Moneylife: Pune: Saturday, February 27, 2016.
Senior
journalist Chitra Subramaniam has taken Manipal Hospitals to Consumer Court for
medical negligence and using faulty implants for her ankle surgery. She can
also use the RTI Act to obtain information from hospitals through the
regulatory authority.
Noted
journalist, Chitra Subramaniam, has taken Manipal Hospitals to the Consumer
Court for gross medical negligence and wilfully providing false and dangerously
misleading information about medical implants. Her complaint in a Bangalore
court relates to her ankle surgery in January 2014 where implants to correct a
fracture did not meet medical standards.
The press
statement issued by Crestlaw Partners, a Bangalore-based law firm states that,
“Ms Subramaniam’s life was put at grave risk by the use of faulty implants,
details of which were never given to her despite repeated pleas and several
meetings with Swami Swaminathan, Executive Chairman of Manipal Health
Enterprises.”
“Manipal
Hospitals and Dr Murlidhar Rao the orthopaedic surgeon who operated on Ms
Subramaniam at Manipal Northside Hospital in Malleswaram repeatedly provided
wrong and misleading information, claiming it was given to them by the Indian
arm of Synthes, the Switzerland-based subsidiary of the global conglomerate
Johnson and Johnson.”
The consumer
complaint case has been filed against the Hospital’s Chairman-Medical Advisory
Board and Medical Director Dr H Sudarshan Ballal, and Dr Murlidhar Rao, who
operated on her ankle and an Indian subsidiary of Johnson & Johnson.
Under the
Right to Information (RTI) Act, a decision by the Central Information
Commission (CIC) makes it mandatory for all private hospitals to maintain daily
reports of medical records of patients and provide them the information. The
CIC had recommended the central and state government to “force” private
hospitals to give medical records of patients on a daily basis and be
transparent about it. It also quoted Section 2 of the RTI Act under which it is
mandatory for private hospitals to provide information as treatment comes under
“services”.
The CIC, in
its order of 4th July, 2015 posed these questions before itself –“The issues
before the Commission are: a) Whether
information sought by appellant in this case is ‘information’ as per section
2(f)? b) Whether this Commission has
power under RTI Act, to enforce the Right to information of the appellant
against a body, which is not held to be public authority, by directing the
respondent public authority to collect the information by exercising their regulatory
power? c) Whether the Commission has
power to consider the authorities of private hospitals as deemed PIOs and
proceed against them with penal actions for breach of RTI Act by obstructing
the supply of information?
CIC
concluded: ‘Information’ under section 2(f) 16.
This Commission has examined the issue of right of patient to have the
medical records in Nisha Priya Bhatia v Institute of Human Behaviour and Allied
Sciences GNCTD, and stated “the Patient has a right to his/her medical record
and Respondent Hospital Authorities have a duty to provide the same under Right
to Information Act, 2005, Consumer Protection Act, 1986, The Medical Council
Act as per world medical ethics.
“The
Commission recommended the Public Authority to develop a timeframe mechanism of
disclosure of medical records to patients or their relatives with safeguards
for privacy and confidentiality of the patient.”
In that
order, the Commission referred to various legislations.
“We need to
refer to provisions of Consumer Protection Act, 1986 to ascertain whether
appellant has the right to information about her own medical record.
Right to
information under RTI and Consumer Protection Act: 17.
Expression
“Consumer’’ is defined in the Consumer Protection Act, 1986:
S 2(1) (d)
"consumer" means any person who, ¬(i) [omitted] (ii) hires (or avails
of) any services for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and includes
any beneficiary of such services other than the person who hires (or avails of)
the service for consideration paid or promised, or partly paid and partly
promised, or under
any system of
deferred payment, when
such services are availed of with the approval of the first mentioned
person,
Similarly as
per Section 2(1)(o) : "service" means – “service of any description which is made
available to the potential users and includes the provision of facilities in
connection with banking, financing, insurance, transport, processing, supply of
electrical or other energy, board or lodging or both, (housing construction),
entertainment, amusement or the purveying of news or other information, but
does not include rendering of any service free of charge or under a contract of
personal service.”
The CIC
decision of 4 July, 2015 recommends
“forcing” private hospitals to provide daily medical records states “The
Commission recommends the Government of India, states and Union Territories
besides the respondent authority in this case, to take necessary steps to
enforce the right to information, i.e., forcing the private hospitals to give
medical records of the patients on day to day basis, because this daily
disclosure will prevent undesirable practices of altering records after damage
caused to patient.”
“Forcing the
private hospitals to provide daily-wise medical records will also act as a
check on some hospitals from resorting to extortionist, inhuman and ruthless
business of prescribing unnecessary diagnostic tests, unnecessary surgical
operations, caesarean deliveries,
unwarranted angioplasties,
inserting stents, without need, or of substandard nature, or putting low
quality stent while collecting price of high quality stent, and several such
malpractices amounting to medical terrorism, etc. They should not be allowed to
such malpractices with all impunity and get away without
any legal consequences as
if there is
an absolute immunity.
The Government, Medical Council of India and the health regulatory has to
see that licence to practice medicine will not become licence to kill and
extort and come to the rescue of helpless patients.”
This order
was a sequel to Delhi based RTI applicant, Prabat Kumar, who appealed to the
CIC. As per the details quoted in the CIC order, his father was admitted into
the hospital with the complaint of constipation, but he was kept in the ICU. He
spent nearly Rs18 lakh on his father’s treatment in the Fortis Hospital, and in
spite of that his father expired during the treatment.
The CIC Order
states: “The appellant claimed that, being son of patient, who is party to the
contract and consumer besides being victim of treatment, he has right to know
the details of diagnosis, treatment and the prescriptions of the doctors who have
attended him. When (the) Central Public Information Officer (CPIO) wrote to the
Hospital seeking the details of treatment given to his father, the Hospital
denied. Hence, appellant was compelled to use RTI for information from private
hospital through the respondent public authority, the regulatory authority of
the hospitals. Appellant complained that the respondent authority has forwarded
reply received from the private hospital without taking any regulatory steps to
secure the information as per the law.
The CIC order
noted: “It is the legitimate right of the son of the deceased patient to know
such details of treatment, which the hospital also contractually bound to
supply, having received a consideration
(payment) from the deceased’s family. It could not only be breach of contract
by the hospital, but also breach of the provisions of Medical Council Act,
1971. The respondent authority being the regulatory authority, is expected to
enforce the law and come to the rescue of the deceased’s family, when the
rights are being violated by a private or public hospital. (Read full order here:
http://jksic.nic.in/E%20-library/Prabat%20KUmar%20-%20Fortis.pdf )
As for
Chitra, the press statement stated, “She lives with multiple myeloma, a
life-threatening cancer of the bone marrow. Regular MRIs are part of routine
check-ups. The faulty implants made MRIs impossible and the implants had to be
removed by a second surgery. Ms Subramaniam has publicly spoken out about her
diagnosis and advocates internationally for access to affordable treatment
including cancer treatment.”
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