Only if the Clinical Establishment Act (2010) becomes operational and brings into its ambit patients’ rights, will the unregulated private medical sector become accountable and credible, says a new book by two activist doctors
By Ajith Pillai
It is said that radical change often happens at a snail’s pace. It further slows down when it involves the government and there are vested interests keen to decelerate the process. It was way back in 2002 that the National Health Policy document strongly recommended that an act be passed “within a year” to regulate the burgeoning private medical sector. It took all of eight years for the Clinical Establishment Act (2010) to be passed and two more for the rules to be adopted in 2012. But today, six years after the law came into being, it is still not operational because the standards have not been finalized. There are also gaps in the law which need to be rectified for it to be effective.
It is in this context that the recently released book, Dissenting Diagnosis, (Vintage Books, Random House India) by two doctors—Arun Gadre and Abhay Shukla—becomes relevant. It is not merely a book or an emotive plea by them for better regulation of the private medical sector. It is a powerful document based on interviews with 78 doctors from across the country. Those interviewed include professionals from both private and public facilities, some of whom have identified themselves and are well-known. Others have chosen to remain anonymous.
MEDICAL MALPRACTICE
What comes through from their various testimonies is the shocking story of medical malpractice, gross negligence and financial exploitation of patients at those hospitals which are run purely for commercial considerations. The doctors reveal that there is large-scale dissatisfaction among patients who rush to these private hospitals over the quality of services, unaffordable costs of care and unnecessary procedures and surgeries conducted.
The problem is further compounded because in India 80 percent of outpatients and 60 percent of inpatients, according to WHO estimates, rely on private health care facilities which are largely unregulated and unaccountable. This dependency, experts agree, reflects the neglected and overworked public healthcare system.
That corruption goes on unchecked and is virtually institutionalized in the private sector is an open secret. Two years ago, the British Medical Journal carried a piece by Dr David Berger—“Corruption ruins the doctor-patient relationship in India”—which shocked many in the establishment. Equally revealing was an editorial written in response to it by Dr Samiran Nundy, noted gastroenterologist and surgeon at Delhi’s Ganga Ram Hospital in Current Medicine Research and Practice, a journal that he edits.
SHOCKING INVESTIGATIONS
To quote Dr Nundy: “The temptation to do unnecessary investigations like CT scans (1500 rupees cut) and MRIs and perform unnecessary procedures in the form of Caesarean sections, hysterectomies, appendicectomies and other operations for cash payments must be difficult to resist. And this does not only affect the doctor in a single handed practice. In many of our five star corporate hospitals, where the main motive seems to be profit for the shareholders, there is an institutionalized system of so called ‘facilitation charges’ or fees for ‘diagnostic help’ given to the physicians who refer patients regularly and for expensive procedures like organ transplants which may reach 1-2 lakh rupees….
“The senior doctors we are told, whose pay is in astronomical figures, are visited by neophyte financial experts at the end of every month with sheafs of financial data and asked to justify whether they deserve the salaries being paid especially when the revenue they have generated for the hospital from investigations and operations falls short of certain set goals.”
Some of the experiences recounted in Dissenting Diagnosis reiterate the point made by Dr Nundy. In fact, some of the narratives are so shocking that they almost seem unbelievable. Here are a few examples:
- According to doctors, pathology labs not only give cuts to doctors who send patients to them for elaborate and expensive tests but also help by providing manipulated or false reports. Dr Vijay Ajgaonkar, a senior diabetologist from Mumbai, revealed how a pathologist, acting on the suggestion of a doctor who referred a patient, declared the latter diabetic when he had normal blood sugar levels. This act rendered the patient the doctor’s lifelong client!
Even more shocking is what another doctor recounts. Some pathology labs, he says, misguide parents to believe that their new- born has jaundice. This is simply done by taking out printouts of bilirubin tests on result sheets with the normal range for adults on them. Even educated parents are unaware that for adults 1mg of bilirubin in the blood indicates danger. However, in newborns, mild jaundice is common and only bilirubin levels over 14 mg are considered dangerous. But panic sets in and the doctors and hospitals begin special treatment.
- A doctor recalls how a senior surgeon at a well-known Mumbai hospital removed a patient’s kidney by accident. Reason: the doctor was in a hurry and he prided himself as the “fastest surgeon in the world”. The procedure he had to conduct was a simple removal of a kidney stone. But in his haste, he accidentally cut the main artery to the organ. As a result, the entire kidney had to be removed. Afterwards, he dramatically explained to the relatives that the stone had damaged the entire organ and he had saved the patient’s life!
- There are several instances of relatives not being allowed to shift a patient from one hospital to the other without paying an added and highly inflated bill. One case which came to the notice of the Bombay High Court was that of a private hospital where a young man was admitted and operated upon following a head injury. The family paid Rs 2.76 lakh for the treatment. But when it sought a discharge of the patient, it was denied till such time that additional bills running into huge amounts of money were cleared. The relatives went to court and it ruled against the “illegal detention” by the hospital.
LURING DOCTORS
Patients being kept endlessly on life support system, uncalled for hospitalization in ICUs and being subjected to surgeries and procedures are now well-known. Pharma companies introducing expensive formulations as substitutes for cheap and effective generic medicines and promoting the former by luring doctors with sops and holidays abroad have all been documented in the book.
The need for regulating the private medical sector in the post-liberalization era when it is displacing the public healthcare facility cannot be overemphasized. Making private hospitals and doctors accountable is a key factor but protecting patients’ rights is equally, if not more important.
