The blog addresses the issues and disputes that take place in the healthcare field, and due to this dispute between the doctor-patient, the Alternative Dispute Resolution mechanism plays a major role. The blog begins with narrowly introducing ADR and medical practices and then explains the use of ADR and mentions few Judicial pronouncements. Lastly, it provides the practicality of the medical issues and use of ADR.
INTRODUCTION
The rapid progress of technology and the increasing
expectations of patients have given rise to immense challenges for healthcare professionals.
Another reason is that the patient knows their rights well in advance.
Conflicts and disputes occur regularly in clinical practices.
Dissatisfaction on the part of patients with a healthcare physician
or the fallout of the treatment is one of the common causes of disputes.
Even though it is expedient to resolve the disputes in its nascent phase, some
cases may also take up the form of a formal complaint and end up in court
for litigation. In the mass of the common law, the jurisdictions and victims of
medical malpractice can seek redressal under tort i.e medical negligence.
However, the road to the success of a claim for negligence is generally burdensome.
The process seems quite inefficient and costly.
“Justice delayed is justice denied” is one of the basic fundamentals in the jurisprudence of law. A speedy justice system is the need of an hour in any society. A society where there are several disputes like civil disputes, commercial disputes, family disputes etc. For resolving these disputes approaching the courts is the method in order to resolve these. But the courts in India are already overburdened with the end number of cases which is approx 4.4 crores in number and has also increased by 19%. So Alternative Dispute Resolution (ADR) was supposed to be the best alternative.
ADR AND MEDICAL ISSUES
There is an unending debate on the ongoing healthcare crunch in various countries, including India. The effects of this crunch are felt throughout the healthcare system and the entire economy of a nation. These costs are incurred on to the consumers, which leads the patient’s dissatisfaction in the healthcare industry. Here an important role is played by “Alternate Dispute Resolution” which is economical and fast-paced. ADR can also be called an out-of-the court settlement. It is a way of settling a dispute outside the periphery of litigation. Multifarious healthcare providers are now advancing the Alternative Dispute Resolution processes- mostly arbitration and mediation, which is a way to address the colossal legal cost. The healthcare sector includes various medical crises like disputes between physician and patient. Cases related to medical negligence/ malpractice and confidence, medication error, misdiagnosis, breach of trust infections, etc., and many other technicalities per se medical discrepancies, are the reasons for disputes in the healthcare sector. The healthcare department faces unanticipated events and incidents occurring at a very high rate, some of which are preventable and can be reversed, and some arise because of medical errors. https://www.who.int/news-room/fact-sheets/detail/patient-safety states that millions of patients are harmed, where 2.6 million deaths take place due to unsafe medical practices worldwide?[i] Globally, on average five patients die every minute because of unsafe medical care. Disputes in the healthcare sectors are terribly complex, and therefore the end result of the dispute might result in casting doubt over the ability and intelligentsia of the concerned physician’s to practice and the possible cancellation of the medical license. It is a tear-jerking experience for the parties involved at the cost of loss for both.
Arbitration is dealt under the Arbitration and Conciliation Act,1996. It is an irrevocable process where the animosity is decided by a neutral arbitrator who gives unbiased prearrangement in the dispute. Healthcare disputes can be cleared by arbitration, but not all disputes of this type can be solved by arbitration. The patient has a civil right to get proper treatment from the physicians and hospital staff. Also, the doctor-patient relationship being implied contract as they are two parties, where there is payment in the form of consideration for service i.e. treatment performed. It has both contractual as well as tortious elements.
JUDICIAL PRONOUNCEMENT
ADR need not be seen as the cure of dispute resolution in the events of medical conflict but as a forum which allows the parties involved to come together and reach to a friendly solution at the beginning conflict stage. The Supreme Court of India has stressed on the need for adopting the ADR method over litigation as a mode of settling disputes. In the case of Food Corporation of India v. Joginder Mohindarpal the Supreme Court stated that “Arbitration has a great urgency today when there has been an explosion of litigation in the Courts of law established by the sovereign powers” Similarly, in the case of Afcons Infrastructure v. Cherian Varkey Construction the SC emphasized the importance of mediation, especially in commercial matters, and observed that this type of Alternative Dispute Resolution (ADR) is ideal for parties faced with complex issues that they are willing to resolve through Negotiations. A gradual shift from litigation to the field of ADR, in India, in the healthcare sector will not be as easy reason being that the sector has dissimilar cultures and literacy and also include the systems with an imbalance of control and power and widely spread of inequalities.
Conclusion
As quoted by Jimmy Carter – “Unless both sides win, no agreement can be permanent.” A win-win situation can be brought by opting for ADR techniques in the medical sector, where both parties interests are safeguarded.
By research and analysis, we conclude that ADR in the present scenario and in future can be used as the speedy and strongest mechanism for resolving disputes of the medical sector depending on the precise nature of claims and losses. Disputes that are in personam can be resolved by the ADR mechanism. What is required is a comprehensive adoption of dispute resolution practices in the medical set-up. But what is also required is to bring change in healthcare policy in a way that hospitals have in-built disputes and a grievance redressal cell that aims in solving the disputes.
“Too often conflict amongst people and organizations has seen recourse to adversarial combat. With mediation, we can show that conflict can be resolved and justice rendered by healers and peacemakers.”
*The Authors are students of the 3rd and 4th year of B.A.LLB (H) of Amity University, Patna respectively.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the Authors and not to the Jurisedge Academy.
