“If there is one bad apple in a basket, you have to remove that bad apple and keep the good ones. It’s like cancer… you have to deal with it. Bad doctors have to be told that they have done something wrong; or if hospitals are not doing the right thing, you must point it out to them. That is what we are doing. Now, most of them have understood us and the negativity of the past is not there any more.”

Mrs. Rao, who was speaking at the last meeting on “Consumer Protection”, was introduced by Pranay Vakil who said that she hailed from a family of freedom fighters and preferred doing voluntary social work for the promotion of consumer rights, consumer protection and consumer education.

‘Supreme Court has placed the onus on hospitals to provide the names of medical personnel; they can’t refuse to part with patients’ records’

She had written a book, Consumer is King!! Know your Rights & Remedies, covering her experience of 17 years at various consumer fora which had been published in 12 regional languages and was even used as a reference book by judges (she presented a copy to President Nandan Damani).

Apart from this, she was interested in public policy analysis and was actively involved in the provision of educational facilities for the poor and needy and in the promotion of art. She had set up a Kuchipudi Kala Kendra in Bombay which trained 200 young persons in classical dance every year. She had also set up a hospital in Aryavattam, Andhra Pradesh, for rural healthcare and was in the midst of setting up a 225-bed hospital in Bombay with 50 charity beds.

After doing her MBA in Marketing from Osmania University in Hyderabad, she went to the University of Illinois-Urbana Champaign, USA, to do her M.S. in Advertising. She was inspired by the legendary Ralph Nader and imbibed from him the philosophy that “big business should treat customers fairly and that citizens should be protected by the government”.

Mrs. Rao was one of the few persons in the country who had worked at all three levels of the consumer grievances redressal mechanism. At first she was posted as a member-judge of the District Consumer Forum, Bombay, and then as a member of the Maharashtra State Commission. After eight years she was elevated to the National Commission in Delhi and served two terms of five years each.

She said in the course of her talk that it was surprising that most people were just not interested in finding out what was going on in the hospitals that they went to for cure and relief.

“It’s our health, our body; we are paying money for services to be rendered by the medical profession or the hospital. Why are we shy of asking relevant questions? We must ask because it is our future, our life, our family that is involved. We must know who is the anaesthetist, does he know our previous history, has he asked enough questions, have we given our history properly?

“But if something happens, if there is some negligence, we suddenly wake up from our slumber and say that something is wrong, that this was a mistake and that was a mistake. But where were you earlier? Why didn’t you ask the questions earlier? When you go to a doctor, you should ask relevant questions – such as what are the inherent risks in the surgery? What are the medicines for? Whatever your doubts, raise those questions.”

Despite the advent of the internet and other means of information, people had blind faith in doctors and believed that they were practising a noble profession. So they asked no questions. If things went wrong and the case reached a consumer court, then patients knew almost nothing about what had happened in the hospital and the names of those involved, such as the nurses, the anaesthetist and so on.

Fortunately, said Mrs. Rao, the Supreme Court had given a verdict in the Savita Garg vs. National Heart Institute case and placed the onus on the hospital to provide the names of all personnel because there was no way that the patient would know their names. Patients now had the right to get from the hospital all information about those who had treated them, details of the nurses, the other doctors and so on.

Earlier, hospitals used to refuse to provide patients with their medical records, saying (for no rhyme or reason) that these were “confidential”. But this was not correct. It was the patients’ right to have their records for it was a crucial bit of evidence in their hands.

“You must know what happened on the table, what medicines were given and what kind of allergies or reactions you had gone through. It is very important for you to know all this so that if ever you need to go for another surgery or treatment, or for a second opinion, there will be something that will be helpful to you.

“But repeated judgments from our bench to the hospitals were not heeded; we called the Medical Council of India (MCI) and asked them to file an affidavit to explain why they were not pursuing this particular rule; but they were not bothered. The MCI is more or less defunct and is not doing anything against doctors. So you have to protect yourself and there is no better protection other than the consumer court.

“Now the MCI has given in writing that within 48 hours of receiving a request, hospitals have to give these documents to you. You must always keep these medical documents with you, because these will stand you in good stead. Further, you must also have the discharge summary with all details about the treatment given, the post-operative care required and the inherent risks in the post-operative treatment.”

