In good olden days medical profession was considered as a noble profession. This is because the medical professionals were considered as equivalent to or next to god and their relation with patient is guided by compassion and altruism. The sole aim of medical profession was to cure and alleviate the sufferings of patients. Therefore, compared to many other profession, medical profession receives a high respect from the society and also certain immunities under law. It is believed that, being service oriented and without any profit motive whatever a medical professionals will perform during treatment is for the welfare of patients. Therefore, in olden times common law tradition provided an immunity to medical professionals and patients were not permitted to file a complaint against a medical professional in connection with his service.
The changes in professional values and; developments in the medical science and technology; and the societal values have significantly damaged the value of doctor patient relationship. Here the term medical professional indicates not only doctors but also includes nursing staffs, paramedical staffs, pharmacist, and hospital administration as the case may be. There is change in the fiduciary relationship (i.e. based on trust) between medical professionals and patients. Whenever anything goes wrong while treatment on account of the act of doctors or other medical professional’s patients starts thinking about a legal recourse against it. So also there is an increase in malpractices among some of the medical professionals. All these has given rise to the development of law relating to medical negligence.
Medical Negligence
Negligence arises when a person fails to take adequate care and thereby causes an injury to another. It is the duty of every individual to take adequate care while doing an act, therefore any failure to take such care and thereby causes an injury to another, it is his responsibility to compensate the loss suffered by such inured person. Here unlike criminal law, the bad intention to cause injury is not necessary, therefore, even if the person does not intended to cause a harm or injury through his action, still he will be liable to indemnify the loss. In the words of Baron Alderson, ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do’.
Medical negligence arises when there is a failure on the part of medical professional to take adequate care and as a result it causes a harm or injury to the patient. It is to be noted here that, every treatment does not lead to success and every treatment dos not save the life of patient. Any failure in curing the disease or saving the life will not be treated as negligence on the part of medical professionals. In order to qualify an act of medical professional as medical negligence, it is essential to establish that: a) there was a legal duty on the part of alleged medical professional; b) this duty is towards the patient in dispute; c) there is a breach of that legal duty; and d) as a result of such breach of duty, the patient suffered an injury or the death occurred.
Legal Frameworks
The idea of imposing liability for medical negligence is not a new concept though it has developed in the last few centuries. One can find certain rules and principles dealing to medical negligence in the 4000 years old Code of Hammurabi developed by Babylon King Hammurabi. Similar instances can be found in ancient Hindu Vedic texts such as Charaka Samhita; Manusmriti; Arthashastra; Yajnavlkya’s Smriti; etc. Even other popular religious traditions such as in Islamic law, Christianity, Judaism, etc. also contains certain references which imposes an obligation to doctors to do no harm to the patients. Though very little legal obligations where there at that time in connection with medical negligence, one striking feature is that, the liability was criminal in nature rather than a civil obligation. In modern times, the legal framework dealing with medical negligence can be broadly classified in to three: a) Civil Law Framework; b) Criminal Law Framework; and c) Professional Misconduct.
Civil Law Frameworks
The civil law framework in India dealing with medical negligence includes actions under law of torts (i.e. Tort of medical negligence); actions under Consumer Protection Act (i.e. Deficiency in medical service); and actions under Indian Contract law (i.e. Breach of contract).
Tort of Medical Negligence Tort of medical negligence is a tort in which a medical professional (defendant) fails to take adequate care while providing his service to a patient (plaintiff) and which results injury to such patient. In other words an act or omission which causes a breach of duty to take care by a medical professional and thereby causes injury to a patient is termed as tort of medical negligence. In order to consider an act as tort of medical negligence the following ingredients has to be established; a) A legal duty to exercise due care; b) Duty must be owed by the Medical Professional; c) Breach of Duty; and d) Breach resulted in injury to the Patient.
In the case of Dr. L. B Joshi (1969), the Hon’ble Supreme Court of India has explained that, a medical professional has the following duties towards a patient such as: Duty of care in deciding whether to undertake the case; Duty of care in deciding what treatment to give; and Duty of care in the administration of that treatment. Therefore breach of any one of or all of these duties can be considered as a case of tort of medical negligence.
