Case of Medical Negligence: “How the Judiciary can punish a lifesaver”

October 24, 2020

Negligence can simply be defined as failure to exercise due care. The three ingredients of negligence are:

The defendant owes a duty of care towards the plaintiff.
There is a breach of this duty by the defendant.
Injury has been suffered by the plaintiff due to this breach.

The term ‘medical negligence’ refers to the wrongful actions or omissions of professionals in the field of medicine, in the pursuit of their profession, in the course of dealing with patients. The term ‘medical negligence’ has not been defined in any of the statutes or enacted Indian laws.

Doctor-patient relationship:

A doctor has a legal duty towards his patients- of providing service in return for money. A contractual doctor-patient relationship is established when the patient approaches the doctor for medical examination, diagnosis, opinion, advice, etc. and the doctor undertakes to provide these. Such a relationship is sacrosanct and it guards the interest of the patient; while the doctor assumes the whole responsibility of providing healthcare.

Now, if the doctor does not fulfil his responsibility and is negligent in performing his duty towards his patient, a case of medical negligence arises.

Liability in case of medical negligence:

The person who commits the wrong and causes injury to the other party is liable under three heads:

Civil liability
Criminal liability
Disciplinary action

Civil liability means monetary compensation in the form of damages. An action on the erring medical professional can be brought about by the dependants of the deceased patient or by the patient himself, in case he is alive, to seek monetary compensation. Permanent Lok Adalats can also be approached for seeking relief, as they have been conferred the powers of a Civil Court in certain specified matters.

Criminal liability can be imposed pursuant to the provisions of the Indian Penal Code, 1860. Although there is no specific provision under IPC that deals with medical negligence, but an action can brought against the offender under Section 304A of Indian Penal Code, which deals with ‘causing death by negligence’. Similarly, some other provisions of IPC that can be invoked are Section 337 (causing hurt by an act endangering life or personal safety of others) or Section 338 (causing grievous hurt by an act endangering life or personal safety of others).

Disciplinary action in the form of penalties can also be imposed for professional misconduct by medical practitioners. This is governed by Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 made under the Indian Medical Council Act, 1956.However, professional misconduct is a broad term, which may or may not include medical negligence under its ambit.

It is also possible that both civil and criminal law can run side by side in certain situations. The two remedies are not mutually exclusive, but are co-extensive. While the object of criminal law is to punish the offender; civil law aims to provide compensation to the victim.

Standard of care:

A medical practitioner or doctor has a duty of care in:

deciding whether to undertake that specific case or not
taking the appropriate decision as to what kind of treatment is to be given
the administration of that treatment
not to undertake any kind of procedure which may be beyond his control, etc.

It is expected from a medical practitioner that he ought to bring forth a reasonable degree of skill as well as knowledge and shall exercise a reasonable degree of care.

Negligence, in simple words, is a breach of duty of care which results in injury or damage. The causal relationship between ‘breach’ and ‘injury’ must be either “direct” or “proximate”.

There is a very thin line of difference between civil and criminal liability, and there is no criteria that has been developed by the Apex Court yet to provide any specific guidance regarding the same.

In Dr. Suresh Gupta v. Govt. of NCT of Delhi [(2004) 6 SCC 422], it was held by a two judge bench of the Supreme Court that in order to fasten criminal liability, the medical negligence should be “gross” or “reckless”. A person cannot be held criminally liable for mere lack of necessary care, attention or skill. However, a want of a certain degree of care might create a civil liability.

In Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], a three judge bench of the Supreme Court endorsed the approach of the Supreme Court in the earlier decision of Dr. Suresh Gupta, and held that for fastening the liability of criminal rashness or criminal negligence, the rashness must have been of such a degree as to amount to taking a hazard knowing very well that the hazard was of such a degree that the injury so inflicted was most likely imminent. Hence, even in this case, the doctors could not be criminally prosecuted.

It has been held by the courts that in medical negligence cases, Bolam test is to be applied- “standard of the ordinary skilled man exercising and professing to have that special skill”and not of “the highest expert skill”. This test is applicable in both “diagnosis” and “treatment”. But now the Apex Court has observed that there is a need to reconsider the parameters that have been laid down in the Bolam test.

