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Panacea to Medical Malpractice in the era of MVT – Invest India

Invest India Outlook
Associate
What is MVT?
Discarding the conventional notion that medical treatment is a service received close to home, several foreigners today travel across borders to avail medical procedures ranging from hip-replacement to heart-bypass surgery. Earning the moniker ‘medical tourism’, this trend has shown exponential growth in recent years by appealing to a universal sentiment of every patient’s anatomy: his wallet. Even after factoring in travel expenses, accommodation, and sick days off work, savings can be as high as 88% thanks to Medical Value Travel (MVT). 
India as an MVT destination
MVT has become a common form of vacationing wherein leisure, fun and relaxation blends together with wellness and healthcare. Thread together by the credo ‘Unity in Diversity’ since independence, India has much to offer in terms of geographical and cultural diversity. In the elegant words of the polymath Rabindranath Tagore, India is bestowed with ‘Vindhya Himaachal Yamuna Ganga Uchchhal Jaladhi Taranga’. Dotted with tranquil beaches, adorned by snowclad ranges, India is a home to 30 World Heritage Sites and 25 biogeographic zones. Thanks to the intelligent energy which birthed us, people are as diverse as geography. This diversity in people entails distinctive treatment preferences, which can vary from Allopathy, Ayurveda to Homeopathy, Vipassana, etc. One of the world’s oldest medical systems, Ayurveda which originated in India, uses natural ingredients to make medicine. With its sui generis features gradually coming to the fore, demand for AYUSH has skyrocketed in India. 
A multibillion-dollar provider industry in India, MVT attracts millions of foreigners every year to avail high-quality affordable healthcare while revelling in the ancient wisdom of the Vedas and Upanishads. Equipped with highly-trained and experienced healthcare workforce well-versed in English, India boasts 1.3 million+ allopathic, 0.8 million+ AYUSH doctors and over 3.4 million nurses and Auxiliary Nurse Midwives. Endowed with 40 Joint Commission International (JCI) and 1400+ National Accreditation Board Hospitals (NABH), India is emerging as an attractive destination for foreigners who want access to cost-effective treatment and avoid long waiting lists in their home country. 5 star hotels and guest houses in close proximity to healthcare facilities, availability of language translators are some of the many features that allow for a seamless healthcare experience in India. Given the acute shortage of healthcare workforce following COVID-19, Indian healthcare professionals hold great potential to help save lives across borders. In fact, India currently provides support to several developing countries lacking in secondary and tertiary care facilities to facilitate capacity building of hospitals so that they can treat patients in their own country and send referrals of difficult cases and quaternary care patients to India.
Launch of New GoI Initiative
With the clock ticking away fast, the highly interdisciplinary team of Invest India and a wide array of consultants join forces with the Ministry of Health and Family Welfare for the launch of a one-stop MVT portal to facilitate end-to-end patient journey assistance. The MVT portal launch will be the harbinger of the Heal in India and Heal by India initiatives which have been designed with the intent to boost patient mobility and health workforce mobility respectively. The moment is most apropos as the burgeoning Indian MVT market already enjoys a worldwide reach. Placing special emphasis on modern medical treatment, AYUSH, and spiritual wellbeing would provide the Indian medical tourism market the impetus it needs to grow at a much faster rate than the projected rate of and eventually emerge as a global leader in Medical and Wellness Tourism in the next five years.
The Issue
On the heels of the launch of this one of a kind initiative, unavoidable questions arise on the legal recourse available to tourists availing services at NABH and JCI accredited hospitals, particularly in the event of medical malpractice. While NABH and JCI introduce the concept of protocols, observance of the said protocols by individual doctors poses a major challenge. Sans a strong hospital administration, violation of such protocols has high likelihood. 
