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1. Should doctors be tried in Consumer Courts? In India doctors were considered as God as they save lives of people. This is one of the professions which gives an internal satisfaction. For - If a patient suffers because of the mistake of a doctor then he should be dragged to the consumer court. - Legal actions should be taken against the doctor who is trying to do any illegal work. - If a doctor tries to help any patient with anything illegal then he should be punished for his actions. - In today’s time doctors have forgotten the promise which they make to their profession while getting into this profession. - For a small amount of money they put people’s life at risk. Against - A doctor is a human being and is bound to make mistakes. - For mistakes which he has not made knowingly, he cannot be tried in consumer court. - Doctors always try to protect lives of people and do their duties very well. - Doctors practicing honestly and ethically should not be tried in consumer court. Doctors are life saviors and like any other professionals who provide their services to the society. They need to be loyal to their profession as well as honest to their customers. In case they don’t fulfill their duties then consumer should have the right to take them to consumer courts.
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Should doctors be tried in Consumer Courts

Oct 29, 2014

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Page 1: Should doctors be tried in Consumer Courts

1. Should doctors be tried in Consumer Courts?

In India doctors were considered as God as they save lives of people. This is one of the professions which gives an internal satisfaction.

For- If a patient suffers because of the mistake of a doctor then he should be dragged to the consumer court.- Legal actions should be taken against the doctor who is trying to do any illegal work.- If a doctor tries to help any patient with anything illegal then he should be punished for his actions.- In today’s time doctors have forgotten the promise which they make to their profession while getting into this profession.- For a small amount of money they put people’s life at risk.

Against- A doctor is a human being and is bound to make mistakes.- For mistakes which he has not made knowingly, he cannot be tried in consumer court. - Doctors always try to protect lives of people and do their duties very well.- Doctors practicing honestly and ethically should not be tried in consumer court.

Doctors are life saviors and like any other professionals who provide their services to the society. They need to be loyal to their profession as well as honest to their customers. In case they don’t fulfill their duties then consumer should have the right to take them to consumer courts.

2. This issue requires much debate, a lot of questioning, also a lot of introspection. But before we do that, let me ask, why do we limit ourselves to consumer courts?? Why are we afraid to move to criminal courts if the quantum of crime is culpable enough to be tried only in criminal courts?? When I say this, I wish to emphasize on the point that doctors are after all human beings. They are bound to get carried away by pleasure of life, greed for money and desire for a lavish lifestyle. This may encourage the devils inside them, they may switch over to illegal activities, may mint quick money and fulfill their hidden desires.

Somebody, at this instance, may like to raise a point that doctors are human beings also when they are performing complex surgeries. They are bound to

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make small mistakes, forget a glove back in the stomach of a patient, inadvertently give a wrong injection, prescribe unknowingly a useless drug. Agreed!!! I don’t suggest harsh punishment for such situations. But I wish that we do not neglect this issue in totality and that too for two reasons. One, because if we allow a doctor to got scott free after leaving a surgical instrument into a patient’s abdomen, we are encouraging his carelessness. There is one in every chance that this mistake may repeat itself and the doctor will never repent for it. Another reason I discourage this practice is- A black sheep in the herd of dedicated doctors, may, under the veil of “Non purposeful mistake”; Do illegal activities. He, for his unethical gains, perform acts as - prescribe a banned drug to his patient and when he get access to it, supply it potential buyers abroad. Not only this, on pretext of a small operation, he may remove vital organs from the body of a patient while the patient remains in dark. Unlawful activities, but with a lesser criminal intention, could be purposefully keeping a patient in ICU although there is no need of it!!! This point reminds me of a case, where in a patient’s family proved themselves smart enough for the doctors. Let me give a first hand description of this, although in brief. A patient on death bed, with serious kidney malfunction was admitted in a government hospital. Observing the serious condition of the patient, he was instantaneously recommended to a better equipped private hospital. Unfortunately, he breathed his last on the way. Promptly the private hospital issued a death certificate. Unsatisfied with the callous attitude of doctors from government hospitals he was again admitted in the government hospital. The hospital declared him dead after two days, issued a huge bill along with a death certificate. Armed with two death certificates issued on two different dates, the family published the horror story in media channels. This story is another reason why I did not blame only private hospitals and private doctors of illegal bunglings, because that would have shielded all government employed doctors.

I blame this situation on the society as a whole and government policies in particular. Society because every 1 in 5 families of a patient is willing enough to have an illegal organ transplant or blood transfusion from an illegal source; if it guarantees the welfare of the patient. This encourages doctors to switch to illegal means for any need, small or big. And the government policies are equally responsible because the scenario since independence, by and large remains the same. There has been no increase in the numbers of opportunities available to this class of people whom we call doctors. Instead we expect them to serve the masses, with minimal(or sometimes even nil) infrastructure, no incentives and when compared to their better offs in IT and MANAGEMENT sectors, only a handful are able to give competition.

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But before blaming anyone else, Is it not the moral and ethical responsibility of a doctor to serve selflessly his fellow beings? Is this not the first thing taught in medical colleges?!! May be I am keeping my foot on one more debatable topic.