The moot problem in medical negligence cases is the determination of violation or breach of duty on the part of a medical professional. The popular Bolam test (1957) is considered as an effective principle for the determination of breach of duty on the part of medical professionals. According to this test, if a medical professional had adopted a practice that is considered as ‘proper’ by a reasonable body of medical professionals who are skilled in that particular field, the medical professional in question will not be held negligent only because it resulted in injury to the patient. In other words if the medical professional in question has exercised reasonable skill and care like any other medical professional of his field in the given circumstance, then whatever injury or harm caused to the patient is not to be considered as because of negligence on the part of such professional. In 1997, Bolitho test has developed for determining the breach of duty by medical professionals, in India the judiciary still favours the Bolam test.
The burden of proof for establishing breach of duty is always lies on the shoulder of patients. The principle of res ipsa loquitor (things speaks for itself) is an exception to this general rule. In cases where res ipsa loquitor the patient/ plaintiff will be excused from establishing the breach of duty on the part medical professionals. This principle applies in cases where the injury results only if there is a negligence, in such cases Court will presume there is a breach of duty on part of concerned medical professionals. Cases like forgetting mops, surgical instruments, scissors etc. in the stomach of patient during surgery are the best examples for the application of this principle.
It is to be noted that there are cases in which doctors or other medical professionals may be negligent in providing their service, but their negligence may not be the sole reason for the loss suffered by the patient. The patient may also contribute for the loss suffered by him. In such circumstances medical professionals will be liable only to the extent of loss occurred due to his negligence by the application of the principle of contributory negligence. The judiciary will determine the percentage of loss caused by the act of negligence of medical professional and will determine the liability accordingly. When there is a failure on the part of patient to give the doctor accurate medical history; failure to cooperate with his doctor in carrying out all reasonable and proper instruction; refusal to take the suggested treatment; leaving the hospital against the doctors advise; and failure to seek further medical assistance if symptoms persist, etc. are some of the common instances for the application of contributory negligence. Deficiency in Medical Service
Medical negligence can be considered as a deficiency in medical service under the Consumer Protection Act, 1986. Deficiency in relation to medical service means any fault, imperfection shortcoming or inadequacy in the quality, nature and manner of performance of which is required to be maintained by or under any law for time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to medical service. Therefore all the medical negligence cases can be brought under the definition of deficiency in medical service and patient can claim remedy under Consumer Protection Act. It is to be noted here both medical negligence and deficiency in service are used interchangeably for indicating the same thing, yet there is a difference between these two terminologies. To constitute a deficiency in medical service, a simple breach of duty with or without injury is sufficient, if the breach results in damage, then such deficiency would amount to tort of medical negligence also.
The application of Consumer Protection Act in cases of medical negligence had a long disputed history. First of all the question was whether a patient can be treated as a consumer under the Consumer Protection Act. This question was finally settled affirmatively by National Consumer Commission in the case of Vasantha P. Nair (1992). The next dispute was with respect to inclusion of medical service under the purview of the Act. The Consumer Protection Act, 1986 provides a wide definition for the term ‘service’, however it failed to mention the medical service. This issue was finally affirmatively settled by Hon’ble Supreme Court in the case of V. P. Shantha (1996). One important thing to be noted here that the new Consumer Protection Act, 2019, also failed to provide a specific mentioning about medical service under the definition of ‘service’ in the Act. Since the new Act follows the philosophy and the provisions related to service and deficiency of 1986 Act, the above mentioned judicial settlements hopefully will apply under the new Act.