Guidelines of the Supreme Court:

Since the nature of work performed by a doctor or medical practitioner is one that involve public service, hence it is imperative that certain guidelines be issued in this regard:

The Government of India and the Medical Council of India should formulate specific rules and regulations to regulate the aspects negligence in medical profession. During the pendency of this exercise, the following guidelines are to be followed while prosecuting medical practitioners.
In order to make a case against a doctor, a private complainant is supposed to submit evidence of a prima facie case before the authority and take cognizance of the act. Such authority must include credible opinion which has been given by another competent doctor to support his case.
The investigating officer is supposed to obtain an impartial as well as unbiased opinion of a doctor who practices in the same field in the same regard.
The concerned doctor is not to be arrested like in a regular prosecution. He may be arrested in case there is fear of intentional non-availability of the doctor for investigation.

Evolution of laws governing medical practice in India:

For cases regarding medical negligence, not only civil cases are filed, but many complaints with respect to ‘deficiency in service’ are also filed under the Consumer Protection Act, 1986. Many criminal complaints are also filed against doctors alleging that they have committed offences punishable under Section 304A, 336,337,338 of Indian Penal Code, 1860 alleging medical negligence committed by doctors resulting in loss of life or injury of different degrees to the patient.

Due to all this, there is a rising feeling of distrust as well as fear amongst medical professionals, due to which they are unable to perform their duties properly. The need of the hour is therefore, to provide them with enough legal assurance, ensuring protection from unnecessary and arbitrary complaints.

The remedies that are available to a person who is seeking redressal for medical malpractice are:

Suit for damages under Civil Procedure Code
Complaint for negligence under Criminal Procedure Code
Redressal under the Consumer Protection Act
Disciplinary action by the Medical Council of India

The most significant changes in the laws that govern medical negligence was the introduction of the Consumer Protection Act in 1986. Under this Act, the patients have been treated as consumers of medical services. The landmark judgment of the Supreme Court in Laxman Thamappa Kotgiri v. G.M. Central Railway and Others [(2007) 4 SCC 596] has given the rights of consumers to the railway employees while they are receiving treatment in a railway hospital free of cost.

The Constitution of India and right to health care:

Article 21of the Indian Constitution guarantees protection of life and personal liberty to every Indian citizen. It has been held by the Supreme Court that the right to live with human dignity, enshrined in Article 21, has been derived from the Directive Principles of State Policy, and hence includes ‘protection of health’ [Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802)].

It has also been further held that right to health is an integral part of right to life and the government is constitutionally obliged to provide health facilities to its citizens. [State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83].

Extended scope of medical negligence:

The Supreme Court of India as well as the National Commission has held in various decisions that the doctor is not liable for negligence because of someone else who has a better skill or knowledge and who would have prescribed a different treatment or operated in a different way. As long as he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals, he will not be held guilty for negligence.

In a landmark decision, Indian Medical Association v. V.P. Shantha and Others III (1995) CPJ 1 (SC), the Supreme Court has laid down specific guidelines for medical negligence and defined efficiency of consumer protection. It has held some exceptions- for instance,

Services that have been rendered to a patient (free of cost) by a medical professional would not fall under the definition of ‘service’ under the Consumer Protection Act, 1986.
Services that have been rendered by a doctor under a contract of personal service would not be covered under the Consumer Protection Act, 1986.

Similarly, in a few landmark decisions of the National Commission, dealing with cases involving hospital death, the National Commission has rightly recognised the possibility of hospital death despite there being no negligence.

Conclusion:

Nowadays, there are so many instances of exploitative medical practices, misuse of diagnostic procedures, deals for sale of human organs, etc. by the doctors. The medical profession, that was once considered to be one of the noblest professions, has now been plagued by unethical practices and profit motives.

However, it has also been seen that cases may arise wherein the doctors are intentionally put under uncomfortable situations wherein they are forced to resort to unethical measures and go against the sanctity of their professional ethics. Hence, to prove that there has been a case of medical negligence, four D’s have to be proved first- duty of care of the doctor, dereliction of duty, direct causation of injury by negligence and damages sustained by the patient or his family members.