3. Doctors and the Consumer Protection Act

The recent landmark judgement by the Supreme Court, stating that medical services to patients, for which fees are charged, come under the purview of Consumer Protection Act 1986, has put a curtain on the long- drawn-out debate between doctors and consumers on the issue. Even as the matter was still under deliberation by the Court, several claims were made from within the medical profession, probably as part of a strategy. Consumer courts were not equipped or competent to judge on intricate medical matters involved in medico-legal litigation, implying that there was wide scope for injustice. Once their powers were augmented, medical councils, and not Consumer Courts, should take these matters up. The Consumer Protection Act would ultimately be against the interests of patients because there would be defensive medicine. These arguments release a lot of hot air but shed no light. Now that the dust has settled it is worth examining how the medical community has responded to the very positions it tried to take.During the past two years - even as the case was before the Supreme Court - there was a public uproar on the kidney transplant racket. How did the medical community- and the medical councils in our various states - respond to it? Many doctors knew of those who had indulged in such practices but chose to be tight-lipped bystanders. The medical councils stirred into a semblance of activity only after the media turned on the heat. Their activity seems to have conveniently petered out. But then, historically, the medical councils, meant to be the guardians of ethical standards in medical practice, have chosen to look the other way, avoiding taking action and even neglecting to exercise the powers they already have. How, then, can the argument -- that the medical community in general and medical councils in particular would provide adequate regulation and redressal to safeguard the plight of patients were they granted extra powers -- inspire confidence?As regards defensive medicine, by its very nature, it will be intended to safeguard the interests of the doctor.Transferring the expenses incurred on this account to patients will constitute an unfair practice under the Consumer Protection Act. Does this mean that the doctor is to be defenseless? The need for such defense would be minimised if we had standard protocols for the investigation and treatment of common diseases. We understand that the Indian Academy of Paediatrics is evolving protocols for paediatric problems. This is a step in the right direction. As long as the doctor follows nationally accepted protocols, normally he cannot be accused of negligence or malpractice.The bench of the Consumer Court is headed by a retired judge who can avail of expert services if and when needed. In Bombay, the court requires the

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complainant to provide attestments from two medical doctors that there is a basis for admitting the case. This means that when the case against a doctor is before the CPA court, at least two medical doctors feel there is prima facie merit in it: What is more, if the complaint proves to be frivolous, the complainant can be fined upto Rs. 10,000/- Surely, there is no room for apprehension. The judgement, by itself, does not encourage the filing of suits against doctors. By and large, the Indian citizen does not like to litigate.Is the Consumer Protection Act a dampener for medical practice? I do not think so. On the contrary, taken in the right spirit, it is a boon for ethical, patient-oriented doctors. Doctors claiming to adhere to ethics have always lamented that colleagues stooping to unethical practices have an unfair advantage because there is no control over these practices. The CPA should help in curbing this unfair advantage.

If doctors would like fewer legal restrictions on themselves, they must regulate - and be seen to regulate - themselves through adherence to the principles of medical ethics.

A quack is a person who pretends to have knowledge which he does not possess; who promises to do what he is either not sure he can perform or what he is certain he cannot perform; who represents his practice to be more successful than that of other men; who pretends to cure diseases known and admitted to be incurable; whose manner is confident and imposing; whose tone and language are unhesitating and boastful; who employs remedies, the nature and composition of which he keeps unknown and who deals in specifics and universal remedies. He is addicted to handbills, newspapers and similar modes of making known his pretensions and proceedings. This is the quack and the conduct of this man is quackery.

4. Dr Paresh Desai plops his BlackBerry in front of you. “Look at my phone,” he says, “See the calls. 11 pm, 11.30 pm, 1.30 am, 2.30 am and 4 am.”

Dr Desai, a senior paediatrician in South Mumbai, is not convinced that doctors are reluctant to answer questions from patients. That’s why he shows his phone. He took all of those calls.

“Yes, I took them,” he says, “It’s about a child’s health, after all.” And he reiterates his spirited defence of his colleagues.

“As long as it is relevant,” he says, “how can any doctor not answer a patient’s question? Maybe it happened in an earlier era. Doctors liked to play God. That’s not possible now because there is information available to patients. If there’s a patient of dengue or malaria, his relatives have researched it already.”

Dr Desai is the kind of doctor who would attract the adjective ‘avuncular.’ Evidence of his personable nature is on display in his cabin. On a softboard, there is a greeting card from students and teachers. On his desk, there is a mug that says ‘world’s greatest

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husband’. The bed on which he examines his patients has five toys, including an M&M bean. 

Unfortunately, not all doctors evoke the same warm feelings among customers. Increasingly, they are seen as callous or mercenary. Speak to anyone fresh from a hospital experience. You will hear gripes about duty doctors making hurried, often cursory, rounds—spending no more than five minutes with a patient, who is charged for the visit nevertheless. And if you want information or updates, it is you who typically has to take the initiative. Else the doctor may leave with a perfunctory,

“He’s alright.” 

Dr Sujeet Jha, consultant endocrinologist and head of the department of endocrinology, diabetes and obesity, at Max Super Speciality Hospital, Saket, New Delhi, seems aware of the reputation of doctors. “The common complaint across the world is that doctors are not communicating properly, whether it is about health risks or side effects of medicines. I recently met a lady from Kathmandu who had just been operated upon by an ex-surgeon. She opted for him instead of other practising doctors because she felt that he had answered all her questions properly.”

At the same hospital, Dr Viveka Kumar, senior consultant, interventional cardiology and electrophysiology, explains why doctors behave the way they do. “In India, medical practice has always been one of implied consent,” she says, “Doctors feel that if you have come to a hospital, it is implied that you trust them and their methods. Until recently, doctors were not used to being asked about what they were doing. Now there is so much awareness; you get to read about the patient’s perspective in the media everyday. This has led to attendants and relatives becoming more vocal about their opinions.”

But, Dr Kumar adds, “At times, some of these questions by relatives are not asked with good intentions. Generally, such queries are instigated by outsiders. In addition, doctors fear that whatever they say will be quoted against them in consumer courts. However, I make it a point to tell the patient and his relatives about the problems and risks involved. It is the right of the patient and his family.”

One Mumbai man spent a good part of the past year dealing with his father’s complicated, ultimately fatal, health problems. He got a fair idea about the working of six doctors and two hospitals. Most of those experiences were unwholesome. “There are two things I cannot get over,” he says. “There is a psychiatrist whom my father had developed a comfort level with before his death. When my father’s health started deteriorating, we requested the psychiatrist to visit him in hospital and meet my sisters, who had come from the US. He did not come. He made excuses. He lived just two suburbs away. I think he was wary of meeting my sisters, who have a background in science and had questions about the drugs he recommended.”