The ways of handling medical malpractice varies from country to country. Damages are capped at different values, cases may be determined by a judge instead of a jury; and some countries don’t take cases to court at all, but instead they go to the medical review board. If patients receive medical care abroad with under-satisfactory outcomes they have the choice to turn to the host country legal system. However, since patients travel from far-flung countries, this presents several challenges. If patients choose to take the matter to courts of their home countries, then the lawsuit cannot commence until the defendant is served with a summons and complaint. Moreover there are major roadblocks a European plaintiff faces in obtaining personal jurisdiction over a foreign doctor in order to try a medical malpractice suit in the EU. Furthermore, even when a judgment is obtained against a foreign doctor, several obstacles undermine a plaintiff’s ability to collect on a judgment if a foreign doctor’s assets are located overseas. 
The growth in MVT so far has primarily been driven by reduced costs, with ethical practice and legal issues arising from medical negligence and malpractice often taking the backseat. However, with the medical tourism market becoming increasingly competitive around the world, the future growth of medical tourism in India rests on the effectiveness of the regulatory framework. 
Current Recourse in India
(i) Article 21 & Medical Negligence in India
Article 21 the most precious fundamental right envisaged in the Constitution of India guarantees a patient’s right against medical negligence. The “ Right to Life”, the most sacrosanct amongst all the rights conferred in Part -111 of the Constitution in its deep and pervasive ambit includes everything that touches a decent and standard livelihood, accessible medical treatment being a vital part of it. 
A plethora of judgements of the Supreme Court of India while interpreting Article 21 have eloquently laid down the law protecting a patient’s right to get safe medical treatment. The Hon’ble Supreme Court in Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37 held that Article 21 of the Constitution of India imposes an obligation on the State to safeguard the right to life of every person, and the failure of the Government to provide timely medical treatment to a person in need of such treatment is a violation of his right to life guaranteed under Article 21 of the Constitution of India. In Parmanand Katara v. Union of India, (1989) 4 SCC 286, the Hon’ble Supreme Court reiterated that Article 21 of the Constitution of India casts an obligation on the State to preserve life. Every doctor at a government hospital or private hospital, has the professional obligation to extend their services with due expertise for protecting life. Subsequently, it was held by the Hon’ble Supreme Court in Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42 that right to health, medical aid to protect the health and vigour of a worker in service or post-retirement is a fundamental right under Article 21 read with Articles 39(e), 41, 43, 48-A and all other related articles and human rights to make the life of the workman meaningful and purposeful with dignity of person. 
In cases of medical negligence, however, the long-standing Bolam test (Bolam Vs Friern Hospital Management Committee (1957) 2 All ER 118) is still in vogue in India, which posits that a Doctor is not liable for medical negligence if the Doctor acted in a particular manner which is accepted and regarded by a body of skilled medical practitioners as correct. Even then, Courts in the United Kingdom have slowly moved away from the Bolam test and merely consider it as a ‘rule of practice or of evidence’, and not a rule of law. The Hon’ble Supreme Court in Maharaja Agrasen Hospital v. Rishabh Sharma, (2020) 6 SCC 501, reaffirmed the 2010 judgement in V. Kishan Rao v. Nikhil Speciality Hospital (2010) 5 SCC 513 and held that the Bolam test required reconsideration in light of Article 21 of the Constitution of India since it guarantees medical treatment and medical care. Even in Arun Kumar Manglik v. Chirayu Health & Medicare (P) Ltd., (2019) 7 SCC 401, the Hon’ble Supreme Court held that the Courts must exercise caution while applying the Bolam test, and that the principle must evolve in consonance with its subsequent interpretation by Courts in UK and India. 
(ii) Civil Liability under Consumer Protection Action (CPA) Act, 2019
The decision of the Supreme Court of India in Indian Medical Association v. V. P. Shantha (AIR 1996 SC 550) brought doctors and hospitals under the purview of the CPA. The said view has been reaffirmed in a subsequent apex court judgement rendered in Laxman Thamappa Kotgiri v. GM, Central Railways and Others (2007); SCC 596. This judgement paved the way for doctors and hospitals to be sued under the CPA for any ‘deficiency in service’. “Deficiency” is usually construed to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance of any service. The aggrieved person can approach the Consumer Disputes Redressal fora established under the CPA to prove any malpractice by a doctor/hospital and claim compensation. 