Readers may submit his/her blog for publication.Click Here or Scan the QR Code
Saurabh Kumar
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Author- Ozasvi Amol & Saurav Roy*
ABSTRACT
The blog addresses the issues and disputes that take place in the healthcare field, and due to this dispute between the doctor-patient, the Alternative Dispute Resolution mechanism plays a major role. The blog begins with narrowly introducing ADR and medical practices and then explains the use of ADR and mentions few Judicial pronouncements. Lastly, it provides the practicality of the medical issues and use of ADR.
INTRODUCTION
The rapid progress of technology and the increasing expectations of patients have given rise to immense challenges for healthcare professionals. Another reason is that the patient knows their rights well in advance. Conflicts and disputes occur regularly in clinical practices. Dissatisfaction on the part of patients with a healthcare physician or the fallout of the treatment is one of the common causes of disputes. Even though it is expedient to resolve the disputes in its nascent phase, some cases may also take up the form of a formal complaint and end up in court for litigation. In the mass of the common law, the jurisdictions and victims of medical malpractice can seek redressal under tort i.e medical negligence. However, the road to the success of a claim for negligence is generally burdensome. The process seems quite inefficient and costly.
“Justice delayed is justice denied” is one of the basic fundamentals in the jurisprudence of law. A speedy justice system is the need of an hour in any society. A society where there are several disputes like civil disputes, commercial disputes, family disputes etc. For resolving these disputes approaching the courts is the method in order to resolve these. But the courts in India are already overburdened with the end number of cases which is approx 4.4 crores in number and has also increased by 19%. So Alternative Dispute Resolution (ADR) was supposed to be the best alternative.
ADR AND MEDICAL ISSUES
There is an unending debate on the ongoing healthcare crunch in various countries, including India. The effects of this crunch are felt throughout the healthcare system and the entire economy of a nation. These costs are incurred on to the consumers, which leads the patient’s dissatisfaction in the healthcare industry. Here an important role is played by “Alternate Dispute Resolution” which is economical and fast-paced. ADR can also be called an out-of-the court settlement. It is a way of settling a dispute outside the periphery of litigation. Multifarious healthcare providers are now advancing the Alternative Dispute Resolution processes- mostly arbitration and mediation, which is a way to address the colossal legal cost. The healthcare sector includes various medical crises like disputes between physician and patient. Cases related to medical negligence/ malpractice and confidence, medication error, misdiagnosis, breach of trust infections, etc., and many other technicalities per se medical discrepancies, are the reasons for disputes in the healthcare sector. The healthcare department faces unanticipated events and incidents occurring at a very high rate, some of which are preventable and can be reversed, and some arise because of medical errors. https://www.who.int/news-room/fact-sheets/detail/patient-safety states that millions of patients are harmed, where 2.6 million deaths take place due to unsafe medical practices worldwide?[i] Globally, on average five patients die every minute because of unsafe medical care. Disputes in the healthcare sectors are terribly complex, and therefore the end result of the dispute might result in casting doubt over the ability and intelligentsia of the concerned physician’s to practice and the possible cancellation of the medical license. It is a tear-jerking experience for the parties involved at the cost of loss for both.
Arbitration is dealt under the Arbitration and Conciliation Act,1996. It is an irrevocable process where the animosity is decided by a neutral arbitrator who gives unbiased prearrangement in the dispute. Healthcare disputes can be cleared by arbitration, but not all disputes of this type can be solved by arbitration. The patient has a civil right to get proper treatment from the physicians and hospital staff. Also, the doctor-patient relationship being implied contract as they are two parties, where there is payment in the form of consideration for service i.e. treatment performed. It has both contractual as well as tortious elements.
JUDICIAL PRONOUNCEMENT
ADR need not be seen as the cure of dispute resolution in the events of medical conflict but as a forum which allows the parties involved to come together and reach to a friendly solution at the beginning conflict stage. The Supreme Court of India has stressed on the need for adopting the ADR method over litigation as a mode of settling disputes. In the case of Food Corporation of India v. Joginder Mohindarpal the Supreme Court stated that “Arbitration has a great urgency today when there has been an explosion of litigation in the Courts of law established by the sovereign powers” Similarly, in the case of Afcons Infrastructure v. Cherian Varkey Construction the SC emphasized the importance of mediation, especially in commercial matters, and observed that this type of Alternative Dispute Resolution (ADR) is ideal for parties faced with complex issues that they are willing to resolve through Negotiations. A gradual shift from litigation to the field of ADR, in India, in the healthcare sector will not be as easy reason being that the sector has dissimilar cultures and literacy and also include the systems with an imbalance of control and power and widely spread of inequalities.
Conclusion
As quoted by Jimmy Carter – “Unless both sides win, no agreement can be permanent.” A win-win situation can be brought by opting for ADR techniques in the medical sector, where both parties interests are safeguarded.
By research and analysis, we conclude that ADR in the present scenario and in future can be used as the speedy and strongest mechanism for resolving disputes of the medical sector depending on the precise nature of claims and losses. Disputes that are in personam can be resolved by the ADR mechanism. What is required is a comprehensive adoption of dispute resolution practices in the medical set-up. But what is also required is to bring change in healthcare policy in a way that hospitals have in-built disputes and a grievance redressal cell that aims in solving the disputes.
“Too often conflict amongst people and organizations has seen recourse to adversarial combat. With mediation, we can show that conflict can be resolved and justice rendered by healers and peacemakers.”
*The Authors are students of the 3rd and 4th year of B.A.LLB (H) of Amity University, Patna respectively.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the Authors and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code
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