This was my Health Law Project in VIII Semester. My friend, Yashesh Kamdar and I worked on this topic jointly. We researched quite a bit on this topic before writing this. Hope it is of some use to the readers.
Introduction
The profession
of healing the suffering has gained respect from all corners of the society since
time immemorial. A physician, apart from being a healer, has been looked upon
by the masses as a role model of grace personified, though of late this image
has transformed to a mere service provider. This can partly be attributed to
doctors themselves, owing to the increasing number of cases involving doctors
engaging in unethical practices coming to light and, therefore, medical
professionals have over the period lost the confidence of their patients and
the society.
The learned
scholars, at all times, were sensitive to this tender aspect of a noble and
pious profession and made sincere attempts to codify the attitudes and
practices to be adopted by the physicians.
Basically, Negligence is the breach of a legal
duty to care. It means carelessness in a matter in which the law mandates
carefulness within reasonable limits. A breach of this duty gives a patient the
right to initiate action against the physician.
Persons who offer medical advice and treatment
implicitly state that they have the skill and knowledge to do so as they have
the skill to decide whether to take a case, to decide upon the likely course of
the treatment, and to administer that treatment.[1]
This is known as an “implied undertaking” on the part of a medical
professional.
Doctors in India may be held liable for their
services individually or vicariously unless they come within the exceptions
specified in the case of Indian Medical Association v. V P
Shantha.[2]
Doctors are not liable for their services individually or vicariously if they
do not charge fees. Thus, free treatment at a non-government hospital,
governmental hospital, health center, dispensary or nursing home would not be
considered a “Service” as defined in Section 2 (1) (o) of the Consumer
Protection Act, 1986. This is a very wide definition, and the determination of
this would depend upon and differ in each case.
However, no human being is perfect and even the
most renowned specialist could make a mistake in detecting or diagnosing the
true nature of a disease. A doctor can be held liable for negligence only if
one can prove that she/he is guilty of a failure that no doctor with ordinary
skills would be guilty of if acting with reasonable care. An error of judgment
constitutes negligence only if a reasonably competent professional with the
standard skills that the defendant professes to have, and acting with ordinary
care, would not have made the same error.
We shall attempt to understand this concept in
light of the Judicial Interpretation as given by the apex court of India.
Medical Negligence
Negligence as a
tort is the breach of duty caused by the omission to do something which a
reasonable man, under a given set of circumstances, would or doing some act,
which a prudent and reasonable man would not do.[3]
This definition incorporates the following interrelated, yet independent
constituents:-
1. A legal duty to exercise reasonable skill, knowledge and care;
2. A breach of that duty; and
3. Consequential damages arising from such breach.
The test for
determining the negligence of a medical professional was first given by McNair
J. in Bolam’s case[4] to
be ‘the standard of the ordinary skilled
man exercising and professing to have that special skill.’
The English view
is that a doctor is not guilty of negligence if he has acted in accordance with
the practice accepted as proper by a responsible body of medical men. But what
amounts to reasonable conduct should only be decided upon by the court, based
on the views of the experts in the field. As to what other medical
professionals do in similar situations, will be a material consideration to be
weighed by the court.
However, there are certain inherent drawbacks in the adjudication of
medical negligence cases by the court which must be kept in mind from the very
outset. Firstly, Judges are not experts in medical science, but rather
are lay men. This itself often makes it somewhat difficult for them to decide
cases relating to medical negligence. Moreover, Judges have usually to rely on
testimonies of other doctors which may not necessarily in all cases be
objective, since like in all professions and services, doctors too sometimes
have a tendency to support their own colleagues who are charged with medical
negligence. The testimony may also be difficult to understand, particularly in
complicated medical matters. Secondly, a balance has to be struck in
such cases; while doctors who cause death or agony due to medical negligence
should certainly be penalized, it must also be remembered that like all professionals
doctors too can make errors of judgment but if they are punished for this no
doctor can practice his vocation with equanimity. Indiscriminate proceedings
and decisions against doctors are counterproductive and serve society no good
and inhibit the free exercise of judgment by a professional in a particular
situation.[5]
The view
in Bolam’s case[6]
was accepted in India in the landmark case of Suresh Gupta v. Govt. of NCT of Delhi and Anr.[7] However,
that case got referred to a larger bench of the Supreme Court and finally in the
Jacob Mathew vs. State of Punjab,[8] and Shiv
Ram v. State of Punjab[9] the Bolam test
was approved.
