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23 February 2009
by MS Kamath
Mumbai, India

Cops will be penalised if they take action against doctors without medical opinion
Medical negligence cases need expert opinion: SC Medical negligence cases need expert opinion: SC
In a blow to the consumer movement, the Supreme Court has held that medical negligence cases in all courts may proceed only when the same are scrutinised and approved as 'Genuine' by a doctor. The court laid down further guidelines which mandated that a criminal case in which the police took action against a doctor without medical opinion would lead to penal action against the cops.

However, medical practitioners are a closely bound group who often criticise colleagues on treatment modalities and accuse fellow doctors of negligence to patients, but rarely step forward to testify against them in medical trials. There are many who believe that if they were to speak against a fellow colleague, they in turn would be vulnerable to similar action by other colleagues who would ostracise them and wait for an opportunity to get back at this 'back stabbing'.

The consequence of this has been that victims of medical negligence have to run from pillar to post to prove their case. Even in cases of gross negligence where a surgical mop is left in the abdominal cavity, it is impossible to find a doctor who will testify this as 'negligence'.

On the contrary, there are several doctors, who would be more than wiling to rush to the aid of a colleague in distress and say that the doctor who has done some alleged act of negligence acted with due care and conscience and the consequences were unintentional and 'cannot be termed negligence'. People who work in the field of medical law will henceforth have a tough time to prove their cases. Most cases would formerly be proved by the aid of textbook references or by appealing to common sense, (as in the case of a foreign body left behind in a cavity). It appears this rational approach will now come to an end if consumer courts strictly enforce the Supreme Court's ruling.

The other worrying aspect of the judgment is the fact that consumers with complaints of medical negligence will now have to satisfy two sets of bodies: the medical expert panel and the judges. Unfortunately, medical councils, which were supposed to be watchdogs, have lost public confidence as many see them as unions of doctors.

While doctors may rejoice at the new ruling, the joy may be short-lived. Public anger has strange ways of exploding and the medical profession itself is well aware that violence against doctors, hospitals and nursing homes has been rising alarmingly. The new judgment may give a fillip to such vigilantism.

The poor consumer, who has a grievance against medical practitioners, will have to approach other medical professionals and beg for some mercy and justice from the same set of people who have wronged him.

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