Mrs. Rao then narrated a few cases to illustrate the points that she was making.

After he underwent eye surgery, a retired IRS officer started experiencing pain in his eyes. When he called the doctor, he was not given an appointment. On complaining that the pain was unbearable, he was told on the ’phone to double the dosage of the prescribed medicine.

But the pain persisted. This time, he got an appointment for the following Monday. But by then one of his eyes was badly damaged. It so

happened that the doctor had not told the patient that since he was a diabetic, it would be better if he checked his diabetes. The doctor could have conveyed this on the ’phone, but he did not do so.

To cut a long story short, the retired man went through a series of surgeries and ultimately lost an eye.

When the case came up before her bench, she said it was a case of negligence. The others on the bench did not favour this approach, but she emphasised that a doctor could not say that he had no time and avoid giving post-operative care. It was incumbent upon him to give a timely appointment and to provide proper post-operative care.

“After taking money he cannot just say that he has no time to give even that little bit of advice. He can’t just shut off the patient and say that he has done his work and it’s over. I held that the doctor is negligent if he does not bother about the patient’s problems in the post-operative period.

“Most doctors hated me for this ruling… But I believe that we should not receive such treatment from our doctors. It is a noble profession and they must honour the profession with nobility and we must also respect them… but they must, even in their busy schedule, ensure that if they have taken money they must go that extra mile to see that whatever (procedure) they have done is progressing in a proper manner. It’s their duty.”

Mrs. Rao said in another case a young engineering student met with an accident while riding a scooter in Calcutta early one morning. Passersby took him to a nearby hospital. Before going into a coma, the boy told the doctors that he was insured. “Please treat me,” he said.

But the doctors gave some first aid and then demanded that a sum of Rs. 15,000 be deposited before starting further treatment. No one had the money that early in the morning. Somehow the people collected Rs. 2,000 and also offered the boy’s watch and his scooter. They said they would contact his parents who would come and pay.

However, the doctors were adamant on the deposit of Rs. 15,000. The people who had brought him to hospital had to take the boy away and proceeded towards a government hospital. The boy died on the way.

When the case came before her bench, it said in its judgment that fees could wait, life and death would not wait.

“Doctors cannot clamour for their money. They could have easily taken care of the boy because there was a promise to pay. It was not just service versus payment. There was an insurance policy and Rs 2,000 was already given as part payment. Thus it became a payment by the consumer.

“We do not write judgments just out of sympathy. Everything has to be legal and under the Consumer Protection Act and its sections. The legislature has provided the Act for the benefit of the consumer and we cannot go beyond it.

“What is the point in asking for the entire money in an emergency case? We gave a landmark judgment which is binding on all hospitals and they are being careful now.”

Mrs. Rao then turned to what she called the “huge racket” in blood transfusions.

Urging members to ensure that the blood given to them or their relatives in hospitals was not infected, she said it was essential to see that the correct blood group was given.

Most people felt that since they were going to a fancy place which was like a five-star hospital, with the best doctors and the best facilities, there was nothing to worry about. However, “some of the worst things are happening there… Patients, Beware!”, she said.

Rajyalakshmi Rao says most medical negligence cases are filed because people feel hurt

A 16-year-old girl was admitted to a super-specialty hospital with malaria and needed blood transfusion. Her mother was prepared to give blood, but the authorities said it would take time so they would give blood from their own stock.

The blood they gave her was infected and the girl contracted hepatitis C; this meant that she would have to take medicines for the rest of her life and would not lead a normal life.

Her sister, who was studying medicine, took up the case and argued it herself. The hospital had kept such excellent records that it was impossible to pinpoint any kind of negligence. The members on the Commission conducted a thorough search of the records.

Finally, it was revealed that the blood that was given to the girl had already passed its expiry date. The hospital could not show proper records and did not even know who had given the blood, how it had been sourced and so on.

In its ruling, the Commission said it was surprising that the hospital could not even keep proper records.

“It is an almost impossible task to find (such evidence). Unless it is a case of grave negligence, which is very clear, usually we can’t find fault with them. Thus, 90% of the cases fail. But in 10% of the cases we somehow find out and give judgments in favour of the consumer.

