Chapter: 6.1.2 Demand of Exorbitant fee

Demand of Exorbitant fee:

While the National Commission agreed with the observation of the State Commission that fees paid for operation also includes post operative care, the same was held to be the duty of the concerned institution and not that of the private doctor. The National Commission reversed the decision of the State Commission, Maharashtra in B.S Hedge v/s Dr. S. Bhattacharya and Cross Appeal, 1994(2) CPR 61 (NC), awarding compensation on the grounds that the doctor acted negligently in performing the operation and rendering inadequate post operative care and treatment, holding that there was no evidence of deficiency in service on the part of Opposite Party either in performing the operation or rendering adequate care and treatment.

Hon'ble Commission further observed as follows:
"As rightly observed by the State Commission, how much to charge as fees for medical services is the choice of the medical practitioner, even though it may be excessive, unreasonable and unjustifiable.”

Further it was held
"The demand and acceptance of an exorbitant fee cannot be deemed to be deficiency in service."

Thus it is now established that adjudication of claims against medical professionals has to be based on expert opinion/evidence and should be circumspect so that false and vexatious complaints are not filed merely to harass the doctors who provide a very important service to the community.

Special Circumstances:
1. Where a patient suffered a heart attack when a minor operation was being performed, the same does not constitute deficiency in service rendered.

In Sethuraman Subramaniam Iyer (Applicant) v/s.Triveni Nursing Home & Anr. I(1998) CPJ 10 (NC), the complainant alleged medical negligence and deficiency in service on the part of Respondents. Complainants' wife, who was suffering from sinusitis, was advised a minor operation. Before she was operated, she suffered a massive heart attack and died.

State Commission dismissed the complaint based on operation notes. Appellant has contended that operation notes were fabricated and were prepared after the death of the Complainant's wife. The National Commission held as follows: 'In our view, the State Commission was right in holding that there was no negligence on the part of the Respondent. The State Commission rightly analysed and appreciated the material placed on record. The State Commission arrived at the finding after taking into consideration the totality of the circumstances. No case is made out by the appellant for interference with the order passed by the State Commission.

2. Where Medical Negligence was not proved:
State Commission Maharashtra upheld the dismissal of a complaint by District Forum Sangli in F.A No.142/95 in the matter of KASHIRAM BHIMRAO KAMBLE V/S DR. UDAY A. PATIL AND ANR, and held as follows:

"We feel that the detailed discussions of the circumstances made by the District Forum calls for no interference. There is no negligence on the part of the Respondents. Of course it is unfortunate that complainant has lost his wife who was around 45 years of age. But all the same, no fault could be found or negligence could be attributed to the Respondents. We are therefore unable to sustain the claim of the Complainant and dismiss the appeal with, however, no order as to cost."

Brief Facts Of the case:
Complainant and his wife had been regular patients of Dr. Kulkarni. Dr. Kulkarni never saw or witnessed any allergy to any antibiotics in the case of Kasturi, wife of the appellant. Therefore Dr. Kulkarni had no reasons to suspect that ampicillin will cause her allergy. Dr. Patil is the eve surgeon who prescribed medicines for eye treatment. Dr. Kulkarni was careful to engage the services of Dr. Naik, dermatologist. Kasturi w as taken to Walness hospital on 1.9.94 for further treatment of Steven Johnson Syndrome (loss of skin). She was there for 4 days and died on 5.9.94 and the cause of the death was Septicemia due to 75% skin loss due to drug reaction and this is known as 'Steven Johnson Syndrome.'

Reasons:
Both the doctors were not aware of Kasturi's allergy to penicillin or other allied medicines. But all the sane, Kasturi had improved in the hospital of Dr. Kulkarni. The appellant took her away to Walness hospital without justifiable cause. Apart from that, it can be gathered from the evidence of Dr. Shahpurkar, Dr. Chadda and Dr. Tekale that treatment given to Kasturi in the hospital of Dr. Kulkarni was proper in given circumstances of the case. Now in this matter, we must observe that Dr. Dewed who was a member of the District Forum has rather contributed his original thought.

Dr Dewan has opined that under the medical ethics, there is absolutely no duty to refer or consult the experts except where the patient requests the referral or the consultation in doubtful or difficult case/s or if the quality of care and management can be conceivably enhanced by referral or consultation. He also stated that the Steven Johnson Syndrome is a self-limiting disease and rarely involves several mucous membranes and internal organs producing a major syndrome.

Therefore as the deceased was making satisfactory progress the patient should not have been removed to another hospital. Therefore it is difficult to conclude that either of the respondents was responsible for the death of Kasturi.

3. The fact that patient has not recovered does not by itself prove Medical Negligence:
The State Commission, MvIaharashtra in SMT. NIRMALA R PARAB V/S DR. KALPNA DESAI & ORS, COMPLAINT NO. 87/92 (facts of this case have been discussed in the previous chapter) dismissed the Complaint by an elaborate order, brief particulars of which are given below:

This complaint was filed by Shri R.S. Parab, father of Firs. Ashwini Rane on behalf of his daughter, who is like a living vegetable and is unable to understand anything around her. Ashwini was under treatment of Or. Kalpana Desai from the 5th month of her pregnancy. Since she had a previous history of miscarriages, Dr. Desai had put sutures on the womb of the patient and informed that the same will be removed on 2nd May, 1990 as the expected date of delivery was 12th May, 1990. On 23.4.90 Ashwini delivered a baby boy for which a cesarean operation was necessary. The patient was told that she should be admitted to another hospital where equipment/facilities and emergency treatment were available as the blood pressure had suddenly fallen and so had the pulse. Thereafter she was transferred to another hospital. But as the patient could not afford the expenses she was again shifted to Lokmanya Tilak Hospital at Sion. Patient was still in coma. Eventually she was shifted home with the hope that she might regain consciousness in a homely atmosphere. She is a living vegetable and still under medical treatment. It was alleged that excess dose of anesthesia caused hypoxia of the brain leading to brain death. It was further contended that the anaesthetist did not maintain an airway which is mandatory, whereas it was done with endotracheal tube. Complainant prayed for a compensation of Rs. ten lakhs.