The reality is that the test (or at least the inflexible way in which
that test has come to be applied by the courts) has so distorted the process of
determining medical negligence, that it is almost impossible to envisage a case
in which the test is applied in its present form where a court will be able to
hold that a doctor has been negligent.[10]
A glaring defect in the application of Bolam’s test, some argue, is that
a doctor would not be negligent as per this test, merely because there is a
body of opinion who would take a contrary view in the circumstances to that
taken by the doctor in question so long as he proves that his actions are
endorsed by a respectable body of medical opinion albeit a different set of
professionals putting forth a contrary view.[11]
This in effect erodes the very function of the judge to determine whether the
case in fact involved negligence or not and places this function in such cases
in the hands of professionals the standard of whose very profession itself is
in question. This difficulty in the application of Bolam’s test was
noticed in the Bolitho case[12]
wherein two contradictory opinions were received from the testifying doctors.
Hutchison J. in the Bolitho case expressed the difficulty a Judge faces
when such contradictory opinions are received even if in the considered and
logical opinion of the judge one testimony weighs with greater logic and reason
than the other as it would amount to the judge, a lay man in medical terms,
substituting his own opinion for that of professional experts.[13]
Doctor-patient relationship
Two crucial
facets central to the doctor-patient relationship are confidentiality and
consent. The right to confidentiality stems from an
individual’s right of privacy which, in turn, is implicit in the right to life
and liberty guaranteed by Article 21 of the Constitution. In medical terms,
this can be described under two heads – autonomy privacy (freedom to make
certain decisions about what happens to one’s own body) and informational
privacy (to keep the personal information private). Such confidentiality may be
breached in certain exceptional cases such as for the protection of patients
against a communicable disease or specific risks,[14]
if the patient is suffering from certain sexually communicable diseases to
inform others including the sexual partner who would then be bound under the
same obligation of confidentiality.[15]
Consent is
material to all medical treatments, with the exception of emergent medical
care, when consent can be waived/deferred. The basis for recognizing consent to
medical treatment is the individual’s right to autonomy or self-determination.[16]
For the consent
to be valid in law, it must be an informed consent. The patient must consent to
the treatment after understanding the nature of the treatment. Before this, he
must have some information about the procedure itself.[17]
Without appropriate/adequate consent, a doctor might face the risk of
proceedings for assault/causation of injury, in case of any complication
arising from the medical procedure.
Persons Lacking Capacity generally includes
minor children and persons of unsound mind.
The English view
in Gillick v. West
Norfolk and Wisbech Area Health Authority[18]
is that if the patient is capable of understanding what is proposed,
and of expressing his or her own wishes, there is no good reason for holding
that he or she lacks the capacity to authorise the doctor to perform an
examination or give treatment. This would mean that despite a child being a
minor as per the applicable law, if he iscapable of understanding and taking a
decision for himself, his personal consent ought to be taken. But in cases
where the minor (child) lacks the relevant capacity to consent to treatment,
parental consent is required unless there is an emergency.[19]
The same would be applicable in cases of persons of unsound mind. The consent
of their guardian would be required unless it was an emergent case.
Emergency Medico-legal Cases
In India, after
Pt. Parmanand Katara’s18 case, in the context of emergent care
of medico-legal cases, it was clarified that every injured citizen
brought for medical treatment should instantaneously be given medical aid to
preserve life and thereafter the procedural criminal law should be allowed to
operate in order to avoid negligent death.
A doctor can
provide medical treatment to a child or a person of unsound mind in the absence
of parental consent in an emergency, based on the principle of necessity. But
what would happen in the event the parents refuses consent to a treatment that
could be life saving for a child? Would the doctor be justified in performing
the treatment in the light of express prohibition?