“But you must remember that what helps you most is to know your consumer rights. Once you know your rights, you can always ask for your records, for your notes, and ask for everything on paper. You must make sure that the written consent is proper, that you have understood all the risks, then you make them sign the paper, you sign it yourself and only then go in for surgery.”

Mrs. Rao recalled the case of a boy who went for a tonsils operation in Kerala and returned brain-dead. The surgeon said he had done the surgery properly and had removed the tonsils. The hospital said it had given oxygen and everything else that was required correctly. They maintained that the child had probably died of something else.

When she asked them to show the records, the hospital could not produce any. When she asked about the anaesthetist, it could not produce the anaesthetist. She held that these facts went against the hospital and termed it suppression of evidence.

Mrs. Rao said most people believed their doctors and had implicit faith in them; if they became emotional (sometimes without justification) when a near one died, then part of the blame had to be laid at the door of the doctors because they often vanished after a person died. The relatives, who had been confident all along that the doctor was taking excellent care, were hurt when the same doctor stopped speaking to them.

The doctors owed them an explanation, they could at least reveal whether anything had gone wrong. People accepted the fact that death was inevitable, but they wanted to know what exactly had happened. But most doctors never bothered to answer questions.

“People often file wrong complaints not because there is negligence, but because they feel hurt; they have an emotional bonding with the doctor and think he is god and will take care of everything. That emotional bonding hurts, that’s why they come, (alleging) medical negligence. They don’t come for money, that’s very rare.

“In the case of that girl (who was given the wrong blood), I gave Rs. 18 lakhs plus interest, about Rs. 25 lakhs. When the hospital went to the Supreme Court, it did not even admit the case. The hospital realised that it was going to lose, so it withdrew and paid the money.

“If there is merit in the case, you will win. But you should not go to consumer courts for everything. You should be careful, you should be aware of your rights as a consumer. If you don’t know them, then what’s the point in such a benevolent legislation placed at your doorstep?”

Mrs. Rao said there were 600 district fora in the country for claims up to Rs. 20 lakhs; for amounts above and up to Rs. 1 crore, one could go to the State forum in the capital; and for claims over Rs. 1 crore one had to go to the National Commission. Above all, consumers had the right of appeal and could go for revision petitions up to the Supreme Court.

Thankfully, doctors had now realised that it was better to change their systems and style of working. As more and more people became aware of their rights, they would also realise that if they did not improve, then patients would go away to their competitors.

Finally, Mrs. Rao described a case wherein a woman went for a simple hysterectomy to the best doctor in Delhi and was operated upon in a top hospital. But the doctor, instead of doing an abdominal hysterectomy, chose to do a vaginal hysterectomy and she also removed the ovaries and other appendages.

The written consent was not clear; there was no mention that it would not be an abdominal procedure and the patient knew nothing about the surgery attempted.

Somewhere along the way, there was a mistake and a nerve got cut. It

avulsed and there was profuse bleeding. The doctor became nervous and called a surgeon. They opened up the patient and did abdominal surgery to try and close the nerve. But they failed.

They took so much time, that in the mean while the kidneys started failing and one of them had to removed.

“I cannot tell you the pressure that came on the Commission in that (case), because she was a very eminent doctor and she had done thousands of successful cases. Top counsels stood there, arguing for her and for her hospital. Their arguments were so good they were difficult to oppose. On the other side was this woman and her ordinary lawyer.

“Such risks are always there in surgery. Some of the members on the bench said such things can happen, the poor thing (doctor), her life would be ruined and so on. But I said, nothing will happen, the insurance company will pay… we must find out what happened.

“How can we let her off? She is a specialist. I go to a specialist for an ordinary hysterectomy… it’s not an extraordinary thing, it’s something ordinary doctors do in villages. And when I go to a specialist, the written consent should be correct; I should be told that this is not abdominal but vaginal surgery and that they are taking a chance, because it is specialised surgery… And I come out with one kidney less! For what? If that is not negligence, then what is negligence?”

Finally, the Commission ruled in favour of the patient, calling it a case of negligence, Mrs. Rao concluded.

