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Fw: [Quality_of_Medical_Education] Re: [hosp_admn_india] Right to emergency health care; Consumer court awards Rs. 3 lakh against a private practitioner

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  • surendernikhil gupta
    While going through details of PIL, I also came across the below noted judgement from Supreme Court of India which has been marked in blue text. It needs to
    Message 1 of 1 , Sep 1, 2010
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      While going through details of PIL, I also came across the below noted judgement from Supreme Court of India which has been marked in blue text. It needs to be examined  on the context of Right to emergency health care; Consumer court awards Rs. 3 lakh against a private practitioner.

      Parmanand Katara V. Union of India - AIR 1989, SC 2039 :- Supreme Court held in the Public Interest Litigation filed by a human right activist fighting for general public interest that it is a paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible without waiting for any procedural formalities.

      Experts comments invited:

       
      Thank you very much.
      With warm personal regards,
       
      Nikhil
      Dr. Surender N. Gupta,
      MBBS; PGDHHM;PGDMCH;PGCHFWM;
      FAIMS;FIMS;MA (Phil);MAE (Epidemiology)
      Faculty, Regional Health and Family Welfare Training Centre,
      CHHEB, Kangra-Himachal Pradesh, India.
      Pin-176001.
      01892-265472 (Fax); 01892-263472 (Office)
      Mobile: 094181-28634.
                        drnikhilsurender@...
       


      --- On Sat, 8/21/10, surendernikhil gupta <drsurendernikhil@...> wrote:

      From: surendernikhil gupta <drsurendernikhil@...>
      Subject: [Quality_of_Medical_Education] Re: [hosp_admn_india] Right to emergency health care; Consumer court awards Rs. 3 lakh against a private practitioner
      To: "Hospital management" <hosp_admn_india@yahoogroups.com>
      Cc: "RTI_NationalForum" <nationalrtiforum@yahoogroups.com>, ""NIE alumni online community"" <nieaoc@...>, banik_kajal@..., bpmukho@..., dho@..., dinesh_mairembam@..., "Dr Joginder Thakur Mandi" <joginderthakur21@...>, "Dr KR Thankappan" <kavumpurathu@...>, "Dr Rama Bhunia" <rama.bhunia@...>, "Dr. A.K. Biswas Kolkota" <akbiswas_prl@...>, "Dr. Amitav Das" <das_amitav@...>, "Dr. B. Shailaja" <sailaja.bitragunta@...>, "Dr. Balraj Singh" <drbalraj@...>, "Dr. D. Halder" <drdhalder@...>, "Dr. D.B. Sagathia Junagadh" <drdb_s@...>, "Dr. Debaroy" <dr_debaroy@...>, "Dr. Debasis Roy" <dr_debaroy@...>, "Dr. Dinesh Thakur Kullu" <dineshbhuru@...>, "Dr. Dipankar Maji" <maji.dipankar@...>, "Dr. Harish Martolia" <harish_martolia@...>, "Dr. Mahesh Kinnour" <maheshjaswal@...>, "Dr. ManjuBala Panda" <drmanjupanda@...>, "Dr. Mohan Pradhan" <drmmpradhan@...>, "Dr. Omesh Bharti" <bhartiomesh@...>, "Dr. Prabhdeep kaur" <kprabhdeep@...>, "Dr. Prasun" <dr.prasun@...>, "Dr. Puran Sharma" <sharma.puran@...>, "Dr. Purnamala Devi" <purnamala@...>, "Dr. R. K. Tilotama Devi" <tilo_rk@...>, "Dr. Ravi Katti" <rkatti@...>, "Dr. S. lbungochouba Singh" <singhsagolsem@...>, "Dr. Satish Pundir" <drsatishpundir@...>, "Dr. Sawan Solanki" <sawansolanki_2007@...>, "Dr. Sawmapach" <sawmapach@...>, "Dr. Sharmishta Mitra" <ilovedipto@...>, "Dr. Shyamali Rudra" <sdjb77@...>, "Dr. Sobhan de" <sobhande@...>, "Dr. Somorjit Ningombam" <somorjitn@...>, "Dr. Sood Rajesh" <drrksood@...>, "Dr. Susanta Kumar Swain" <mansimple3@...>, "Dr. Sushil Chander" <sushilseemaprem@...>, "Dr. Sushil" <sushilseemaprem@...>, "Dr. Tapas Sen" <tapassen56@...>, "Dr. TK Tamta" <tktamta@...>, "Dr. Udit Narayan" <druditkumar@...>, "Dr. Vikram Katoch" <drvikramkatoch@...>, "Dr. Vinod Mehta" <vinodkholighat@...>, "Dr.Srvnndph" <drsrvnndph@...>, "Dr.Subhasish Saha" <subhasish19602003@...>, "Dr.Sugunan" <sugunanap@...>, "drpankajwelcomeyou@... kumar" <drpankajwelcomeyou@...>, drsubhranshu@..., "DrSurenderNikhil Gupta" <drsurenderngupta@...>, drsusmitaroypaul@..., drtapas1973@..., druditkumar@..., "gaurab roy" <gaurabroy18@...>, jethykunal@..., kishalay_datta_chandan@..., pkmdib@..., prabhdeepsuresh@..., "Prabhu RajKumar" <prahar82@...>, satishdmp@..., "Sobhan De" <desobhan@...>, tanatakum@..., vikramkatoch1@..., "Vinod Mehta" <vinodkholighat@...>, "allindiamdmsdoctorsassociation" <allindiamdmsdoctorsassociation@yahoogroups.com>, "Diseasesurveillance group" <diseasesurveillance@yahoogroups.com>, "IAPSM" <iapsm_youthmembers@yahoogroups.com>, "ifanet india" <ifanet-india@...>, "QualityMedical" <Quality_of_Medical_Education@yahoogroups.com>
      Date: Saturday, August 21, 2010, 1:42 PM

