Dr M C Gupta, a doctor turned lawyer, provides medico-legal opinion on the legal aspects of modern medicine / allopathic hospitals employing AYUSH (Ayurveda, Yoga, Unani, Siddha and Homeopathy) practitioners.
Dr Gupta holds an MD (Medicine) from All India Institute of Medical Sciences (AIIMS), an LLB from Delhi University and LLM from Kurukshetra University. He has served as a faculty member at AIIMS for 18 years and as professor and dean at the National Institute of Health and Family Welfare. Currently, Dr Gupta is a practising advocate with health and medical law as the area of special interest. He is a member of the Supreme Court Bar Association and Indian Law Institute.
Are there any laws or guidelines with respect to the role of practitioners of Indian systems of medicine employed as medical officers in hospitals which deal only and solely with allopathic medicine? What is the status in the event of an error? — Dr Gladstone D’Costa, Voluntary Health Association of Goa
Dr Gupta Comments:
1) The practice of employing AYUSH practitioners in hospitals is common in many private hospitals. This is illegal and has been commented as follows by the National Consumer Commission:
“When a patient is admitted in a hospital, it is done with the belief that the treatment given in the hospital is being given by qualified doctors under the Indian Medical Council Act, 1956. It is not within the knowledge of the relatives of the patient that the patient is being treated by a Unani specialist. We hold that it is clear deficiency in service and negligence by the hospital for leaving the patient in the hands of a Unani doctor…
As laid down by the Apex Court in the above case (Jacob Mathew Vs. State of Punjab), we feel it is high time that hospital authorities realize that the practice of employing non-medical practitioners such as Doctors specialized in Unani system and who do not possess the required skill and competence to give allopathic treatment and to let an emergency patient be treated in their hands is a gross negligence.”
In Prof P N Thakur Vs. Hans Charitable Hospital, NC, 16 August 2007
2) This practice is employed by private hospitals to cut down costs because AYUSH graduates are available at a much less salary than MBBS graduates. The hospital owners naturally want to cut down expenses and that is the right of anyone who owns a business. However, no one is allowed to break law to maximise business returns.
As is clear from the NC decision quoted above, it is illegal on the part of hospital owners to employ AYUSH graduates under the guise of modern medicine graduates. Public needs to be cautious and vigilant against such hospitals. All concerned should complain against such hospitals in the interest of cleaning the medical profession. This is a material issue in a writ petition currently pending before the Delhi High Court against a corporate hospital owned by a senior IMA official.
3) While the fault lies with the owners of the hospital, blame must also be shared by the government which licenses and controls private hospitals and collects taxes from them and grants various favours to them or imposes sanctions upon them as it pleases but never bothers to check the malpractice of employing AYUSH practitioners in a clandestine manner.
Such malpractice is a clear reason in support of the Clinical Establishments Act, 2010, which aims at regulating clinical establishments. However, the government and the parliament made a mockery of this Act by imposing upon all private clinics and nursing homes a statutory duty to treat all emergency patients free of cost in contravention of the report of the Law Commission submitted as ‘201st Report On Emergency Medical Care To Victims Of Accidents And During Emergency Medical Condition And Women Under Labour (Draft Model Law Annexed), August 2006,” which contained detailed provisions for creating a state funded compensatory mechanism for compensating the medical profession for providing such statutorily mandated services.
The Health Minister Shri Ghulam Nabi Azad tried to be smarter by half and tried to hoodwink the medical profession, forcing them to file a writ petition against the Act in Madras High Court, which admitted the petition. In this way, the government itself botched its own potentially sensible efforts.
4) The following actions can be taken against private hospitals employing AYUSH doctors:
a) When patients choose a hospital, they should choose the one, which gives a written guarantee that it does not employ any AYUSH graduate. They should also prefer a hospital where all doctors carry a name badge showing in brief the academic qualifications like MBBS, MD or DM etc.
b) Complaint against the erring hospital can be made to the consumer courts and the state health department. If the state has a CEA, complaint can be made to the CEA authorities also. In an appropriate situation, a PIL may also be filed.
5) If the court awards compensation on a complaint where it has been alleged and proven that the treatment was given by an AYUSH doctor, it is likely that the award will be payable, fully or mainly, by the hospital and not the AYUSH practitioner concerned.