Dr. Percy Chibber agreed with the speaker that it was best that patients were aware of their rights and that it was the duty of doctors to answer every question.

But he said that in medicine there was no adversarial situation as in other cases. For example, a client could impute that his lawyer had gone over to the other side and started working against him. But it was never in the interest of a doctor to do anything against the interests of the patient.

Secondly, medicine was not a “cutand-dry profession”. There was always an inherent risk. The experienced gynaecologist who had obviously cut a ureter could not be called negligent because it could happen even to the best of doctors.

“That is why there is a differentiation between negligence and misadventure. If you cross the road a thousand

times, one day you will be knocked down by a car. That doesn’t mean that the car was responsible, unless it was speeding and unless there were certain situations.

“But negligence is cut and dry, which means that if I did not take the precautions that an ordinary, talented man pursuing his profession would have taken, then I am guilty. That is negligence, everything else is misadventure.

“Another point. You said something about money. You kept saying, ‘paid his fees’… What if fees are not collected, what if I do a job in a government hospital and something goes wrong? Is that patient not entitled to any kind of redressal? I don’t think that money changing hands has anything to do with redressal.”

Mrs. Rao said that every one, whether doctors, manufacturers or service providers, who was paid money came under the Consumer Protection Act. Free service did not fall in this category. The courts had held that wherever money was paid, the case would go to the consumer court.

In government hospitals like AIIMS, where some beds were free and some were charged for, the latter came under the Consumer Protection Act.

Dr. Chibber then turned to the question of standard of care. He said that in a hospital like Breach Candy certain facilities and equipment were available. But similar facilities were not available at a hospital in a place such as Ambejogai. “Are you saying that the doctor in Ambejogai should not operate?”

Mrs. Rao said it had been made very clear that only a minimum standard of care was expected. “Nobody expects an extraordinary standard of care. In the case I mentioned (about the Delhi gynaecologist), she had not taken written consent. The patient must know what he or she is getting into. It should not be a surprise.”

Prof. Rohini Chowgule agreed that doctors, hospitals and patients had to be more accountable, but if hospitals were afraid and kept ordering tests (as they had done in her relative’s case), then the cost of health care would shoot up as in the USA. Was it possible to have some balance between overcautious doctors and happy-tosue patients so that India did not follow the example of the USA?

Mrs. Rao repeated that she was not asking for extraordinary medical care. All she was suggesting was that doctors kept a correct, proper record of the operation.

“Let me tell you that there are many cases of top hospitals tampering with medical records. We have seen it again and again. I have seen it in my 18 years of handling cases. I know how medical records are tampered. All I am saying (to you) is, please ask for your medical records as soon as something has been done. Ask for it, take it and keep it.”

Burjor Poonawala almost brought the house down when he said: “Mrs. Rao, I don’t know if you are aware that half the members in our Club are doctors.”

He asked his question when the laughter finally died down.

“When some one falls ill, he goes to a GP. The GP does a few tests and says, I don’t know what is wrong with you, go and see a consultant. The consultant puts you through a series of new tests and then says, I don’t know, you'll have to go to a specialist. You go to a specialist and he may say that you will have to go for surgery. As a result, you are tired by the time you get to that point. Is there any consumer protection in such cases?”

Mrs. Rao said patients had to be smart, not waste their time and money, and go to the right person for treatment.

“I must also tell you that specialists are a big problem. If you go to a top hospital for orthopaedic surgery, different doctors will come and see you and they will say different things, such as this is not good, this is contraindicative to that, and so on. Different doctors give different views but there is no one person in the hospital to coordinate all this.

“They are waiting for the main surgeon to come and give his okay to start. But if he comes six hours later and (if, in the mean while) the patient dies? (It happened in one of the hospitals in the city).

“I don’t write judgments against doctors and hospitals for money but to change the system. It is the duty of the hospital to have somebody to connect all the doctors, it is not the duty of the patient’s family to do so. You have not got hold of the main doctor for six long hours, just to say start this or start that! And the patient dies. He would have died even otherwise, but you cannot accelerate his death,” Mrs. Rao added.

The vote of thanks was proposed by Nanik Rupani.