       

      QUESTION –What are your views about the following article published in The Tribune regarding the recent decision of the Delhi State Consumer Commission whereby a pediatrician was asked to pay Rs. 3 lakh to a person who died of stab wounds outside his clinic?

       

      http://www.tribuneindia.com/2010/20100819/edit.htm#6

       

       

      ANSWER—The article is written by a professor of sociology at Delhi University. Some of the statements in the article, along with my comments, are as follows:

       

      1—Through this decision, an Indian citizen’s right to claim emergency health care was vindicated.Everyone has a right to emergency health care. [MY COMMENT—A citizen has a fundamental right to health as held by the Supreme Court in its interpretation of Artcle 21 of the Constitution, which states that right to life is a fundamental right. However, let it be clear that a fundamental right operates against the state, not other citizens. There is an even a more fundamental right to food. Health comes later. No citizen can be punished by a court for not giving food to his neighbour who dies of hunger. The fundamental right to food operates against the state, not against others. It is the duty of the state to ensure that citizens don’t die of hunger. Similarly, it is the duty of the state to ensure that citizens don’t die for lack of medical care. In this case, the court was clearly misdirected in holding the doctor responsible in law for the death of the wounded.]

       

      2—This right flows from Article 25 of The Universal Declaration of Human Rights. [MY COMMENT—There is no need to go to the Universal Declaration of Human Rights. Right to health has been recognised as a fundamental right by the Indian Courts].

       

      3— The court reminded the doctor of the Hippocratic oath to render help to a dying man (human being). Doctors are bound by the Hippocratic Oath. [MY COMMENT—The court was talking out of imagination bordering on ignorance. No doctor in India is bound by the Hippocratic Oath. Doctors are bound by the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. These make no reference to the Hippocratic Oath. Even otherwise, an oath taken by a person voluntarily out of his own conscience cannot be treated as a legal binding or a legal agreement between that person and others. If I take an oath of celibacy, that does not mean a court can punish me for breaking my oath.]

       

      4-- The onus of providing emergency medical attention and referral is undeniably the doctor’s calling. [MY COMMENT—This may be a doctor’s calling at his option and most doctors would abide by it. It is not a legal binding and cannot be enforced against him by law.]

       

      MY FURTHER COMMENTS—

       

      a—If a doctor in private practice who is not in any way supported by the state / government provides emergency care to a patient to save his life, he needs to be gratefully thanked and compensated for this by the state through a suitable mechanism [such as the following: Either an insurance scheme for emergency treatment by doctors of persons who are not their patients but are brought to them in an emergency, the insurance premium being paid to the insurance company by the government and the cost of treatment being re-imbursed to the doctor by the insurance company; Or, a scheme such as the solatium fund scheme in respect of those injured or killed by untraceable motor vehicles.]