“That brings me to the second thing. It involves the same doctor and another senior psychiatrist. They prescribed strong anti-psychotic medication for my father without a warning about side effects. Later, we found out that these drugs have dangerous side effects. Possibly, the doctors wanted relief for the family and hence recommended those drugs. But it was irresponsible of them not to educate us about side effects.”

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He adds, “In one of the hospitals, three doctors were observing my father. They themselves couldn’t come to an agreement on the course of action. One would say, ‘He’s alright.’ He was impatient with questions, answering in stock phrases. Another doctor said, ‘He’s in bad shape, take him home.’ Perhaps he was frank, but the curtness was shocking. The third one had no role to play after a point, because my father’s case had ceased to be psychological and was now neurologic. The only senior doctor who came in and sat with us a couple of times was the neurosurgeon. He was decent about the whole thing. But it is possible that we got those one-on-one meetings only because we found a common friend.”

A well-to-do Bangalore man, whose mother was suffering from stage-three cancer last year, took no chances. “A close relative works in the pharmaceutical industry. We pulled some strings through him at the top rungs of the hospital. That ensured that we at least got marginally better treatment.”

About such cases, Dr Kumar says, “The amount of time spent by a senior doctor doesn’t generally have a directly proportionate relationship with the outcome. As a senior doctor, you get hour-by-hour feedback from the duty doctor. However, in India, we have made it a habit to not trust the duty doctor. One should realise that it is through his eyes that a senior gets to know the exact details of a patient’s condition. In the West, it is called delegated responsibility. But here, people want intervention only by the senior doctor. Practices are now evolving, but work is still more individual-centric than team centric.” 

Asked if the behaviour of doctors towards patients could improve, Dr Kumar replies, “You need to be more humble and respect the patient’s time, money and patience. However, sometimes patients feel that by paying an X amount of money, they have bought 24 hours of the doctor’s day. In fact, this is the only country where doctors can be reached directly on their mobile phones.”

A more serious worry for patients is a misdiagnosis or an operative mistake by a doctor. These are not common, at least in the better hospitals. But such horrors happen. A woman came close to losing her life after a muddled surgery at a well-known Mumbai hospital. She is afraid to talk about the case. “I’m still under their care. I don’t want repercussions. The medical lobby is strong.” All she says is, “Doctors should not recommend laparoscopy when a patient’s body type is not suitable for it. But sometimes they do, because it is more expensive than ordinary surgery. It is dangerous.”

Doctors offended by questions of professional integrity in the realm of medicine should note that the issue has been highlighted by cinema and books for years. This suggests that these suspicions are justified, not mere cynicism. Veteran Marathi actor Vikram Gokhale’s recent directorial debut, Aaghaat, is about the same subject. The film shows a junior resident doctor taking on a powerful senior over his orders to take out both ovaries of a female patient. She believes one of the ovaries could stay. The senior surgeon uses his clout to try getting the junior sacked. But she wins. The film is based on Dr Nitin Lavangare’sNishkarsh, the Marathi translation of an English book.

“The medical profession is a caring one, but scratch away at its façade and one sees a horrifying amount of fraudulence in the system,” Gokhale told a newspaper recently,

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“My movie shows someone from the inside speaking up about corruption [in medicine], but in general, the dishonesty of this profession goes on untroubled.”  

A senior executive at a top pharmaceutical firm believes that the practice of money-motivated medicine is a genuine problem, not just perception: “In the last ten years, a sizeable number of doctors have compromised [their profession]. There are hundreds of pharma companies in India; of these, a few are good. But competition is intense, especially for common drugs.” This results in companies plying doctors with ‘incentives’ to prescribe their drugs. All this is worsened by the doctor-patient relationship having taken a turn for the transactional, weakening the personal sense of responsibility one bears the other.

However, the executive says, this is not something that patients need worry too much about. “The doctor-pharma company equation does not come in the way of a patient’s treatment, as long as the patient is being given a quality drug.”

Besides, Dr Desai says, “What incentives are we talking about? This clock?” He points to a paperweight. “This moronic pen?” Fishes out a pen. “And don’t journalists walk out with gift bags after press conferences?” But these inducements, he avers, rarely cross the limits of acceptability. “Maybe a dinner or a sponsored trip to a conference. I don’t see any good doctor risking his reputation for these.”

According to the pharma industry veteran, “A bigger problem is nursing home rackets. These are always in a hurry to get patients admitted. You will be kept for periods longer than necessary and asked to spend on this or that.” Asked if doctors are set targets by the hospital management, he says, “I have heard of that.”

+++

The year 1985 is important from the point of view of Indian patients. It was when they got a forum through which they could fight for medical justice. This forum was called ACASH (Association for Consumers Action on Safety & Health). It was set up not by consumers, but mostly by doctors. Consumers could also go to ACASH if they wanted to invoke the Consumer Protection Act (CPA).

Dr Arun Bal, president of ACASH and a diabetic foot surgeon, says, “It was set up by founder members who were already involved in consumer activities. Back in 1985, there was no specialised consumer organisation working in healthcare.”

ACASH’s avowed objective is not to extract money from doctors by way of compensation, but help improve healthcare in India. It acknowledges that medical practice is riddled with problems. It is inaccurate, it also believes, to label doctors ‘commercial’ or ‘callous’. Some of the problems, in its view, stem from rivalry between doctors and the public sector’s declining role in Indian healthcare. “Our analysis shows that both doctors’ and society’s perception of each other is not based on facts,” Dr Bal says. “The perception of doctors that the CPA is being used to extract money from them is incorrect. Of all the consumer court cases in India, medical cases are about 3.5 per cent. Of these, only 25–28 per cent cases are decided in favour of consumers. Also, the perception of society that the medical practice and profession is full of negligence is not correct; as the analysis of complaints received by ACASH shows, adjudicable negligence is only 3–5 per cent.”