Private hospitals have been held accountable by applying the principle of ‘Vicarious Liability’ in the Law of Torts for malpractice or ‘deficiency in service’ on the part of the doctors or nurses employed in said hospitals. Indian courts have ruled that a hospital cannot escape liability merely by arguing that it only provides infrastructural facilities and services of nursing and support staff to the consultant doctor and that the hospital cannot perform or recommend an operation on its own [Rekha Gupta v. Bombay Hospital Trust and Another (2003) 2 CPJ 160)]. 
Under Indian law, upon award of final compensation (i.e., all appeal remedies have been exhausted), if the defendant has not voluntarily rendered compensation, the aggrieved party is entitled to commence proceedings to execute the award. In such proceedings, the court is empowered to seize and sell (by public auction) any property belonging to the defendant to ensure that the aggrieved person is paid due compensation. Courts are also empowered to imprison the defendant for any non-payment of the award. 
(iii). Criminal Liability
A doctor can also be liable under penal laws for criminal negligence. This happens if such a doctor is shown to have been rash and negligent, resulting in the death of the patient [Section 304A of the Indian Penal Code]. A person convicted under Section 304A may be subject imprisonment and/or fine.
Recourse available in other countries
In Argentina, another emerging destination for MVT, genuine malpractice cases are dealt with quite swiftly. The country also offers medical malpractice insurance which makes the entire process more economical and less exacting. 
In some countries, like New Zealand, the medical board reviews the malpractice claim before determining the nature of a medical error and accordingly remits compensation. Damages are decided according to a predetermined schedule based on the type of injury. “Patients seek compensation for medical injuries not through malpractice suits as in the United States, but rather through a no-fault compensation system. Injured patients receive government-funded compensation, in turn relinquishing the right to sue for damages arising from personal injury except in rare cases of reckless conduct,” the Commonwealth Fund.
In the U.K., the National Health Service handles malpractice coverage, claims against and pay-outs for medical malpractice against NHS healthcare providers, as it’s usually the NHS that is sued, not individual physicians. 
Insights
(i) Special Statute
The sacrosanct constitutional guarantee for protection of life and personal liberty is an invaluable right which is not just confined to the citizens of India but extends to any ‘person’ in the Indian territory. The essence and spirit of the article is in consonance with global brotherhood. Though under Indian laws a medical tourist is not remediless, a composite and special statute providing uniform remedies for medical tourists can be envisaged by the legislature. Legal remedies provided in different statutes may give rise to multiplicity of proceedings in different fora. But a special mechanism with adequate legal remedies not only ensures predictability in interpretation but also enables the law enforcing authority to follow a common procedure for grievance redressal and dispute resolution. A timely step may attract and promote medical tourism in the country in coming days.
(ii) Uniform Grievance Redressal System
Appraising the changing needs of the global medical landscape, the G-20 countries could ratify treaties, conventions or international agreements that facilitate the formation of a uniform grievance redressal mechanism across borders. This will allow for a more seamless cross-border provider, payer and patient relationship.  
(iii) Arbitration
Alternately, should foreign doctors come to offer patients the option of arbitration as a mutually beneficial alternative to litigation, it’s likely that the legal security of foreign treatment may even spur MVT’s demand. Insofar as patients perceive arbitration as providing more certitude than the home country’s judiciary, such contracts may incentivize MVT.
Conclusion
While the lack of uniform standards and regulatory bodies for resolution of medical malpractice can’t single-handedly throw a wet blanket on the demand for medical travel, it wields enough power to inhibit its growth as risk-averse patients may express hesitancy to forego legal recourse for the perceived benefits of MVT. Therefore, it is paramount to ensure that every patient is guaranteed retributive justice in the event of negligence. Moreover, with MVT attracting several investors, insurance companies and governments can develop innovative mechanisms to protect practitioners in case of unforeseen complications or results arising from unintentional practice. Finally, governments need to ensure effortless access to online grievance redressal platforms where patients can voice their plight when medical negligence occurs.
 
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