       

      b—The  principle of compensating a doctor for emergency care is clearly reflected by the Railway scheme of giving 10% concession in ticket to doctors so that, for this consideration, they may render any possible medical aid to passengers in emergencies.

       

      c—The forthcoming Clinical Establishments Act, 2010, strikes at the very root of the principles laid down above and seeks to impose a mandatory legal binding, at the threat of punishment, upon all establishments (single doctors’ private OPD clinics as well as hospitals) that they must treat a patient brought in an emergency, without there being any provision for necessary fees. This might as well prove to be the straw that breaks the camel’s back. The pity is that the camel in this case is highly educated and intelligent and prides itself to be the “cream of the cream” and is highly organised in the form of an elephantine organisation called the IMA, which might as well be spelled out as Indian Morose Association. This great profession / organisation refuses to see what is written on the wall.

       

      ----M C Gupta

      MD (Medicine), LL.M.

      Ex-Professor and Dean

      Practicing advocate

      mcgupta44@...

      19 August 2010 

       

       

       =======================================================


      On 19 August 2010 16:05, surendernikhil gupta <drsurendernikhil@...> wrote:
       
      Thanks for the comments. There were two points which were very useful legal punches offered by Dr. Gupta in relation to recent decision of the Delhi State Consumer Commission whereby a pediatrician was slapped a compensation of 3 lacs. When I read this decision under right to emergency medical care, I was also uncomfortable with the judgement.
       
      -The first law point was-a citizen has a fundamental right to health as held by the Supreme Court in its interpretation of Artcle 21 of the Constitution, which states that right to life is a fundamental right. However, let it be clear that a fundamental right operates against the state, not other citizens.
       
      Second one is-doctors are bound by the Hippocratic Oath.  No doctor in India is bound by the Hippocratic Oath. Doctors are bound by the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. These make no reference to the Hippocratic Oath.
       
      To me, the learned judges have errred in delivering the judgement on the basis of two points if pursued further.
       
      -But the medical fraternity may be at the receiving end with passage of the forthcoming Clinical Establishments Act, 2010, strikes at the very root of the principles laid down above and seeks to impose a mandatory legal binding, at the threat of punishment, upon all establishments (single doctors’ private OPD clinics as well as hospitals) that they must treat a patient brought in an emergency.
       
      -I am also tempted to copy the vital pieces of information of legal importance with other group members
       
      Thank you very much, Dr. Gupta once again.
       
      With warm personal regards,
       
      Nikhil
      Dr. Surender N. Gupta,
      MBBS; PGDHHM;PGDMCH;PGCHFWM;
      FAIMS;FIMS;MA (Phil);MAE (Epidemiology)
      Faculty, Regional Health and Family Welfare Training Centre,
      CHHEB, Kangra-Himachal Pradesh, India.
      Pin-176001.
      01892-265472 (Fax); 01892-263472 (Office)
      Mobile: 094181-28634.
                        drnikhilsurender@...
       


      --- On Thu, 8/19/10, Dr.M.C. Gupta <mcgupta44@...> wrote:

      From: Dr.M.C. Gupta <mcgupta44@...>
      Subject: Re: [hosp_admn_india] Right to emergency health care
      To: hosp_admn_india@yahoogroups.com
      Date: Thursday, August 19, 2010, 10:23 PM

       
      MY VIEWS ON THIS--


      Consumer court awards Rs. 3 lakh against a private practitioner

       

       Article 25 of The Universal Declaration of Human Rights begins: everyone has a right to a standard of living adequate for health and well-being of himself and his family including food, clothing and medical care.
       
       
       

      Right to emergency health care
      How does one decide when health care is a commercial service available on payment and when a moral service to be rendered without any pecuniary returns?

