Business Accent

Cover Thyself

As healthcare industry is becoming more vulnerable to litigation, the industry needs to adopt better and well designed risk management techniques

Dr Amit had been practicing for nearly three decades and had a successful and roaring practice. Over the years, he had developed a wonderful rapport with his patients and was seen by them to be more of a family member than a doctor. A notice addressed to the doctor came knocking from the Consumer Disputes Redressal Forum. To his utter shock, a patient had claimed compensation alleging that he had been negligent in treating him. The doctor never foresaw this happening to him and was not sure how to handle this.

In the past, doctors seemed to have enjoyed some amount of immunity from being reprimanded by courts of law. We are all aware that this scenario has changed in the recent past. The increased consumer awareness could be one of the several reasons for increase in litigation against doctors.

Reality Check

The risk to litigation is a stark reality and cannot be just wished away, even if it were to be expected it may not always be possible to avert it. Simple precautions can, however, minimise the possibility of a patient dragging the doctor into litigation. Therefore, it would be prudent to be aware of the risks and to be well prepared to protect ones' interest in adversities. This would be technically termed as risk management. However specialised it may sound, risk management is something that each doctor needs to form part of ones' clinical practice.

The Risky Zone

Every doctor needs to identify the pitfalls in his practice which can give rise to a grievance. Not every patient would walk from a doctor's clinic directly to a court of law. The patient or his relatives would either drop hints or indicate in some manner that they are dissatisfied with the treatment administered. This stage is very important to manage. This does not mean simply offering the patient or his relatives some compensation right away. A direct offer for compensation without discussions is more likely to aggravate the situation. It would be presumed that the money is been doled out to hush up the matter!

Exchange a Few Words

Failure to effectively communicate with the patient is known to be one of the major reasons for patients' grievance. Thus, it is much more convenient and appropriate if the patient is counseled before treatment is administered to the patient. The patient should be made aware of the nature of the ailment he is suffering from, the options of treatment available and the advantages and disadvantages of the various modalities of treatment.

The patient should be allowed to make informed decisions regarding the treatment (except in emergencies where this may not be possible). Each doctor is aware of the areas of concern that are peculiar to his practice. To illustrate, a doctor with special interest in cosmetic procedures runs the risk of patients having unrealistic expectations. This can be avoided if the patient is properly counseled. A pre-procedure detailed discussion on the nature of the problem that the patient has, the options of the treatment available and the advantages and disadvantages of the various options (without aggressively and overzealously suggesting a particular modality of treatment) goes a long way in mitigating the apprehensions of the patient. Some patients believe 'laser therapy' is an answer to most beauty related problems. However, laser has its own set of indications and limitations. The patient should not be offered the therapy merely on his request.

The Hard Truth

Despite all precautionary measures, there would still remain a percentage of aggrieved patients who would agitate their protest before a Court of Law. The doctor would, apart from having to bear mental agony, be required to spend on seeking legal help. In the unfortunate event that the matter is decided against the doctor, the doctor would also need to pay the ordered amount to the patient or his legal representatives. Notably, the expenditure on defense costs is likely to accrue irrespective of the outcome of the litigation.

Further, litigation is known to take a protracted course. The expenses incurred in defending the allegations of medical negligence or deficiency of services can be a major drain on financial resources. The allegations may be entirely baseless, but the fact remains that whatever be the final outcome of the matter, defense costs would be incurred. These expenses could not only be substantial but also prohibitive depending upon the professional brains engaged. Even if the decision were to go in favour of the doctor and even if the Court/ quasi-judicial authority is of the opinion that the complaint is of frivolous/ vexatious nature, the doctor may not be suitably compensated for all the agony he has undergone during the phase of litigation.

If Proven Guilty

If the allegations are proved, the courts would award appropriate compensation (damages) and costs to the complainant. The purpose of the compensation is to place the complainant in a financial position that the complainant was in, prior to the mishap (status quo ante). Thus, if a breadwinner dies as a result of a wrongful act on the part of a doctor, the doctor will be liable to pay compensation to place the dependants in a financial position which they would be, had the death not occurred. The compensation payable could be under headings such as loss of wages, mental agony, loss of maternal/ paternal affection and others. Therefore, financial implications of litigation also include the liability to pay compensation.

Cover Thyself

As litigation (and its consequences) could lead to budgetary constraints, risk planning becomes important. This risk can be transferred to a third party and such a transfer of risk forms an important form of risk management. By buying an insurance policy, the risk is transferred to an insurance company (albeit for a premium).

A professional indemnity policy cover would take care of the defense costs and the compensation, if payable. However, it is advisable to familiarise oneself with the terms and conditions of the policy and then to take a well-informed decision to buy an insurance policy. It is important to know whether the policy is covering all aspects of risks to which the doctor is exposed to. There could very well be exclusions and for which the doctor has himself to fend for.

It is also important to note that merely because there is an insurance policy in place, the doctor cannot dispense with risk planning. The policy covers defense costs and payment of compensation, if payable. It would not cover losses such as those occurring due to loss of reputation. The reputation of the doctor once blemished may be difficult to reinstate to the original position. Further, if the insurance company finds the doctor to be a bad risk to cover, it may choose either not cover the doctor or sell the policy with loading of premium and/or imposing stringent terms and conditions. Therefore, notwithstanding the fact that the doctor has purchased a professional indemnity policy, a proper risk management plan should be in place.

Risk Management

Not only there should be a risk management plan in place but also a constant monitoring of the plan with respect to its effectiveness in handling risks. A review of the plan is necessary depending upon the changes in clinical practice, near miss accidents and the like. This is as important as formulating the risk handling plan. A risk management plan is designed as per the needs of the doctor or the hospital/ nursing home.

Availability of funds is also important determinant for designing the plan. Risk management concepts are widely recognised and applied in various other fields. For example, in a chemical industry there is a risk of fire which is likely to lead to huge losses. Risk managers are specially recruited for handling risks. A well-designed risk management plan may not be able to give a definite smooth ride but can certainly act as a shock absorber. The medical professionals could then focus on their area of expertise, namely treatment of patients and the risk manager could take care of the risks involved.

The writer is a Consultant Dermatologist Mahatma Gandhi Memorial Hospital Mumbai

subodhsirur@yahoo.com