Reasons:
O.P No.2 was talking to the patient while the operation was being performed at which time the patient was alert and conscious. There were no signs of adverse effects of anesthesia on pulse and B.P. To the patient's query she was informed that she has delivered a son and she was found happy. While the uterus was being stitched, after checking, Calmpose 5mg was given in diluted distilled water. Suddenly it was noted that the pulse had disappeared and B.P not recordable.

An affidavit filed by Dr. Diwakar Patkar has opined that all normal norms and steps of surgery were followed and there were no dangerous mishaps during this operation. The phenomenon of cardiac arrest is a known complication and that could take place inspire of all adequate precautions taken.

Lastly the Commission has generally observed that the patients have a tendency to blow out of proportion the grievance against the doctors. When the patient does not recover, the patient presumes that the doctor is responsible for his ill health.

4. Code of Medical ethics and 'right to lifer a fundamental right:
Dr. Tokugha Yepthomi V/s Apollo Hospital Enterprises Ltd. & Anr. III(1998) CPJ 12 (SC).

Brief facts of the case:
The Appellant after obtaining MBBS degree from Jawaharlal Institute of Post Graduate Medical Education and Research, Chandigarh, completed his internship and junior residency at the same college. Later he joined the Nagaland State Health services as Assistant Surgeon Grade -1. One Itokhu Yepthomi who was ailing from a disease that was provisionally diagnosed as Aortic Aneurysm was advised to go to the Apollo Hospital at Madras and the Appellant was directed by the Government of Nagaland to accompany the said patient to Madras for treatment. The appellant and one Yehozhe who was the driver of Itokhu Yepthomi were asked to donate blood for the latter. Their blood samples were taken and the results showed that appellant's blood group was HIV(+ve). In August, 1995 the Appellant proposed marriage to one Ms. Akali which was accepted and the marriage was proposed to be held on December 12th 1995. But the marriage was called off on the ground of blood test conducted at the Respondent's Hospital in which the Appellant was found to be HIV(+ve). Since the marriage had been settled but was subsequently called off, several people including members of the Appellant's family and persons belonging to his community became aware of Appellants HIV (+) status. This resulted in severe criticism of the Appellant and he was ostracised by the
community. The Appellant left Kohima (Nagaland) and residing in Madras.

The Appellant then approached the National Commission for damages against the respondents, on the ground that the information, which was required to be kept secret under medical ethics, was disclosed illegally and therefore the respondents were liable to pay damages. The Commission dismissed the Petition on the ground that the Appellant may seek his remedy in Civil Court.

Learned Counsel for the Appellant has vehemently contended that the principle of 'duty of care' as applicable to persons in medical profession, includes duty to maintain confidentiality and since this duty was violated bv the respondents, they are liable for damages to the appellant.

It was held by the Hon'ble Supreme Court that as a human being, As. Akali is entitled to all human rights as available to any other human being. This is apart from and in addition to the Fundamentals Rights available to her under Article 21, which guarantees "Right to life" to every citizen. This right would positively include the right to be told that a person, with whom she was proposed to be married, was a victim of a deadly disease, which was sexually communicable. Since right to life includes right to lead a healthy life, the respondents by their disclosure that the Appellant was HIT (+) cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover where there is a clash of two fundamental rights, as in the instant case namely, Appellant's right to privacy as part of right to life and ~Is.Akali's right to lead healthy life which is her fundamental right under Article 21, the right which would advance public morality or public interest, would alone be enforced through the process of Court for the reason that moral considerations cannot be kept at bay and the judges ,are not expected to sit as mute structures of clay in the Courtroom but have to be sensitive in the sense that they must keep their finders firmly upon the pulse of the accepted morality of the day.

It was further held that the Code of Medical Ethics carves out an exception to the rule of confidentiality and permits disclosure in the circumstances enumerated above under which public interest would override the duty of confidentiality, particularly where there is an immediate future health risk to others.

5. Professional ethics vis a vis Commission charged for CT and MRI Scan etc.

An Enquiry was conducted by the Indian Medical Association on the allegation that certain doctors take commission for CT, MRI scans.

In an Indian Express report from Thiruvananthapuram dated September 20, 1998, in its issue of 21.09.98 it has been stated that the Ethics Committee of the Indian Medical Association headed by Dr. K. Mohan Kumar, has come out strongly against doctors accepting commissions for referring patients to CT scan centers.

Many scan machine owners told the Committee that they were forced to pay commission out of fear that doctors might stop referring cases to them. The doctors charge the commission as 'IC' Interpretation charged. While thousands of Xrays are taken at these centers, except for a few doctors, none demanded for "interpretation charges".

The committee pointed out that X-rays and scans were part of investigations and the doctors who prescribed them should be able to read them without charging a fee on it.

It said that the charges levied from patients ranged from 30% to 50% of the scan charges. The committee said that this is nothing short of deceiving a patient who came to a doctor with utmost trust and belief that he or she would get relief from his/ her ailments. The doctors could claim their consultation fees, but not a commission on an investigation that they have prescribed. The ethics committee further said that both doctors and the scan centers were equally responsible for this corrupt practice. However now the public was becoming aware of the commission system and was annoyed and angry at this malpractice. Commission has warned the doctors, holding that acceptance of commission is highly unethical and amounts to malpractice.