The position of
law in India is not entirely clear on this point, however, it could be argued
that in some cases, the doctor can act in disregard of parental prohibition as
was held in the Gillick case.[20]
Judicial Interpretation
There have been
a plethora of cases relating to medical negligence in our honorable Supreme
Court. The decisions given by the court have been rather craved from a long
time. With the help of this project, we would like to bring out the current
judicial interpretation of this concept given by the courts. The court has
provided a comprehensive definition in both civil as well criminal aspects of
medical negligence. We see that at present there are three remedies or
solutions that are available to the victims of medical negligence:
1.
Remedy
under Consumer Protection Act, 1986
2.
Other
Civil Remedies
3.
Criminal
Liability of the Medical Professional
At the outset,
we would like to make it clear that our scope of research is highly focused and
the focal point of research is “Medical Practitioner” or “Doctor”. Let us discuss all the aspects of medical
negligence one by one.
Remedy under Consumer Protection Act, 1986
The latest case
in this regard is Minor Marghesh K. Parikh v. Dr. Mayur H. Mehta[21].
In this case, the appellant’s leg had to be amputated on account of the
negligence of the doctors. Initially, the National Consumer Commission did not
accept this contention of the appellant but when the matter came to Supreme
Court, it held that the National Commission was in error in giving the
judgment. The court ordered for a fresh hearing of the matter and said that “Court must pass an order considering all
material facts and circumstances of the case and should not leave material
facts unenquired or unverified.”
In another case
of Kusum
Sharma and Ors.v. Batra Hospital and Medical Research Centre
and Ors.[22],
the basic question was whether the death of the deceased occurred due to 'deficiency in services'
by the Respondent Hospital. The court said that the Services rendered by the
medical practitioner by way of surgery would definitely fall within the ambit
of ‘Service’, as defined under Section 2(1)(o) of the Consumer protection
Act,1986[23].
Deficiency[24]
in service has to be judged by applying the test of reasonable skill and care
which is applicable in action of damages for negligence. In the instant case
the doctors who performed the operation adopted the procedure which in their
opinion was in the best interest of patient, in good faith and within medical
bounds. Thus, a mere deviation from normal professional practice is not
necessarily an evidence of negligence. Hence, the court held that “Doctors
performing their duties and exercising an ordinary degree of professional skill
and competence cannot be held guilty of negligence.”
It is interesting to observe that the court has taken a very wide
connotation and understanding of the concept of medical negligence. The court
says that these questions are to
be judged on the facts of each case and there cannot be a mechanical or strait
jacket approach that each and every case must be referred to experts for
evidence[25].
The court also says
that a professional may be held liable for negligence if he was not possessed
of the requisite skill which he professed to have or, he did not exercise, with
reasonable competence in the given case the skill which he did possess. The
Standard to be applied for judging, whether the person charged has been
negligent or not; would be that of an ordinary person exercising skill in that
profession. Thus, it is not necessary for every professional to possess the
highest level of expertise in that branch which he practices[26].
Also, in today’s context, the court made a very stimulating remark in
relation to the quantum of damages. The court says that while computing
compensation the Court has to strike a balance between the inflated and
unreasonable demands of a victim and the equally untenable claims of the
Opposite Party saying that nothing is payable. Thus, the Court must award
adequate compensation[27].
Also the court has
time and again reiterated the fact that “Whenever a complaint is received
against a doctor or hospital by the Consumer Fora, then it should first refer
the matter to a competent doctor or committee of doctors, specialized in the
field and only on their report a prima facie case of medical negligence can be
made out and a notice can be issued to the concerned doctor/hospital”[28].
Thus, as far as remedy
under Consumer Protection Act, 1986 is concerned, the situation is pretty
clear. The Court has itself said that there is no straight jacket approach and
each case has to be decided on its own merits. Now, let us shift our focus to Civil
Negligence or tortious negligence.
Other Civil Remedies
There have been many
landmark cases on tortious Negligence as well, but, the current position of law
seems to be a bit different. The latest trend setter in this regard is the case
of Samira
Kohli v. Dr.
