June 2, 2016 1:03:14 am
A landmark order by the National Consumer Disputes Redressal Commission (NCDRC) has opened up interesting dimensions in medical law. The case concerned a woman infected with HIV by a blood transfusion in the course of a Caesarean section at a Kalyan hospital 20 years ago. It has been ordered to pay her Rs 12,000 a month for the natural span of her life. The format is that of maintenance, a reliable safety net, as distinct from the lump sum reparations customarily ordered by courts in malpractice cases, which evaporate in the hands of beneficiaries unaccustomed to handling large sums. If maintenance were pegged to inflation, it would be absolutely perfect.
Two other implications of the order are even more interesting. First, the case appears to have hinged on the question of informed consent. Consent is legally required for any invasive procedure, but it is not to be regarded as a simple matter of getting a signature on a form. The crucial issue is if the person giving consent, whether the patient or relative, understood the implications and risks of the procedure. Medical staff are accustomed to the legal requirement to explain the need for procedures and their associated risks. But how are they to gauge if this communication has been completely understood? This is a problem for medical administrators to grapple with.
The third implication is the most interesting, and its possible future implications are immense. Medical aid was already regarded as a service, making malpractice susceptible to legal remedy. Now, the NCDRC has defined blood as a “good”, bringing it within the ambit of commercial law. Blood is a tissue. A group of tissues adapted towards a bodily function is an organ. By extrapolation, the order could have implications for organ transplantation. A liver transplant, for instance, imposes huge financial and lifestyle burdens on families. There is a commercial angle to the procedure, even if the organ is donated. If a transplantable liver can be regarded as a good, will hospitals be required to offer minimum guarantees on its performance? The argument can be advanced to implants and genetically modified or engineered tissues and organs, which will become a commercially rewarding industry quite soon. The technology will be used for diverse needs, from immunological and hormonal intervention to the still-futuristic notion of memory augmentation. Following on from the NCDRC order, all such procedures may be exposed to the salutary effects of commercial law.
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