Insurance companies in protection of doctors;
The case Gurudatta Puri Hospital lithantripsy center vs Nusrat [2002] travelled from District Forum in Maddhya Pradesh wherein Doctors remained absent for defending their case and it was only insurance companies present before the forum to defend the negligence of Doctors as defending parties .The case was decided against Doctors. An appeal was filed by Doctors as well as by insurance companies. before State commission One of the issues before the commission was whether the Insurance Companies should be made party in defense in Doctors medical negligence cases State Commission held ;
“The case can be dealt and decided without the help of insurance companies with the records available with the idea that if insurance companies are brought in the picture the consequences will be adverse for the consumers causing more delay and harassment by two big giants Doctors too may also take the things easy if their responsibility is shared by insurance companies”
National Commission dealt with the similar case while disposing off two revision petitions from Punjab State commission on different footing though the motive was to safe guard the interest of the consumers only In those two Revision petitions New India Assurance Company Ltd. V/S Hardeep Singh and others Revision petitions No 2640 AND 2648 Of 2002 arising out of two separate judgments from Punjab State Consumer Dispute Redressal Commission ,the view taken by National Commission was that if insurance companies are barred from making party, they will have a good case to go in appeal on this very ground. Even if they do not go for appeal, there may be another case by Doctors against insurance company for their claim wherein consumer is a sufferer if dragged in their litigation or not paid in spite of winning the case against the Doctors. National Commission with the intention to help the consumers allowed insurance companies to be impleaded as party in defense but at the same time defined the role of both ,Doctors as well as Insurance companies and held that doctors are to defend their cases on merit on their own .Insurance companies will be an agency who will tell about the validity of insurance made and its other relevant aspects.i.e admissibility, period of the policy made etc.Any other objections if company has in respect of the policy can also be decided here itself.
This view of National commission was further confirmed by Honorable Supreme Court and now, may it be known to consumers that insurance companies if made party to the case with defendants, it is no more a matter to worry for them as both have to play their own roles and interest of consumer shall be taken care by the consumer protection agencies i.e. Forums and Commission for getting them justice
While dealing with the law lay down on the subject by the National Commission and then confirmed by the Supreme Court in the above case, it will be relevant to look into the background of the situation which had created concern for the legal lobbies of the country. It was a death case of a young and talented boy of sixteen year old, who died in 1996 due to medical negligence of doctors which came before the National commission for adjudication. The boy was given spinal anesthesia for performing operation whereas such anesthesia is not allowed to the person of this age as per the medical literature available on the subject this wrong application resulted into death of the boy. But no negligence could be proved in this case in 1996 because Insurance companies jumped in to picture for defense of doctors with battery of eminent lawyers and raised number of preliminary objection and father of the boy was forced to compromise ultimately. This was a very unfortunate situation where Insurance companies being party in defense defended the genuine case of the complainant with full force without considering the pains of a father who lost his young son.
It was in this background that The case Gurudatta Puri Hospital lithantripsy center vs Nusrat [2002] was dealt by the supreme court with utmost care and insurance companies are allowed to do their duty to the limited extend and consumers must know the law on the issue
.
Insurance company when refuses to indemnify negligent doctor
Yet another dimension in medical negligence cases. Honorable National Commission gives no relief to erring doctor who was found negligent while treating a patient and insurance company refused to indemnify the doctor who did not bother to inform the insurance company about the negligence case filed against him .
A complaint was filed by one Mr. Narayan Chandra Saha before a consumer forum in west Bengal against a doctor for negligence and succeeded in it,doctor was slapped with an amount of Rs 2, 67,750 as compensation by a Consumer forum in west Bengal. He filed an execution petition and after receiving the notice, doctor sent it to the insurance company for making the payment to the complainant as he had taken professional indemnity policy from New India Insurance Co. Insurance company refuses to pay the same as they were not informed by the doctor about the case filed against him, neither they were made party in the case.
Doctor after refusal by the insurance company comes before the consumer forum alleging deficiency in services on the part of insurance company .Consumer forum allowed the complaint. An appeal filed by the Insurance company against the order of consumer forum and State commission reverted the order of consumer forum favoring insurance company. Doctor now filed revision petition before the National commission
National commission in this matter of Tarunjit Roy(Dr) versus New India Insurance Company went into detail of the case,checked thoroughly the points discussed by the State commission also. National commission is of the view that the clauses referred as terms & conditions specified in the insurance agreement are of vital importance for dealing with the question as to whether insurance company is deficient in services by repudiating the claim of the doctor when the Doctor has taken professional indemnity policy and has paid the premium .Clause 8.1 to 8.3 of the policy require following acts to be done by the insured doctor;
“The insured shall give written notice to the company as soon as reasonably practicable of any claims made against the insured and give all such additional information as the company may require. Every claim, writ, summons or process and all documents related to the events shall be forwarded to the company. Further, company will have right but in no case obligation to participate in the proceedings .Company shall not have any obligation to make payment if insured settles the claim on his own.”
In the present case, insured doctor sent the communication on 17.1.2008 in writing only after the award has been passed against him. No claim, summons or notice was sent to the company neither it was a party to the proceedings which is a clear violation of the terms .By doing so, insured have deprived the company of his right to watch the proceedings in CF case no 39/99 or to know the manner case has been defended by the doctor. Not only this, insured doctor did not file any appeal against the order passed by the forum .It was other OP in the same matter who filed an appeal no 233/A/2005 before the state commission and succeeded. After an appeal is filed no information about the award was given to the company. Further, when execution was filed by the complainant Narayan Chandra, Saha for realizing the awarded amount, insurance company was still kept in dark .Under the above circumstances, insurance is in no way deficient in services if they repudiate the claim at this stage.
We now hereby clarify a few things for consumers to understand and Consumers are not to fear any more –
- Regarding reluctance of doctors to give opinion against doctor, it’s not always the patient who is asked to bring expert opinion It is the redressal agency also who send papers for expert opinion from Govt Hospitals and even from medical associations.
- If complete documents are not available with consumer, he may request the consumer forum to direct the doctors or hospital to produce the relevant documents and disclose the name of treating doctor for making him party if not known to the consumer.
- Medical literature if produced before the court must be of established norms under the medical science and not mare views of any doctor.
- Patient must disclose every fact about the ailment in order to get right method of treatment.
- Insurance companies if made party to the case with defendants, it is no more a matter to worry for them as both have to play their own roles and interest of consumer shall be taken care by the consumer protection agencies i.e. Forums and Commission for getting them justice.
- Getting panic and taking law of the land in hands weaken the case of consumer before the court of law by giving opportunity to the wrong doers to temper the documents well before time.
Dr Prem Lata