      Tulsi Patel

      WHEN a consumer court asked a Delhi doctor to pay a compensation of Rs 3 lakh to the family of Naib-Subedar K R Gulyani for not providing him emergency treatment at his clinic, an Indian citizen’s right to claim emergency health care was vindicated. The event took place two years ago in Delhi’s Janakpuri locality.
      A seriously injured and profusely bleeding soldier, Gulyani died in front of a clinic. The man was attacked by a gang of pickpockets while he was travelling in a bus. He managed to get off the bus and run homeward, but collapsed in front of a clinic.
      The doctor stepped out of his clinic, gazed at the bleeding man and returned to his clinic to attend to his patient. A couple who had come to the same doctor’s clinic got a stretcher from a nearby hospital, and pushed the bleeding Gulyani to the hospital where he was declared brought dead.
      Gulyani’s wife filed a case against the hospital and the doctor at the clinic in a consumer court and got an order for a compensation to be paid by the doctor at the clinic. The hospital was not implicated as Gulyani was not alive on arrival. The court reminded the doctor of the Hippocratic oath to render help to a dying man (human being).
      While Gulyani’s wife might actually receive the compensation amount from the doctor after two years of filing the case in a consumer court, the whole event reinforces that the onus of providing emergency medical attention and referral is undeniably the doctor’s calling. This ghastly vignette points to a few dimensions of the right to health care.
      The consumer forum’s contempt is clear for the doctor’s unpardonable indifference. The citizen’s right to emergency health care is also revealed.
      The third and the tricky dimension is the moral liability of a medical professional who is under the Hippocratic oath to provide emergency health care to a dying man, by implication, without any pecuniary returns. The difficulty occurs when the moral and the economic sides of the coin are analytically separated from each other.
      Health care provision, in popular perception is no longer viewed as a charity. It is a service like any other service that a consumer may buy, especially in the private health care sector. How is the doctor then obligated to provide health care without thought of economic returns? Does such a claim to health care become at once economic and moral because it involves human life? How does one decide when health care is a commercial service available on payment and when a moral service to be rendered without any pecuniary returns?
      This might depend on individual perception. In this case the perception of the doctor, the couple who took the injured Gulyani to a nearby hospital, Gulyani’s family and the consumer court differ in their perceptions about emergency health care provision. While the doctor’s response to the sight of injured Gulyani just outside his clinic’s turns health care provision as a commercial proposition, the consumer court has clearly taken a more moral than a commercial position, but the logic used to arrive at its moral stand is premised on health care being a commercial venture.
      And the couple that tried to help Gulyani reach a hospital, the humanitarian gesture borders on a mix of morality and civic responsibility. The affected family, of course, would wish emergency health care were a right. Reconciling the different perceptions and stakes is not easy. The frequency of such cases is on the rise, thanks to the media coverage in recent times.
      Let us see how the positive rights encapsulated in Article 25 of The Universal Declaration of Human Rights begins: everyone has a right to a standard of living adequate for health and well-being of himself and his family including food, clothing and medical care. While medical care needs vary a great deal among individuals in comparison with need for adequate food and clothing, provision of emergency medical care falls under a different category. Clearly, an Indian citizen can claim right to emergency medical care as the verdict in Gulyani’s case reveals. Why did the doctor then leave the injured Gulyani to die? What returns would the doctor get from handling a dying man?
      Private medical practitioners in Delhi work under varying conditions and many of the successful ones do not have time to spare for no returns. One researcher encountered several doctors who wished not to waste time talking to her. Instead, they would earn some money in that time if they saw patients. They had to earn a decent living and be judicious with their time.
      Also, the tedious legal procedures in medico-legal cases, can mean undue demands on doctor’s time and jeopardise their reputation and living. In such a politico-economic context, pragmatic State policies conducive for medical professionals’ honoring the Hippocartic oath are urgently needed, though their absence is no justification to let an injured man die at a clinic’s doorstep.
      The writer is Professor of Sociology, Delhi School of Economics, University of Delhi
       
       
      Nikhil
      Dr. Surender N. Gupta,
      MBBS; PGDHHM;PGDMCH;PGCHFWM;
      FAIMS;FIMS;MA (Phil);MAE (Epidemiology)
      Faculty, Regional Health and Family Welfare Training Centre,
      CHHEB, Kangra-Himachal Pradesh, India.
      Pin-176001.
      01892-265472 (Fax); 01892-263472 (Office)
      Mobile: 094181-28634.
                        drnikhilsurender@...
       




      --
      (Ex)Prof. M C Gupta
      MD (Medicine), MPH, LL.M.,
      Advocate & Medico-legal Consultant
      www.writing.com/authors/mcgupta44




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