Prabha Manchanda and Anr.[29]. In this case the
Hysterectomy of the patient was performed without her express consent and
consent was obtained from her mother instead. The court held that only in cases
of grave and imminent danger to life, can the doctor perform such a major
surgery without express consent of the patient herself. In the present case, it
was found that there was no need to remove the ovaries of the patient and cause
her irreparable and permanent loss moreover when it was done without her
express consent. Thus, “performance of the surgery was an unauthorized
invasion and interference with Appellant’s body which amounted to a tortious
act of assault and battery and therefore a deficiency in service.”
Surfeits of cases have followed this case. Although civil negligence is
also to be filed in the consumer forum itself, but still a fine line of
difference is to be drawn between the Consumer Protection Act Cases and Civil
Negligence Cases which was skillfully done in Dr. Prabha Manchanda’s Case.
Criminal Liability of
the Medical Professional
It is imperative to move our emphasis on Criminal Negligence now. It
would be futile to conduct a Judicial Interpretation of Medical Negligence
cases without taking into account the Criminal Negligence part. We know that
Criminal Negligence of a professional usually falls within Section 304A[30]
of Indian Penal Code. There have been many landmark cases in this regard
such as Suresh Gupta v. Govt. of
NCT of Delhi and Anr.[31] and Jacob Mathew v. State of Punjab[32]. The courts have held that an FIR cannot be lodged against a doctor
under Section 304A unless there is a prima facie case of Gross Negligence and
recklessness by the doctor.
However, I fail to understand this disparity. On a bare reading of
Section 304A, we see that simply a rash and negligent act not amounting to
culpable homicide would attract the penal liability under the aforesaid
provision. But, according to the courts, a mere negligent act would not attract
Section 304A. For Section 304A to apply to doctors, the degree of negligence
has been set to be very high. Section 304A does not talk about degree of
negligence anywhere. So, it is beyond me to understand from where the court is
making such an interpretation in Dr. Suresh Gupta and Dr. Jacob Matthews. This
matter was subsequently resolved by a larger bench in the same case which said
that the degree of negligence is not higher or unusual in case of
professionals.
In the case of Malay Kumar Ganguly v. Dr.
Sukumar Mukherjee and Ors.[33],
the court held that “for criminal prosecution of a medical
professional for negligence, it must be shown that the accused did something or
failed to do something which in the given facts and circumstances no medical
professional in his ordinary senses and prudence would have done or failed to
do.”
Thus, as of now, Malay Kumar Ganguly’s case is the law of the land. It
depicts a saner approach adopted by the courts. Malay Kumar Ganguly’s case
basically said that the jurisprudential concept of negligence differs in civil and criminal
law. For negligence to amount to an offence the element of mens rea must be shown to exist. To
prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something, and intended to
do the same, which in the given facts and circumstances no medical professional
in his ordinary senses and prudence would have done or failed to do.
It is also important to observe that Trial Court Judge has been
bestowed with wide powers with respect to fixation of liability upon the
doctor. In the case of B. Jagdish and Anr. v.
State of A.P. and Anr.[34], the magistrate issued process against the Appellant and took cognizance of the
offence to be negligence in performing professional services despite the fact
that civil liability of negligence had already been fixed upon the medical
professional. The Supreme Court held that whether Criminal liability could be
fixed in this case or not is a question to be determined by the learned Trial
Court judge alone.
In the case of Mahadev Prasad Kaushik v.
State of U.P. and Anr.[35],
a complaint was registered against the doctor under Section 304 IPC. The court
said that in every mishap or death during medical treatment, a medical man cannot
be proceeded against in a Criminal Court. Thus, the court held that “A
professional may be held liable for negligence on one of two findings: either
he was not possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable competence in the given
case, the skill which he did possess.”
Future Lessons
We see that from a present position of the conceptual understanding of medical negligence by the courts, following are the lessons and suggestions that the courts as well as the government must keep in their minds in future.
1.