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Adds Dr Bal, “Our experience and analysis of cases handled by ACASH reveals that—one, many complaints are instigated by doctors or other healthcare professionals for professional rivalry; two, the majority of complaints arise due to infrastructural problems; three, in most complaints, there is some failure of communication—a skill that is not part of the medical curriculum; and four, ethical standards are in decline.”

The importance of effective communication exercised a Delhi-based senior dermatologist so much that he made a simple change that he recommends to all doctors.

“I have changed the manner in which I write prescriptions,” he says, “There is no point writing terms in Latin, which patients will not understand. I ask them to write instructions in their own handwriting, and in a way they will be able to understand later.” Patients and their families have so many questions, he adds, largely because doctors rarely discuss ailments openly.

That could change, believes Dr Bal, if healthcare is taken more seriously by the State. Right now, with the private sector’s role so strong, there is little pressure on the Government to enhance services.

+++

Doctors react with vehemence when told about the patchy public perception of their profession. They say that the discipline is like any other, with its share of bad apples. They are particularly touchy about being branded mercenary. “The same doctor who was God on day one becomes the Devil at the time of bill settlement,” complains Dr Vijay Surase, a Mumbai-based consultant interventional cardiologist.

Dr Sujeet Jha says, “You know, it is okay if patients drive SUVs. But if a doctor drives one, people think, ‘He must be cheating.’ I stay in Gurgaon, and a lot of my friends work in real estate and retail. They think I make a lot of money. But I don’t make half of what they earn. Moreover, it is unfair that a mall owner or journalist can earn a good salary without questions raised about his or her practice, but not a doctor. I think this perception that doctors have become more money-oriented stems from the fact that healthcare costs have gone up. But doctors get very little of that money.”

Dr Ajaya Kashyap, senior consultant and chief of cosmetic, plastic and breast surgery at Fortis La Femme, New Delhi, says, “Medicine is a business, there is no doubt about that. It is not social work… I would also like to add that contrary to popular perception, doctors don’t earn a lot of money. In India, orthopaedic surgeons get about Rs 20,000 or so for hip replacements; it is the prosthetics that cost much more. So one needs to maintain a balanced view.”Doctors insist that their need for earnings does not override ethics. Besides, think of the masochistic amounts of time and often money they expend on becoming doctors to begin with. A Mumbai girl doing her MBBS in a private college says, “I’m paying Rs 3.25 lakh a year for a four-and-a-half year course. That’s around Rs 15 lakh only for an MBBS, which alone no longer has much value—you’ll be working at a hospital at Rs 10,000 a month. I have to do a post-graduate degree. That is three more years of studies at Rs 4.5 lakh a year. Do the maths.”

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It does not end there. “I will be around 30 when I am through with the studies,” she says, “But who goes to a 30-year-old cardio specialist? Only when I’m 40 or 45 will I have the requisite reputation.”

The student adds, “When I was thinking of taking up medicine, I spoke to a few doctors for advice. One of them had a beautiful house on Napean Sea Road [in plush South Mumbai]. He said to me, ‘Don’t go by this. This is only because my family is affluent.’”

Says Dr Desai, “My 22-year-old son initially planned to become a doctor. Recently, he changed his mind. He said he’d do law instead. Part of me was sad, part of me was happy. The number of applicants to the Common Entrance Test for medicine is now one-third of what it used to be. I fear a scarcity of good doctors for future generations of Indians.”

As far as being curt with patients goes, doctors defend themselves by saying there are just too many patients, some of them annoying. “I will give you one example, no names,” says Dr Paresh Desai, “Big time lawyer. Child is 10-years-old. Second day of high fever, I say to the mother, ‘We will do a few tests. Maybe it’s typhoid.’ The mother says, ‘Doctor, last year he got malaria and dengue. Can it be malaria again?’ I tell her it isn’t, because we had tested for it three times: ‘Let’s not jump into anti-malarial treatment because it has its own problems.’ Her sister is a doctor in Los Angeles; three phone calls, four phone calls, and she says, ‘I think we should start anti-malarial treatment’ from 10,000 miles away. So I responded firmly, maybe even curtly. She got offended. I said, ‘See, I have an advantage over you. You may be the child’s aunt, but I have seen the child, you have not.’ It turned out to be typhoid.”

Dr Desai continues, “I would not have minded it had they taken a second opinion. They have that prerogative. But don’t tell me what to do from there. When you make dal in your house, I don’t tell you how much salt to add.”+++

So, is there hope for improved healthcare in India? And, in aid of that cause, what do doctors want of patients?

Answering the first question, Dr Arun Bal says, “There is unlikely to be dramatic improvement. However, as the market economy becomes predominant, market forces will push quality. This may make improvement mandatory. Also, public sector investment in health will increase, as higher economic growth without proper healthcare is not likely to work.”

What doctors want of patients is for them to stop being alarmed by the bills. They need to acknowledge that good healthcare costs money. “People are willing to buy an expensive phone, but cry foul if they have to invest in health,” observes Dr Sujeet Jha. “They say, ‘Chaar maheene pehle toh tests karvaaye thhe (I had got the tests done four months ago)...’”

Doctors also want patients to respect the fact that they have a family life too. Dr Jha says, “A lot of relatives come to me and say that their uncle in the US is a doctor and that I should discuss the diagnosis with him. Guess what, 90 per cent of the time, he will not pick up the phone… Expectations here are simply enormous. A patient’s family member once told me, ‘I will call you later when you are relaxing at home.’ I couldn’t

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help but ask him, if I spend that time talking to him, who will teach my son maths? ‘Why don’t you hire a tutor?’ came the reply. We also deserve a little time with our family.”

