Chapter 35: How to Complain Effectively: The Legal Options
|How to Complain Effectively: The Legal Options
The vast majority of patients are usually completely satisfied with their medical care and are grateful to their doctor. However, in some cases, problems can occur, and you need to know what steps you can take if you are unhappy or dissatisfied with the outcome of your treatment.
In the first instance, you should try to resolve the problem as quickly as possible. Talk to the doctor or the hospital administration to try and settle matters at the earliest, especially with regard to minor complaints ( such as rude staff, telephone calls not being returned or unpalatable hospital food). Most complaints originate due to seemingly trivial problems.
If however, if you have a serious complaint about your medical care, and if you are convinced that your doctor has been negligent, you can take appropriate action. However, do remember that just because the outcome has not been satisfactory ( for example, a patient dies during surgery) , it does not necessarily mean that the doctor has been negligent or irresponsible! There are many reasons why patients do not do as well as expected; after all, medicine is an inexact science which deals with many biological variables that are beyond anyones control. Consequently, in spite of the best care, a patient may die or his condition may become worse.
There are many avenues open to you to get redressal, and you may choose any or all of them. For instance, you can make a complaint to the local professional medical body, usually the state medical council. The appropriate medical council can punish the doctor: for example, by removing his name from the medical register, if he has been found guilty of serious professional misconduct, either permanently, or for a specified period, so that he can no longer practice medicine.
One should bear in mind that state medical councils are generally comprised of physicians. This factor implies that they are more likely to be on your doctors side rather than yours! Since they have a personal and professional kinship with other members of their fraternity, it should come as little surprise that these councils unfortunately have not developed a good reputation for policing doctors effectively! That is why, when complaining to medical councils, it would be prudent on your part to be represented by a skilful lawyer.
In reality, the odds are extremely small that your complaint will result in a physician being disciplined. However, this eventuality does not mean that you should not file a complaint: you should! The most logical reason to file a complaint is that it might alert future patients of the delinquent doctor to his unhealthy practices. Also documenting your unsavory experience could prevent others from being victimized. Moreover, your action may help to keep the doctor more honest in the future! Remember that the ideal way of exposing shoddy and unprofessional doctors is through making a public disclosure and creating public awareness.
If you have been unable to obtain a satisfactory response to your complaint, you may even need to turn to the courts to settle your dispute.
Doctors are no different from other professionals, and, from a legal point of view, when a doctor treats a patient, the doctor and the patient have entered into an implicit contract. A doctor-patient contract requires that the doctor must carry out the following duties:
In order to achieve success in litigation for negligence, the patient (or consumer) must be able to establish to the satisfaction of the court the following conditions:
The burden of establishing all four conditions falls upon the patient, and failure on his part to provide substantive evidence on any one condition may result in no compensation being paid. Proving medical negligence is, consequently, very difficult. The fundamental requirement for building up a convincing case rests on the availability of medical experts willing to testify on your behalf; and such experts can be difficult to find, because doctors are very reluctant to criticize other doctors.
Before taking legal action, you should carefully consider all the implications and repercussions. The process can be a very long and expensive one. You must also ascertain precisely what you want to achieve by initiating litigation. Do you merely want an apology from the doctor? Are you angry with the doctor because you feel he was careless and you want to seek revenge? Do you want to expose the doctors incompetence to the public to protect other patients? Do you want monetary compensation? While all or any of these objectives may provide sufficient reason to go to court, do remember that medical malpractice lawsuits are powerful double-edged weapons which should be used only as a last resort. Not only can such lawsuits damage a good doctors reputation, they can also create a lot of tension between patients and doctors in general. Let me point out, in this context, that unnecessary and excessive medical litigation has led to the regrettable situation in which American medicine finds itself today, in which both doctors and patients have become losers.
In order to help aggrieved patients get redressal more easily, in 1997, the Indian judiciary ruled that doctors would be covered under the Consumer Protection Act (CPA). This decision was hailed as a major step forward in protecting the patients interests, since the process of approaching the Consumer Dispute Redressal Forum was designed to be much easier and less expensive than going to court. However, as is typical in India, this forum has also got bogged down by a huge backlog of cases. Consequently, patients continue to face an uphill task in getting justice!
A serious fallout of the CPA is that doctors have now started feeling threatened by it. As a result, many of them have started practicing defensive medicine in order, to defend themselves from a potential lawsuit, in case things go wrong. Such a development has led to unnecessary tests being performed, most of which are not needed to improve your medical care, but for which you will, perforce, have to foot the bill! For example, while medical studies have repeatedly shown that skull X-rays offer little useful information in patients with uncomplicated head trauma, such X-rays are usually performed routinely in order to protect the physician from future lawsuits. (Unfortunately, lawyers and judges still seem to think that testing is a sign of good and attentive care.)
In the final analysis, in my opinion, the best way to resolve claims of medical malpractice and negligence are to prevent them from arising in the first place! And, as an active patient, you can, and should, take appropriate measures to protect yourself - dont blindly depend on your doctor!