Special medical negligence courts: We see that in many cases the court has said that opinion from a body of
experts is needed in all the cases since each case has to be decided on its own
merits and intricacies.[36]
There are hundreds of Medical Negligence cases coming up every day in Consumer
Forums across the country. And in many a cases, expert opinion or expert
evidence is not being adduced simply because of technical glitches. It is best
that a separate set of courts be designated to Medical Negligence cases. This
would provide a twofold benefit. Firstly, it would benefit the patient since he
will have a specific forum and a specific remedy. It will save his precious
time and money for the victims of medical negligence cases who often are
persons from weaker and downtrodden sections of the society. Secondly, it would
be beneficial on part of the Medical Professionals as well. The court would
comprise of Expert Medical Professionals and they would be able to fully understand
the technical complications and intricacies related to a particular medical
case. Being panel members adjudicating claims of medical negligence will put an
added obligation to judge the cases on an impartial objective criterion as
compared to medical experts merely giving expert evidence in a court of law
where they might tend to give a favourable opinion for the fellow colleague
being proceeded against.
2. Need for Exemplary Damages:
Although, there have been cases recently which have even awarded damages to the
tune of Rs.1crore[37],
there still exists a need to award exemplary damages in certain cases. Private
Hospitals have been unduly using their bargaining power against the poor
patients. There is a need to setup more examples by awarding exemplary damages
so that Private Hospitals understand that no one is above law and stop
exploiting the destitute ones.
3. Frivolous Law Suits: This
is a major problem emerging in our country. Cheap gimmicks are being played by
the patients to gratify their personal rivalry by bringing out law suits
against the innocent doctors. It harasses the doctors to a great extent and
prevents them from working with a free mind. We already saw this in the case of
Mahadev Prasad Kaushik[38]
that how Section 304 of IPC was attracted towards a doctor. A balance needs to
be struck between the unreasonable demands of the patients and innocent claims
made by the doctors. One alternative could be to adopt the principle of Loser’s
Pay (One who loses the case pays the attorney fees for both the parties), but
this principle could prove to be very heavy on genuinely poor patients.
4. Differentiation between Medical
Negligence and Medical Error: The difference
between medical negligence and medical error is well- settled and the
principles are well-founded being clearly laid down in numerous cases by the
Supreme Court.[39]
Thus, there is a need to appreciate this differentiation by the society so that
doctors do not get indicted for impractical reasons.
5. FIR must not be accepted in case of
Medical Negligence: This is a
worrying problem for the courts as well as the doctors. It is very essential to
protect doctors against the rigors of criminal law, when frivolous criminal
complaints are made, in order to allow them to practice medicine with a free
mind without fear of the law. The Jacob
Mathews case[40]
said that extensive guidelines need to be given by the government in this
regard. However, it has been more than 5 years since the judgment and still
there is no word from the government regarding such guidelines. This issue
needs immediate attention of the government as Judiciary has already performed
its part of the duty by asking the government to frame such guidelines and can
do no more owing to the judicial restraint judges must exercise.
Conclusion
The concept of medical negligence as we have seen is simply one the
principle of which is deeply engrained in Tort Law. The test evolved over time
which has come to be known as Bolam’s test is widely applied across
various jurisdictions but as noted it does suffer from an infirmity which is
yet to be cured. The doctor-patient relationship is a fiduciary relationship
governed by high standards of morals and ethics. Though a breach of patient
confidentiality is usually seen to be a case of professional misconduct on the
part of the doctor, violating the patient’s body without consent has in
numerous cases been taken to be medical negligence and even as a crime of
assault on the patient.
The present legal position in regard to Criminal Liability of a doctor
is that it cannot be fixed upon the doctor unless there is a prima facie of
gross negligence and recklessness. However, if an FIR has been lodged to this
effect against the doctor, it is imperative on part of the magistrate to take
cognizance of the matter and whether a prima facie exists or not, is a question
to be decided by him and him alone as we say in the earlier cases. Another
appropriate remedy is available under The Consumer Protection Act, 1986. We
have seen that the Consumer Forums have included medical services under the
ambit of Section 2(1)(o) of the Consumer protection Act,1986 which defines
“service”. Thus, any deficiency in these services is construed to be a part of
medical negligence as has been explained earlier.
On the basis of the interpretation of the judicial decisions of the
apex court certain suggestions have been provided which can, if implemented
effectively, go a long way in helping courts crystallize the law on medical
negligence which at the present is faced with many obstacles and has seen
frequent deadlocks in several cases.