5. Role of Consumer Courts on Medical Negligence in India: Definition: The

commission of an act that the prudent person would not have done or the

omission of the duty that the prudent person would have fulfilled resulting in

injury or harm to another person. In particular in a malpractice suit, a professional

person is negligent if harm to a client results from a act or such failure to act, but

it must be proved by other prudent members of the same profession who would

ordinarily have acted differently under same circumstances

Elements of a Medical Malpractice case:

The burden of proving these elements is on the plaintiff in a malpractice law suit. More

important is that the plaintiff must show some actual compensated injury that is a result

of the alleged negligent care.

Caution may also be vigorously litigated issue because the physician may allege that

the injuries were caused by physical factors and related to the alleged negligent

treatment.

There is a limited time during which a medical lawsuit can be filed which varies per

jurisdiction & type of malpractice.

Not only doctors but also other medical professionals are liable under negligence act.

Not all injuries caused to the patient are liable under negligence act. Section 304A - IPC

deals with negligence and reads as - Causing death of any person by doing any rash or

negligent act not accounting to culpable homicide shall be punished with imprisonment

of either deception for a term which may extend to two years or with fine or both.

India has adopted the principle laid down in BOLAM case which held that a doctor is not

negligent if what he has done would be endorsed by a responsible body of medical

opinion in relevant specialty.

The BOLITHO TEST is another test that says that the court should not accept a defense

argument at being reasonable, respectable or responsible without first assessing

whether such opinion is susceptible to logical analysis.

Defence of a doctor against charges of Negligence:

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A doctor will be considered negligent in the following circumstances

Duty of care

Breach of standard of care or failure to exercise such duty of care (dereliction)

Injury or damage and reasonable foreseability of damage

Proximate cause between the breach and the injury

That he had no duty to the patient at the time of incidence or damage.

That he discharged his duties in accordance with the prevailing standard of medical

practice. That the damage was result of a third person who interfered in the treatment

without his knowledge or consent. That the patient did not follow his advice properly

(contributory negligence). That the damage complained of is an expected outcome for

the particular type of disease the patient suffered from. That the complaint should not be

entertained because it has already been tried once in court of law.

That the damage was the result of taking some unavoidable risk which was taken in

good faith in the interest of the patient with his or his guardians consent.

That the patient persistently insisted on the specific line of treatment which has caused

the damage in spite of doctors warning about the risk involved in treatment. If the

doctors professional performance falls below the standards of a reasonably competent

medical practitioner. If there is an overt evidence of negligence in diagnosis, treatment

procedure etc. Evidence of failure in undertaking all reasonable precautions. Evidence

of any other form of negligence in providing care and treatment.

Types of Negligence

-Criminal 

-Civil 

-Ethical Malpractice

Dr. N. B. Chandra Kala

6. A heated debate has been going on relating to the pros and cons of the application of the Consumer Protection Act, 1986 to the Medical Profession. The Medical Professionals are against the inclusion of patients under the category of

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consumers. They feel that for them their patients are something more than mere clients or source of profit making. To them the mention of �patient� as �consumer� is nauseating and inclusion of medical services within the ambit of Consumer Protection Act is equivalent to degrading the nobleness of their profession. They feel that in a poor country like ours, this will increase the hardships to the common patient and harassment to doctors. 

While agreeing broadly with these aspects, I think doctors should not forget that medical accountability has been existing since the birth of this sacred profession. This accountability has taken the latest shape in the form of Consumer Protection Act.Fears of doctors stem from what is perceived by them as the �unknown� . If this �unknown� becomes �known� the same would appear much less fearsome, in whatever form it exists. This is exactly what I have attempted to achieve through this book. 

I have tried to evoke awareness about the Consumer Protection Act as relevant to the Medical Profession. Ethical Codes which are so often lost sight of in our busy day-to-day lives, have been provided. What was the necessity of the Consumer Protection Act and its application to the Medical Profession ? Are there any alternatives ? What are the fears of the Doctors ? These are some of the issues which I have tried to address. Suggestions have been offered regarding precautions one should exercise to avoid problems.Information about Professional Indemnity Insurance Cover which has of late become available also finds place in the book. Synopsis of decided cases on Medical Negligence in India and abroad have been given for the benefit of readers. This will provide an insight into what should be done in order to get protection against legal action. 

Human element in medical care sometimes determines the patient�s / attendant�s reaction to an untoward event. Sources of discontent, such as, tactless handling or unnecessary unpleasant remarks, trivial indignation�s are the cause of a large number of legal actions brought against the doctors and the hospitals. I strongly recommend that appropriate behavioural aspects of patient-care should be regularly stressed upon all health-care personnel including all levels of hospital employees. 

7. INTRODUCTION: Medical profession is one of the most oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Aryans embodied the rule that, Vidyo narayano harihi (which means doctors are equivalent to Lord Vishnu). Since long the medical profession is highly respected, but today a decline in the standard of the medical profession can be attributed to increasing number of litigations against doctors for being negligent narrowing down to "medical negligence". Hospital managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods. When incidents like these began to rise, the Supreme Court intervened and pronounced that medical profession and professional could also be tried under the Consumer Protection Act (CPA), 1986.

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Negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the contract of human affairs would do which a prudent and reasonable man would not do. According to Charlesworth & Percy on Negligence(Tenth Edition, 2001) in current forensic speech, Negligence has three meaning. There are

        I.            A state of mind, in which it is opposed to intention

     II.            Careless conduct

   III.            The breach of duty to take care that is imposed by either common or statute law.

Medical negligence defined as – the failure to exercise rational caution and capability during diagnosis and treatment over a patient in accordance to the prevailing standards in force at that point of time. In case of Bolam Vs. Friern hospital management committee 1957, the test for establishing medical negligence was set. "The doctor is required to exercise the ordinary skill of a competent doctor in his field. He must exercise this skill in accordance with a reasonable body of medical opinion skilled in the area of medicine." InDr.Kunal Saha v. Dr. Sukumar Mukherjee and Ors., decided on 1st June,  2006, the National Consumer Commission summarised the medical negligence law as follows:

Real test for determining deficiency in service

        I.            Whether there was exercise of reasonable degree of care? 

     II.            The degree of standard or reasonable care varies in each case depending upon expertise of medical man and the  circumstances of each case.  On this aspect, it would be worthwhile  to refer to the enunciation from Halsbury's Laws of England.

