Clinical Establishments Registration & Regulation Act and Treatment of Emergency Cases
Sunday, June 30, 2013
Dr S K Joshi
The application of Clinical Establishments Registration and Regulation Act, 2010 (CEA-2010) in many states, has caused a lot of confusion as well as resentment among doctors for various reasons. In addition to the resistance to compulsory registration, a point raised by many doctors, including some members of the ‘Quality of Medical Education’ forum, is about the obligation to treat emergency cases.
Dr S K Joshi
Their concern is that
“Section 12(2) of CEA-2010 is a mandatory pre-condition for registration under this act. Now, after having given a written undertaking to treat/stabilise cases of emergency medical condition as defined in the Act, could this become a LEGAL compulsion for the doctor / NH (nursing home) concerned to provide emergency care to all who knock at the door (within the facilities and staff available, of course)?”
I would like to clarify the misgivings on this issue in the succeeding paragraphs.
Duty of emergency treatment and stabilization in case of a life-threatening emergency is nothing new, as elaborated below.
1. Section 2.1.1 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 states that “Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the high character of his mission and the responsibility he discharges in the course of his professional duties.”
“The patient must not be neglected (para 2.4). A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency.
2. The Supreme Court of India, in its Judgment in Parmanand Katara Vs Union of India (1989), has clarified the duty and liability of a medical professional to attend to an emergency case as follows:
“Doctor is looked upon by common man as the only hope when a person is hanging between life and death. But they avoid their duty to help a person facing death when they know that it is a medico-legal case.”
“It is clear that there is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately. There is also no doubt that the effort to save the person should be the top priority not only of the medical profession but also of the police or any citizen who happens to be connected with the matter or who happens to notice such an incident or a situation.”
“At the same time it is hoped that the police, the members of the legal profession, law courts and everyone concerned will keep in mind that a man in the medical profession should not be unnecessarily harassed for purposes of interrogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible. It is also hoped that the law courts will not summon a medical professional to give evidence unless the evidence is necessary and even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily. It is expected of the members of the legal profession to honour the persons in the medical profession and see that they are not called to give the evidence so long as it is not necessary. It is also expected that where the facts are so clear unnecessary harassment of the members of the medical profession either by way of request for adjournments or by cross-examination should be avoided.”
“We should also like to mention that whenever on such occasions a man of the medical profession is approached and if he finds that whatever assistance he could give is not sufficient really to save the life of the person but some better assistance is necessary, it is also the duty of the man in the medical profession so approached to render all the help which he could and also see that the person reaches the proper expert as early as possible.”
In view of the above it is mandatory for every medical professional and for every hospital / nursing home to provide all possible emergency medical assistance to the emergency cases approaching them for assistance, regardless of the paying capacity of the patient. In case the doctor/hospital approached, does not have the requisite facilities necessitated by the patient, they should see that all possible help is provided to the patient to reach the right expert/hospital at the earliest possible. Refusing emergency treatment and sending the patient away for any reason (other than the lack of competence) would make the hospital liable to legal action.
“Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. The obligation being total, absolute and paramount.”
“Failure to attend to such emergency cases amounts to medical negligence on the part of the doctor.”
“We are of the view that every doctor wherever he be within the territory of India, should forthwith be aware of this position and, therefore, we direct that this decision of ours shall be published in all journals reporting decisions of this court and adequate publicity highlighting these aspects should be given by the national media as also through Doordarshan and the All India Radio. Copies of the Judgment are to be forwarded to every High Court, every State Govt and the Indian Medical Council with a direction for wide publicity.”
3. The direction by District Consumer Disputes Redressal Forum and the State Consumer Disputes Redressal Commission, in the case of death of Naib Subedar K L Gulyani (discussed in brief below) went even a step further.
• Naib Subedar K L Gulyani, while traveling in a bus in Janakpuri, Delhi (2006), was attacked by a pickpocket. He sustained knife wounds on his right thigh. While bleeding badly, he managed to get down the bus but collapsed immediately on the roadside at a place, which was just in front of the clinic of a doctor named Dr A K Manocha.
