Compensation by State: Eliminating Legislation Against Doctors
Sunil K. Pandya
Basics of such a scheme
Patients sue their doctors principally to gain sums of money as compensation for damage done to than. The victims of such litigation suffer considerably when they are innocent. One consequence of this sorry state of affairs has been the practice of ‘defensive medicine’, which, in turn, imposes worsening burdens in terms of escalating costs of investigation and therapy on the patients themselves.
Another important consequence patients who suffer damage for whom no one can be held liable (as when the harm follows medical accident rather than negligence) have no recourse to compensation at present.
Some countries are experimenting with a system of ‘liability without fault’.Here,compensation is sought and granted on the basis of extent of damage irrespective of its cause and is related to the need of the patient.At one stroke,this relievevs the doctors and the court of litigations and ensures that the majority suffering the consequences of medical acccident also recieves help.Instead of having to prove malpractice by an individual evidence of harm would suffice.Inevitably, if the state has to pay the current trend towards a massive compensation awards would be reserved
Such a system necesitates the setting up of a fund for ths specifiic purpose using contributions by the state, the medical profession insurance agencies philanthropic institutions an community at large.
Why should the medical profession contribute? The system outlined above would bar all civil proceedings which relate to damages arising from personal injury and death by accident,misadventure and negligence. The benefits to doctors in the form of peace of mind, ability to concentrate on treatment of the patient and savings in settlements provide sufficient reasons.
The Accident Compensation Scheme of New Zealand restricted such compensation to personal injury by accident including medical, surgical, dental or first aid misadventures but excluded damage caused by sickness, disease or the ageing process.
This has been disputed. Since the aim is to help all those in need, to exclude those handicapped as a natural consequence seems unfair. On the other hand, the funds needed to help all those handicapped by accident or ill health will be enormous and may be beyond available resources.
The individual patient will gain less money from such a system. The more equitable distribution of money to all those in need, based on the extent of need should, however, be generally welcome.
A review of decisions in New Zealand under the Accident Compensation Scheme shows that patients suffering harm from failure to diagnose or treat accurately, risks known to the doctor but not to the patient and failure by the doctor to provide sufficient information to permit the patient to make an autonomous decision were not compensated. Thus, in practice, sonic forms of medical negligence were not covcrcd, lending themselves to action in courts of law. Here, the principle (based on common sense and natural justice) that where an injury is caused which should never have been caused, compensation should be paid by the person causing such harm has been applied.
Is such a system feasible in India?
The answer depends on the extent to which society and the medical profession are willing to bear the financial burden. The medical and legal professions, social service agencies and the population at large would do well to ponder this alternative to the present system that sows the seeds of distrust and antagonism between patient and doctor.
- McLean Sheila AM: A patient’s right to know. Information disclosure, the doctor and the law. Medico Legal Series, Dartmouth Publishing Co., Hants, England. 1989 Chapter 8, pages 140-161.