The degree of skill and care required by a medical practitioner is so stated in (pr.36, p.36, Vol.30, Halsbury's Laws of England, 4th Edn.) 

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Failure to use due skill in diagnosis with the result that wrong  treatment is given is  negligence. Neither the very highest  nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body  of adverse opinion also exists among medical men; nor is a practitioner necessarily negligent if he has acted in accordance

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with one responsible body of medical opinion in preference to another in relation to the diagnosis and treatment of a certain condition, provided that the practice of that body of medical opinion is reasonable."

 Medical profession has been brought under the Section 2(1) (o) of CPA, 1986. In a significant ruling in Vasantha P. Nair v Smt. V.P.Nair I (1991) cpj the national commission held a patient is a ‘consumer' and a medical assistance was a ‘service'. A doctor is held liable for only his acts (other than cases of vicarious liability). Vicarious liability arise in case of government hospital though doctor responsible but hospital has to pay the compensation.

It is well known that a doctor owes a duty of care to his patient. 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. Supreme Court make it obligatory in  Parmanand Kataria vs. Union of India case  that "every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life" .

Incidence of "medical negligence" can also decide bymedical council of india. Medical council of india is a statutory body deal with high standards of medical education and recognition of medical qualifications in India. It registers doctors to practice in India and promote the health and safety of the public. In many cases national commission accept the credibility of council's verdict  in medical negligence . Medical council of india guided by the Medical Council Act 1956.  But now days question raise relating to the working ability of medical council of india , PIL filed in the Supreme Court by "People for Better Treatment" (PBT) in 2000 (W.P. Civil No. 317/2000), it was unraveled  that the failure of the council to perform his duty.

Extended ambit of medical negligence

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The National Commission as well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals.

In Supreme court land mark decision Indian Medical AssociationVs V.P. Shantha and Others III (1995) C.P.J laid down certain guideline for medical negligence and  define efficiency of consumer protection. It has held certain exception like

Service rendered to patient in (free of cost or charity) by a medical professional would not fall under the definition of ‘service' under consumer protection act1986.

Service rendered by a doctor under contract of personal service was not covered in consumer protection act 1986.

Proof of negligence

The principle of Res-Ipsa-Loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. The Hon'ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969 Supreme Court page 128 has held the above view that  "All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the Complainant, it means he has the task of convincing the court that his version of the facts is the correct one". In Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr., 1998 CTJ7 National Commission held that expert opinion in medical negligence played an effective role.

Criminal negligence

Provision under the Indian Penal Code – Section 304A which covers acts of medical professionals. According to this whoever causes the death of the person due to negligence or a rash act, not amounting to culpable homicide, can be tried and suitably punished with imprisonment for 2 years or fine or both. Sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 all cover the acts of medical malpraxis.

A judgment in Jacob Mathew vs. State of Punjab in 2005 (6 SCC 1) has made profound impact in a backward direction for appropriate adjudication of medical negligence cases in India.  Supreme Court of India defined ‘criminal negligence' under this case and held that "to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do".

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A Bench of Mr. Arijit Pasayat and Mr. C.K. Thakkar observed that the words "gross negligence" or "reckless act" did not fall within the definition of Section 304-A IPC, defining death due to an act of negligence or the culpable homicide not amounting to murder.Between Civil and Criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing with a higher degree of morally blameworthy conduct.

Conclusion

Doctors should be more careful to perform their duties. Gross Lack of competency or gross inattention, or wanton indifferences to the patient's safety can only initiate a proceeding against a doctor .  Consumer dispute onle deal with compensation part. But its procedural aspect is too lengthy. It should disposed cases in speedy way. A healthy medical environment can create a great society.

8. $7.8 Million Awarded in Hospital Negligence Case:New Jersey residents who have suffered injury in a hospital resulting from poor or unprovided treatment will be interested to learn about a huge recovery in a medical malpractice suit in the South. In a recent decision, a Tennessee Circuit Court awarded $7.8 million to the family of a boy who suffered severe brain damage after improper treatment by multiple medical professionals in a Tennessee hospital.The 12-year-old boy at the center of the hospital negligence case became injured after he fell on a nail at an amusement park. He subsequently contracted flesh-eating bacteria after hospital staff made a medication error and failed to properly treat the cut caused by the protruding nail. As a result, the boy slipped into a coma that caused severe brain injuries. He also needed multiple skin grafts to fight the damage the bacterial infection caused.A patient can file a hospital negligence claim if a doctor or hospital made a negligent mistake in treatment or failed to provide proper treatment. A victim of hospital negligence may seek damages from the doctor who treated the patient and from the hospital itself. The family of the boy in Tennessee sought compensation from the amusement park where he was injured, the doctor and nurse practitioner who initially treated him and the hospital where he was treated.In some cases, a hospital may be protected from liability by calling a doctor an independent contractor rather than an employee, thereby distancing the relationship and shielding the hospital from responsibility as an employer. New Jersey requires that any disciplinary action taken against a health care professional be reported. An attorney can help by investigating the relationship between the hospital and the doctor to determine where true liability lies.

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Damages in a civil liability case involving hospital negligence can take into account past and future medical bills, pain and suffering and a variety of injuries expected to extend into the future, like loss of earning potential. The Tennessee case is an example of a very large award, and the decision may be appealed. But, it is an important reminder that compensation is available for the injured and their families in cases of hospital negligence.

