Considering the litigious environment that exists today, a professional indemnity insurance policy is a must for every doctor. In fact, many corporate hospitals won’t give attachments to doctors unless they have adequate professional indemnity insurance cover. But how many doctors actually read the insurance policy terms and conditions carefully? Not many. And that is where the trap lies – in the fine print of terms and conditions. The case – Dr. Inderjeet Kaur Vs Amandeep Kaur and Anr (decided by Punjab State Consumer Disputes Redressal Commission) – highlights this fact.
In this particular case, the defendant (doctor) had performed an ultrasound examination on the complainant (patient), and had given an ultrasound report with diagnosis of intrauterine foetal demise (missed abortion) at 8 weeks 4 days of gestation, due to absence of foetal cardiac activity. The patient alleged that the doctor further advised the patient to undergo abortion. The patient sought a second opinion at a diagnostic centre, wherein the foetus was found to have normal cardiac activity and interval growth. The patient sued the earlier doctor for causing her mental harassment and additional monetary expenses by giving a wrong diagnosis of intrauterine foetal demise, and also of unfair trade practice in the form of wrong advice for an abortion. In defence, the doctor claimed that the error in diagnosis was due to the discrepancy in gestational age of the foetus by LMP and USG, and that cardiac activity may not be seen in very early pregnancy. The doctor denied the allegation of having advised an abortion.
The consumer forum observed that the doctor had not exercised due diligence while giving a diagnosis of intrauterine foetal demise, since the prudent way would have been for the doctor to call the patient back for repeat ultrasound examination at a later date as it was an early pregnancy. The consumer forum expressed that the patient was lucky not to have undergone an abortion on the basis of the wrong diagnosis. The consumer forum held the doctor negligent and awarded monetary compensation to the patient for the mental agony suffered due to wrong diagnosis.
The insurance company which had provided professional indemnity insurance cover of Rs. 5 lakh to the doctor was also a respondent in this case, and the consumer forum observed that the terms and conditions of insurance were such that the insurance company was liable to compensate only if the patient suffered any bodily harm and / or death due to error, omission or negligence on the part of doctor. Since in this particular case, the patient hadn’t suffered any bodily harm but, rather, mental harassment, the insurance company was not liable to pay the compensation. Thus, the compensation would be paid by the doctor and not by the insurance company.
It must be noted that in another case – Anoop Awasthi Vs Dr. T. Kataria and Ors --the National Consumer Disputes Redressal Commission (NCDRC) has awarded compensation to the patient despite absolving the doctors of the allegation of negligence. The NCDRC observed that though the misdiagnosis and resultant wrong treatment on the part of doctors could not be labelled as negligence but only as an error of judgment, yet the patient deserved to be compensated for the mental agony and shock suffered due to the misdiagnosis.
Considering that consumer fora are now considering compensation for mental agony in the absence of negligence, and also in presence of negligence without actual bodily harm, doctors face a stiff challenge ahead. It would be only prudent for doctors to read their professional indemnity insurance policy terms and conditions carefully, and choose a policy which gives them maximum coverage for different types of damages which patients may claim.
(This write-up is only a general advisory and not a substitute for qualified legal opinion. Reader discretion is therefore recommended. If you find this write-up useful, please share it with your doctor-friends. TechnoScope Systems is a venture by doctors, for doctors. To know more about how we can assist you, please visit our website. You can write to the author at: email@example.com)