Dr Gadre and Dr Shukla’s submission is that the Clinical Establishments Act must be made operational on an urgent basis. It must incorporate an accountability system that involves all stake-holders, including civil society and patients, who are the end-users. Only if this is done will the unfair exploitation of patients be checked.
Pluses in the law
The Clinical Establishment Act (2010) has many positives, according to health activists and doctors. Here are some key ones:
- Mandates registration of all clinical establishments including pathology labs and imaging centers. It covers all recognized branches of medicine, including Ayurveda and Homeopathy
- Makes it mandatory for clinical establishments to display rates for services
- Fixes rates that can be charged and defines a standard range
- Provides for standard treatment guidelines which can ensure rational care
What needs to be done
- Ensure social regulation of the private medical sector. A multi-stakeholder body of both citizen and patients’ groups as well as doctors must review decisions taken by legal authorities
- Ensure patients’ rights. There must be a people-friendly redressal system
- While making regulations operational, the concerns of genuine charitable hospitals and trusts working in tribal areas and the hinterland must be considered
- The law must become operational nationally
“Add rights of patients to Act”
Dr Abhay Shukla is a public health physician and convenor of Jan Swasthya Abhiyan (People’s Health Movement –India) and co-author of Dissenting Diagnosis: Voices of Conscience from the Medical Profession. He spoke to Ajith Pillai about the need to effectively regulate the private medical sector. Excerpts:
The Clinical Establishment Act 2010 was introduced to regulate the medical sector. But it has not quite taken off….
Well, the Act was passed in 2010, the rules were adopted in 2012. It is the first law that addresses the issue of regulating private medical services in the country. Till now, you just had scattered laws differing from state to state which only related to registration of clinics and hospitals. It did not look at the functioning of these establishments. There was no accountability. As for doctors, there was a code of ethics which was supposed to be followed. From that perspective, the Clinical Establishment Act is a progressive law. 
But unfortunately, even four years after the rules were adopted, it has not become operational because the standards have not been fully formalized. By that what we mean is for the Act to be effective, the rights of patients have to be incorporated. That is a very important component. It does not find mention in the rules or the Act.
In a public facility, there is some sense of accountability—an individual or maybe a small group can have a dialogue with the doctors or demand accountability. But as a patient, this is not possible in a private facility unless there is a social process and a legal framework in place.
What about patients’ rights?
Among other things, patients have a right to proper medical treatment and emergency medical care. They should be given adequate information about the nature, severity and likely outcome of their present illness, provisional diagnosis and confirmed diagnosis and professional charges of the doctor or hospital. There must also be a grievance redressal mechanism in place.
Why is the law not becoming operational? Is it because of politics?
Much more than politicians, it is a section of doctors who are against any regulation. There are also organizations like the Indian Medical Association which claim they are the voice of all doctors in the country who are opposed to it. But the good thing is that there are several doctors who want the Act to become operational.
How has your book been received? It has delved upon touchy issues like medical ethics, medical malpractices and making hospitals and doctors accountable.
The response has been positive and negative. Dr Arun Gadre, with whom I have co-authored the book, was recently in Hyderabad. He said several doctors came up to him to tell him that they agreed with what we have put down in the book. There are several voices speaking up for transparency and accountability.
Misleading and exploitative
A first-person account of a harrowing experience in a private hospital
My father is an ex-serviceman and his medical expenses are covered under the ECHS (Ex-Servicemen Contributory Health Scheme). His treatment, for the record, is free at all ECHS affiliated hospitals. But is it? This experience is an eye-opener.
My father was diagnosed with high urea and creatinine levels and on May 26, 2016, was admitted to a private hospital in the NCR. After initial tests, he was shifted to the ICU. What unfolded at the hospital was both shocking and revealing.
From the moment my father was admitted, I was presented with list after list of expensive medicines and disposables to buy. These, I was told, were not covered under the ECHS and hence, I would have to not only pay for them but also procure them from the in-house pharmacy of the hospital.
Given that I had to shell out money for ostensibly free treatment, I tried to ascertain if there are any medicines not covered by ECHS. I was informed that my father’s treatment ought to be sans payment whatever the medicines administered or procedures followed. I contacted a doctor, who heads the ECHS panel at this hospital. He agreed that as per ECHS policy, the patient has to be treated free. By the end of the discussion, he assured me that henceforth, I would not be asked to buy things other than a few exceptional items.
But despite that, I was asked to procure expensive medicines and tubes for my father’s dialysis. When I protested, I was offered a discount. Frustrated by the harassment, I finally called Major General Bam, MD, ECHS, who categorically told me that I need not spend any money and the hospital must treat my father on a “cashless” basis.
Meanwhile—perhaps to get rid of a problematic patient who was not paying up—I was suddenly informed that my father might go into multiple organ failure. His intestines were not functioning, his lungs had started accumulating water and he had respiratory issues. I was advised to urgently shift my father to the army’s R&R Hospital or some other facility as his condition was precarious and he may not survive beyond two or three days.
I panicked and with great difficulty I managed to shift him to a hospital in Noida. The first hospital for some strange reason refused to even provide an ambulance for the patient’s transfer. In fact, just before my father was discharged, the hospital even said that he needed to be put on BPAP (a breathing support equipment) for which they gave me a list of purchases to make. I refused.
At the second hospital, my father was admitted into the emergency ward and subjected to various tests to assess his condition. The doctors told us that he was not in any danger. His intestines were functional, his lungs were clear, he had no respiratory problems. There was no multi-organ failure.
We were misled by the first hospital.
— Amit Tyagi, joint director, FICCI