The Supreme Court has also come to the rescue of doctors and has laid down specific guidelines that will go a long way in providing a sense of comfort and trust to the medical professionals in order that they perform their duties with utmost dedication and without fear.

“The views of the authors are personal“

Frequently Asked Questions

What is the meaning of medical negligence?

Negligence can simply be defined as failure to exercise due care. The three ingredients of negligence are:

The defendant owes a duty of care towards the plaintiff.
There is a breach of this duty by the defendant.
Injury has been suffered by the plaintiff due to this breach.

What is the general standard of care to be adopted by medical professionals?

A medical practitioner or doctor has a duty of care in:

deciding whether to undertake that specific case or not
taking the appropriate decision as to what kind of treatment is to be given
the administration of that treatment
not to undertake any kind of procedure which may be beyond his control, etc.

It is expected from a medical practitioner that he ought to bring forth a reasonable degree of skill as well as knowledge and shall exercise a reasonable degree of care.

Has the Supreme Court issued any guidelines for the protection of medical professionals with respect to cases involving medical negligence?

Since the nature of work performed by a doctor or medical practitioner is one that involve public service, hence it is imperative that certain guidelines be issued in this regard:

The Government of India and the Medical Council of India should formulate specific rules and regulations to regulate the aspects negligence in medical profession. During the pendency of this exercise, the following guidelines are to be followed while prosecuting medical practitioners.
In order to make a case against a doctor, a private complainant is supposed to submit evidence of a prima facie case before the authority and take cognizance of the act. Such authority must include credible opinion which has been given by another competent doctor to support his case.
The investigating officer is supposed to obtain an impartial as well as unbiased opinion of a doctor who practices in the same field in the same regard.
The concerned doctor is not to be arrested like in a regular prosecution. He may be arrested in case there is fear of intentional non-availability of the doctor for investigation.

What are the laws applicable for medical negligence?

For cases regarding medical negligence, not only civil cases are filed, but many complaints with respect to ‘deficiency in service’ are also filed under the Consumer Protection Act, 1986. Many criminal complaints are also filed against doctors alleging that they have committed offences punishable under Section 304A, 336, 337, 338 of Indian Penal Code, 1860 alleging medical negligence committed by doctors resulting in loss of life or injury of different degrees to the patient.

The remedies that are available to a person who is seeking redressal for medical malpractice are:

Suit for damages under Civil Procedure Code
Complaint for negligence under Criminal Procedure Code
Redressal under the Consumer Protection Act
Disciplinary action by the Medical Council of India

The most significant changes in the laws that govern medical negligence was the introduction of the Consumer Protection Act in 1986. Under this Act, the patients have been treated as consumers of medical services. The landmark judgment of the Supreme Court in Laxman Thamappa Kotgiri v. G.M.Central Railway and Others has given the rights of consumers to the railway employees while they are receiving treatment in a railway hospital free of cost.

What is the relevance of the Constitutional provisions with respect to medical negligence?

Article 21of the Indian Constitution guarantees protection of life and personal liberty to every Indian citizen. It has been held by the Supreme Court that the right to live with human dignity, enshrined in Article 21, has been derived from the Directive Principles of State Policy, and hence includes ‘protection of health’. It has also been further held that right to health is an integral part of right to life and the government is constitutionally obliged to provide health facilities to its citizens.

What is the scope of medical negligence?

The Supreme Court of India as well as the National Commission have held in various decisions that the doctor is not liable for negligence because of someone else who has a better skill or knowledge and who would have prescribed a different treatment or operated in a different way. As long as he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals, he will not be held guilty for negligence.

In a landmark decision, Indian Medical Association v. V.P.Shantha and Others III, the Supreme Court has laid down specific guidelines for medical negligence and defined efficiency of consumer protection. It has held some exceptions- for instance,

Services that have been rendered to a patient (free of cost) by a medical professional would not fall under the definition of ‘service’ under the Consumer Protection Act, 1986.
Services that have been rendered by a doctor under a contract of personal service would not be covered under the Consumer Protection Act, 1986.