[1] Venkatesh Iyer v. Bombay Hospital
Trust, 1978 (2) TAC 820 (Bom).
[2] AIR 1996 SC 550
[3] Poonam Verma v. Ashvini Patel
& ors., (AIR 1996 SC 2111).
[4] (1957) 2 AII ER 118
[5] Guidelines given by the Supreme
Court in Martin F. D’Souza v.
Mohd Ishfaq (Civil Appeal no. 3541/2002 decided on 17th
February 2009).
[6] Ibid
[7] Suresh Gupta vs Govt. of NCT of Delhi and Anr., (2004) 6 SCC
422.
[8] Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1
[9] AIR 2005 SC 3280.
[10] Fordham, M, The Bolam Test Lives On, Sing. J. Legal Stud. 140 (1998).
[11] Amirthalingam, K, Judging Doctors and Diagnosing the Law:
Bolam Rules in Singapore and Malaysia, Sing. J. Legal Stud. 125 (2003).
[12] [1957] 1 WLR 583
[13] Maynard v. West Midlands
Regional Health Authority, [1985] 1 All ER 635
[14] Tarasoff v. Regents of
University of California, Cal S Ct 1976.
[15] Mr. ‘X’ v. Hospital ‘Z’,
1999 CTJ Supreme Court (CP).
[16] The Indian Medical Council
(professional conduct, etiquette and ethics) Regulations, 2002, regulation 7.16
requires that: “7.16: Before performing an operation the physician should
obtain in writing the consent from the husband or wife, parent or guardian in
the case of minor, or the patient himself as the case may be. In an operation
which may result in sterility the consent of both husband and wife is needed.”
[17] See Chatterton v. Gerson [1981] 1
All E.R. 257 and Samira Kohli v.
Dr. Prabha Manchanda (2008) 2 SCC 1.
[18] [1985] 3 All E. R. 402.
[19] Ibid.
[20] Supra note 15.
[21] 2010
(10) UJ 4872 (SC)
[22] AIR
2010 SC 1052
[23]
"Services" means service of any description which is
made available to potential [users and includes, but not limited to, the provision of]
facilities in connection with banking, Financing insurance, transport,
processing, supply of electrical or other energy, board or lodging or both, [housing
construction] entertainment, amusement or the purveying of news or other
information, but does not include the rendering of any service free of charge
or under a contract of personal service
[24]
"Deficiency" means any fault, imperfection, shortcoming
or inadequacy in the quality, nature and manner of performance which is
required to be maintained by or under any law for the time being in force or
has been undertaken to be performed by a person in pursuance of a contract or
otherwise in relation to any service.
[25] V. Kishan Rao v. Nikhil Super Specialty Hospital, (2010) 5 SCC 513
[26] PGIMER, Chandigarh v. Jaspal Singh & Ors., (2009) 7 SCC 330
[27] Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Ors.,
(2009) 6 SCC 1
[28] Martin F. D'Souza v.Mohd. Ishfaq
(AIR 2009 SC 2049)
[29] Samira Kohli v. Dr. Prabha Manchanda and Anr., (2008) 2 SCC 1
[30] Section 304A of the Indian Penal Code,
1860- Causing death by negligence.-- Whoever causes the death of any person by
doing any rash or negligent act not amounting to culpable homicide shall be
punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both.
[31] Suresh Gupta vs Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422
[32] Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1
[33] Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., (2009) 9 SCC 221
[34] B. Jagdish and Anr. v. State of A.P. and Anr., (2009) 1 SCC 681
[35] AIR
2009 SC 125
[36] V. Kishan Rao v. Nikhil Super Specialty Hospital, (2010) 5 SCC 513
[37] Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Ors.,
(2009) 6 SCC 1
[38] Mahadev Prasad Kaushik v.
State of U.P. and Anr., AIR 2009 SC 125
[39] Ms. Ins. Malhotra v. Dr. A. Kriplani and Ors., (2009) 4 SCC 705
[40] Jacob Mathew v. State of Punjab, (2005) 6 SCC 1
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