CASES: A doctor of a private nursing home at Puttur paid Rs 2.35 lakh to a patient after the National Consumer

Forum upheld the verdict of District Consumer Forum pertaining to negligence during delivery. In 1995, Latha P Shetty of Puttur lost her child during delivery and the patient had approached the consumer court. Advocate Subrahmanya Prasad Kalmada argued for the patient.

The negligence of the doctors of Christian Medical College and Hospital could prove dangerous for a patient Renu Aggarwal who had been operated upon by the doctors on October 4th and the doctors left their instrument called clamp in her body. The relatives of the patient staged a protest in the hospital and administration of the hospital has suspended the accused doctors after marking an inquiry in the case.

‘Doctors can be guilty of negligence even if it is not life-threatening’Rebecca Samervel, TNN | Sep 10, 2012, 01.29AM ISTMUMBAI: The National Consumer Disputes Commission has observed that doctors can be held guilty of medical negligence even if it does not spell life-threatening but reasonable degree of care is not taken while deciding on a line of treatment or treating a patient. 

The commission ruled this after a Delhi-based woman had to undergo a third surgery in Mumbai, as a doctor found that a gauze mop had been left in her abdomen following two surgeries. Those operations were done in Delhi. Seventeen years after the first surgery, the doctors responsible have been ordered to pay the woman Rs 50,000 as compensation. 

In her complaint before the State Consumer Disputes Commission, Kamla Devi said that on November 13, 1995, she was hospitalized with abdominal pain and vomiting. She was under the treatment of Dr R K Jain and Dr S Mehta. Even after her surgery, she continued to be in severe pain and on Dr Jain's advice, she was re-admitted to the hospital, the complaint stated. This time, Kamla was operated upon for a burst abdomen and discharged on December 4, 1995. 

Following the second surgery, Kamla's condition reportedly deteriorated. She again visited the hospital and Dr Jain advised another surgery. But on the advice of her relatives, she came to Mumbai in January 1996 and was admitted to a hospital, where it was found that she had a gauze mop in her operated wound, which had become infected. During the third surgery, the mop was removed. After she was discharged from hospital, Kamla lodged a complaint before the state panel for the pain and agony

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she suffered due to Dr Jain and Dr Mehta's rash and negligent act. She also lodged a criminal case, which is pending. 

Denying the allegation, the doctors and hospital said the presence of a foreign body in the abdomen was false because an x-ray following the first surgery did not show any abnormality. It was further contended that there was a possibility that the lapse could have occurred in another hospital where she went for treatment. The state commission, however, held the doctors and the hospital guilty in 2007. 

Aggrieved, the doctors filed an appeal in the national commission, which too refused to accept the doctors' version. The panel said Kamla had a point when she contended that had she indeed visited another hospital, she would have told the Mumbai doctor about it. Referring to the doctors' argument that it did not risk Kamla's life or health, the commission cited Supreme Courtjudgments. In a similar case, the SC had concluded it indicated that reasonable degree of care was not taken and so it amounted to medical negligence. "We conclude that the appellants are guilty of medical negligence and deficiency in service and uphold the order of the state commission," the commission said. 

Two doctors in Delhi have been asked to pay a woman Rs 50,000 as compensation after it was found that they had left behind in her abdomen a gauze mop during a surgery.

Every Life Is PreciousEpisode 04: Does Healthcare Need Healing?

People trust medical practitioners, believing that they are equipped with the knowledge and skills to

safeguard their health. But when this knowledge is misused to exploit this trust, medical care

becomes a nightmare. The profession is riddled with unscrupulous doctors and hospitals out to

make big bucks at the cost of patients, but there are still medical practitioners who stand up for the

Hippocratic Oath, and those who want to clean up the profession.

I ran with my dying wife from Nanavati to Cooper to KEM to JJ

Posted On Thursday, April 26, 2012 at 11:06:02 PM

This newspaper has run a series of stories on the hit and run accident that led to the death of the wife and unborn child of a construction labour in Juhu.

The circumstances that led to the accident; the police's hunt for the mystery man who dropped Ram and a bleeding Reena Kutekar to the hospital but fled soon after; and finally, his surrender ten days later at the insistence of his family after they had read about it in Mumbai Mirror.

But there is a larger story that still remains to be told.

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Ram Kutekar's desperate hunt for a doctor and hospital that would save his wife's life, and his frantic 16-hour journey from Nanavati to Cooper to KEM to JJ Hospital across Mumbai puts the spotlight on everything that is wrong with emergency medical services in the city. And why its poor can never bank on them.

• First, Nanavati Hospital refused Reena the operation she so urgently needed because her husband, a daily wage worker, couldn't put together a deposit of Rs 25,000 (He was falling Rs 10,000 short, which he promised to raise as soon as he could).

• At Cooper Hospital, the next stop, there was no CT scan facility which meant Reena had to be taken to a private clinic close by leading to precious loss of time. The results showed Reena had suffered serious head injuries and needed urgent surgery.

• But Cooper had no neurosurgeons on call at the time, so Ram was asked to take his wife, battling for her life, to KEM Hospital in Parel.

• At KEM, there were no beds available in the ICU. Ram was told to head to JJ Hospital.

• By the time Reena was put on a ventilator at JJ, it was 11 pm. The neurosurgeon that operated on her told Mumbai Mirror she was in critical condition when she was brought in - “her brain was swollen, her blood pressure had dropped alarmingly”.

Reena - five months pregnant - died three days later. The baby inside her, doctors said, had died one day before her.

“It’s not just that young man who killed my wife,” says Ram Kutekar sitting in a cramped room in a Vile Parle chawl. “The doctors are equally responsible.”

In the Hipporcatic Oath which all doctors have to swear by before their passing out, there’s a line that reads so: “I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person’s family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.”

