joked about asking me, when I got up, about her future. She had misheard ‘psychic’ for ‘cyclist’. Next problem; the drill had been misplaced. It was found in the adjoining operation theatre. Someone joked, “They must be wanting to make another hole.” That patient was in for piles.
Back to our lawyer, unconscious on the table. The reports say that he was not a brave sort and had asked myriad questions prior to the sedation. He was also worried about some rash on his genitals. Not wanting to miss out on the post-procedure instructions, he had switched on his mobile phone to record them. Someone had picked up his trousers, phone in pocket and still recording, and placed them under his table. Evidence that was admitted and proved inconvenient.
Haemorrhoids are growths. Most people have them. But, when one has inflamed, or ulcerated haemorrhoids, he is said to ‘suffer from them’, the term being used as a disease. Suffering from ‘haemorrhoids’. What our lawyer went through is both funny and sad since he was in for nothing, definitely not for ‘haemorrhoids’.
The doctors started with ridiculing him for his anxiety. They referred to his body parts, the private ones, and suggested that he may have sexually transmitted diseases. All this was small talk to keep the atmosphere alive, as it were. After all, the jokes were on the patient who was in deep sleep! Nary a word would reach his ears. Or so the doctors thought.
Next came the haemorrhoids. None was perceived as diseased. So, the doctors decided to ‘doctor’ the report. From jokes, it went to cheating—a crime.
On his way home, the patient switched on the phone and was subjected to his recorded ridiculing. The forged report was discussed while he lay comatose. He did what lawyers do. He sued. The asking sum was a cool US$1.7 million. Now you be the judge.
He got US$500,000. Not bad for an afternoon’s visit to a clinic. The doctors have since been shooed away. The clinic has expressed its regrets. This happens in India, too. An advocate friend complained to his client, a doctor, about stomach pains. The doctor quoted a fee. Our friend said he could not afford it. They settled for a lower amount, the maximum mediclaim allowed. Procedures were performed. Tablets were administered. The pain subsided. The lawyer had an uncle, a septuagenarian, who was a general medical practitioner, in the old mould, and he asked to see the reports. He asked one question: “Where is it indicated that you had stones?” What a few analgesic pills would have cured had cost many thousands of rupees€ finally paid by all of us as higher premium. Where, and when, will it all stop?
(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])
Meenal Mamdani
7 years ago
Two types of malpractice are described in this article. The first kind where medical staff talk about the patient imagining him unconscious and then have to pay a hefty sum for causing mental anguish. In USA damages are awarded for non-quantifiable losses like pain and suffering while in most other countries damages are based on actual loss to the patient like say loss of use of an arm or a leg.
The second incident quoted is fraud, where a doctor treats deliberately for a nonexistent problem. This kind would be criminal offense, not just civil one.
As to author's last comment, where will it end, I guess that depends on the maturity of the insurance marketplace. There is no reason why a doctor should charge a patient 3 or 4 times as much as soon as he finds out that the patient has insurance. This should be investigated and the insurance company should beat down the doctor's charges or else patient told to go to another doctor whose charges are more reasonable.
Unless patients revolt, doctors will continue to charge higher fees to those who have insurance and insurance companies too lazy to haggle with the doctor, will pass the charges on to customers as higher premiums.
The bottom line is patients must stop treating doctors like gods, read up on their conditions on the Internet, ask pertinent questions and get a second opinion wherever feasible. I am a physician and I would much rather deal with a well informed patient than one who has "faith" and has unrealistic expectations.
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