• As per the evidence on record, the doctor came out of his clinic, saw the injured man bleeding profusely right outside his clinic, but instead of rendering any emergency life-saving treatment he just turned back and closed his clinic.
A couple who had come to Dr Manocha for consultation took the injured man to Orchid Hospital where he was declared ‘brought dead’. The injured army man had bled to death for want of medical help.
• The case went to District Consumer Disputes Redressal Forum.
Allegation of callousness on the part of Dr Manocha was levelled by Savita Gulyani, the widow of deceased army man, and was supported by the couple who had taken the injured man to Orchid Hospital.
The Forum did not accept Dr Manocha’s contention that he was a private doctor and had no obligation to treat a person lying outside his clinic, and ordered Dr Manocha to pay a compensation of Rs 3 lakh to the widow of Naib Subedar Gulyani.
• Dr Manocha appealed against the order in the state commission.
• Delhi State Consumer Disputes Redressal Commission observed that “every doctor is bound by oath to render help to any person needing help”.
In their landmark order the commission termed Dr Manocha’s conduct as “cruel” and said that “he failed in his duty as a doctor”. The bench headed by Justice Barkat Ali Zaidi said:
“Instead of moving the injured to hospital, he went back and closed the doors of his clinic. It is not possible to say that a doctor would not have realized the gravity of the situation and not foreseen that continuous bleeding will result in death. The callous indifference of the doctor needs to be denounced in no uncertain terms.”
Justice Zaidi turned down Dr Manocha’s plea that the amount of compensation ordered was excessive saying that: “no amount of compensation is adequate where a life is lost.”
4. Legal position on the subject is similar in many countries. In USA, The Emergency Medical Treatment and Active Labour Act (EMTALA) made it compulsory for the doctors/hospitals to provide all necessary treatment, assistance, regardless of the paying capacity of the patient, way back in 1986. It requires hospitals and ambulance services to provide care to anyone needing emergency treatment regardless of citizenship, legal status or ability to pay.
5. In India, a similar law — Compulsory Medical Treatment in Emergency Condition and to Women in Labour by Private Hospitals and Medical Practitioners Bill, 2008 — is in the process of enactment.
So, what the Clinical Establishments Act expects from the doctors is neither new nor unfair or unjust. Alleviation of pain and suffering and saving human lives is the primary purpose and a patient is the “raison d’etre” of medical profession. Yes, the issue of non-payments (for treatment of many emergency cases) is a matter of serious concern, which has not been addressed by the IMC Regulations, the Govt or the Supreme Court Judgement quoted above.
Even then, it is felt that it would not be prudent (nor justified) to make any noise against the rule about obligatory life-saving medical treatment. It is too sensitive an issue. Any opposition to this provision will not be taken kindly by the law or the society. Critically sick human beings cannot be left to die without medical treatment. This would be against the very ethos of medical profession, the compassion and human kindness. Failure to comply with the regulation may not only invite legal action but may also cause loss of respect and sympathy in the eyes of the public. Our grievance is about the non-payment of bills. The thrust of medical profession, therefore, should be to fight for a mechanism of ensuring problem-free payment of the bills. That would be quite reasonable.
The suggestion by Dr Neeraj Nagpal (Hope Clinics ) for providing cashless treatment to all accident cases by the insurance companies appears to be quite reasonable and workable. Since all vehicles are insured by the insurance companies and vehicle accidents are to be covered by them in any case (whether the vehicle involved is A or B or C) the liability should be borne by them. Non-accident emergency cases, too, to a large extent (say about 25-30%) are covered by insurance policies.
This can be a workable solution. Central and State Govt can pool the money and create a fund for cashless treatment of emergency cases. The hospital bills for such treatment can be paid out of this fund within a month of submission of bills and the amount recovered by the fund managers from the insurance companies in equal proportion. In the case of non-accident cases the expenditure may be shared by the Govt (Fund) and the insurance companies in a 70:30 proportion. Any other modality can be adopted as long as it addresses the doctors’ grievance in a satisfactory manner.