There is also a Supreme Court directive that says emergency patients must enjoy all the rights of a consumer even before they pay any money to hospital. Nanavati management, however, insists the hospital flouted no norms, as it was only at the second level of treatment that they asked for the deposit. “We admitted the patient, thoroughly examined her, and concluded she needed ICU care,” Dr Ashok Hatolkar, Medical Superintendent at the hospital, said. “Our policy clearly states that a deposit of Rs 25,000 has to be paid upfront for an ICU admission.”

The distinction between the first and second line of treatment is specious. Reena Kutekar was examined merely physically. There were no tests run to gauge the extent of her concussion. Tests she needed urgently and which, as later events proved, could

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have saved her time.

“I remember waiting nervously at the reception as Reena was taken for a preliminary examination. Then the doctors told me she would have to be shifted to the ICU. This was at around 8.30 am… the nurse came around and asked for a deposit of Rs 25,000.”

Ram had around Rs 200 on him, and Siddharth Pandya - the man who had been behind the wheel, and who had dropped them to the hospital - was his only hope. He spent 20 minutes looking for him… in the car park, in the washrooms. By this time, Ram was joined by his brother Sachin, and sister-in-law, who he had asked to rush to the hospital with as much cash as they could manage. “We were still falling short by over Rs 10,000,” he says, “I pleaded with the doctors to not stop the treatment, while I arranged for the money.”

Instead, Nanavati provided Ram with an ambulance - for which he paid Rs 600 - to take them to Cooper Hospital. “By the time we got there at noon, my wife’s condition was deteriorating, I was told that she was bleeding internally, and that the injuries to the head could prove fatal.”

Following the CT scan at a private clinic, which cost Rs 3000, Reena was put on a ventilator and Ram was asked to wait. At around 4 pm, the Cooper authorities said no neurosurgeon was available, and suggested Ram take his wife to KEM Hospital in Parel. “All this time, I kept telling myself that the doctors knew best; that my wife was in safe hands and that she would be alright. I followed their instructions, ran from Nanavati to Cooper to KEM. I told the doctors that they were like gods, and that they had the power to save my wife and our unborn child. They kept saying, ‘don’t worry, just take her to so-and-so hospital’,” he says.

By the time the couple reached KEM, more than eight hours had passed since the accident, and here they encountered the most common problem poor patients face in Mumbai: No beds. “I was told there was a long waiting list, that the ICU was packed beyond capacity. The authorities asked me to try my luck at JJ Hospital,” he says. Yes, the words emergency medical services and luck are closely linked in this city, and unfortunately, the Kutekars had none.

While Reena was operated upon at JJ, she passed away three days later. When Mumbai Mirror spoke to neurosurgeon Velu Varnan, he said she had been brought there in “extremely critical condition”.

Nanavati Hospital authorities say they “sympathised” with the victim’s family, but add that they were “helpless” under the circumstances. Medical Superintendent (Nanavati Hospital) Dr Ashok Hatolkar said, “We never flouted any directive. From our end, we did everything we could to help the victim. We only asked for the deposit at stage two, which is ICU treatment and surgery. It is unfair to blame the hospital for the death. We treat poor patients who ahve requisite documents but can’t treat everybody as we don’t get funds from the government.”

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Ram, who earns around Rs 4,000 a month working as a daily labourer, says Reena supplemented the family’s income by working as maid. “Just a few days before the accident, I had told her to stop working as she was more than five months pregnant. In a matter of hours, my family was gone.”

On paper there are several schemes to enable the poor patients to take treatment at the private hospitals. The newest of them all is the Rajiv Gandhi Jeevan Dayi Yojna that promises free treatment for over 972 ailments. The problem is, none of the private hospitals want any part of it. These hospitals feel that the price list offered by the government is extremely low and they want a better price to be a part of the scheme. Medical superintendent of south Mumbai’s Jaslok Hospital, SK Mohanty, says, “We had agreed to be a part of the scheme assuming that the rates would be fair if not at par with our charges. But the rates are so low that we would have to bear huge losses if we agreed to be a part of this scheme.”

For instance, the state has set the cost for a bypass surgery at Rs 1.30 lakhs while packages at most hospitals are above Rs 1.65 lakhs. For an angioplasty, the state has set the cost to Rs 50,000 while the actual packages range from Rs 1 lakh and above depending on the make of the stent.

“We need a viable policy or else we won’t be able to run our hospitals with the new scheme. Also, the government should not force us to be a part of this scheme and it should be left to us to sign the agreement or not,” says president of Association of Hospital (AOH), Dr Pramod Lele.

The hospitals say that they already need to keep 10% of their beds reserved under the Bombay Public Trust Act (1950) for the poor. In addition to this, they have to set aside 2% of their revenue as an Indigent Patients Fund (IPF) for subsidising treatment for poor patients. If they are asked to be a part of this new scheme as well, they will not be left with any profits.

The IPF is yet another scheme aimed at benefiting those below poverty line which has hit a roadblock, again due to the negative response from these hospitals.

In this case, private hospitals claim that they were not properly explained the details of the scheme. “We were under the impression that the state will pay us some minimum amount under the scheme for the two per cent indigent patients that we already treat as per the charity commissioner’s rule. However it turned out that we were expected to treat yet more poor patients,” says a senior doctor attached to a private hospital on condition of anonymity. “We will suffer losses running into crores of rupees if we start doing charity this way,” he adds.

The government on the other hand had already collected a database of over 2 crore people across the state who will be benefited under the scheme. While earlier, the state had made it optional for the private hospitals to join the scheme, recently they

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announced a compulsory reservation of beds under the scheme. Early this month, health minister Suresh Shetty requested the chief minister to consider withdrawing the compulsion.

Last year, more than 14,000 people were benefited under the scheme and the state spent over Rs 110 crores. However, the scheme covered only four diseases and several hospitals complained about delay in payments.

QUOTES:

Whenever a doctor cannot do good, he must be kept from doing harm.- Hippocrates