Breach of Contract
A medical professional when accepts a patient to provide treatment, there arise a contractual relationship between such professional and the patient. Therefore, when a medical negligence occurs, the patient can consider it as a breach of contract and claim remedies for breach of contract under the Indian Contract Act, 1872. However, considering the long delay and other ancillary expenses patients are generally reluctant to prefer a case under this head. Considering the need for urgent disposal and inexpensive nature, patients are more in favour of a complaint under CPA in cases of medical negligence. Sometimes patients will prefer both tort of medical negligence and deficiency in service actions together. However, after the introduction CPA, 2019, in the absence of a clause talking about application of other laws in relation to consumer disputes, how far filing of actions under both tort and CPA for the same negligence is doubtful. In all these civil law frameworks, in cases where there is a medical negligence, the medical professional is liable to compensate the loss suffered by the patient. While determining the compensation amount the concerned court will take into account both physical injury and mental injury suffered by the patient, wherein the court will count both economic as well as non-economic loss incurred by the patient. In the case of Dr. Kunal Saha (2013), Supreme Court has granted 5.96 crore rupees as compensation, which is the highest ever compensation awarded in a medical negligence case in India
Criminal Law Framework
In India, the criminal law framework dealing with negligent acts of medical professionals are covered under Indian Penal Code, 1860. It provides four specific offences which are directly dealing with the act of negligence on the part of medical professionals. They are Section 336, 337, 338 and Section 304A. As per Section 336 whenever a medical professional does any act so rashly or negligently so as to endanger life of patient or the personal safety of patients it will amount to an offence. Such medical professional shall be punished with imprisonment up to 3 months or a fine up to 200 rupees or with both.
When the medical professional causes hurt to any patient by doing any act so rashly or negligently as to endanger life of patient or the personal safety of patients, it will amount to an offence under Section 337 and he shall be punished with imprisonment up to 6 months or a fine up to rupees 500 or with both. If the negligent act of a medical professional causes grievous hurt to the patient it would be considered as an offence under Section 338 of IPC and he shall be punished with imprisonment up to 2 years or a fine up to rupees 1000 or with both. In case patient dies due to the negligent act of medical professional it would be an offence under Section 304A and he shall be punished with imprisonment up to 2 years or a fine or with both.
It is to be noted here that, for the conviction of a medical professional for an alleged criminal offence, the standard should be a proof of recklessness and deliberate wrong doing. Therefore, to convict, a medical professional, the prosecution has to come out with a case of high degree of negligence on the part of such professional. Therefore a mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Indian judiciary has clearly laid in number of cases that while imposing criminal negligence and its liability to a medical professional, there should be a proof of high degree of negligence or recklessness. The Court has also laid down several guidelines to deal with criminal medical negligence cases against medical professionals in cases like Dr. Suresh Guptha (2004) and Jacob Mathew (2005).
Professional Misconduct
The commission of negligence by medical professionals would amounts to a professional misconduct on the part of medical professionals as per the Medical Code of Ethics, 2002 adopted by Medical Council of India. If the negligence is successfully established on part of a doctor, then the disciplinary committee can either issue a warning, suspension from the registered list or dismiss form the said list.
Liability of Hospitals and State Governments
Generally a question arises in most of the medical negligence cases is that the liability of hospitals for the negligence committed by their doctors and other medical staffs. In number of cases like Ms Neha Kumari (2003); Savita Garg (2004); etc., the Indian judiciary has categorically established that the Hospitals are vicariously liable for the negligence of their doctors and other staffs. Also in cases like V. Krishnakumar (2015); Savitri Devi (2019); etc., the State Governments were also held vicariously responsible for the medical negligence’s occurred in Government hospitals.
A review of all these shows that, in India, for the protection of rights of patients in cases of medical negligence, there is a well-established legal framework. By understanding the pros and corns of these frameworks the patient can take action against medical negligence cases. It is to be noted here that, though there is a wellestablished legal framework for dealing with medical negligence cases, it is not a Damocles sword hanging on medical professionals. Medical professionals are free to continue with their solemn duty of curing the diseases and alleviating the suffering of patients. However, they are supposed to take adequate and reasonable care while providing their service. Compared to many other developed nations health care system in India is at its top most position, this is due to our learned medical professionals also. So one can reasonably expect the cases of medical negligence will decrease tremendously in future.
Dr. Aneesh Pillai, School of Legal Studies Cochin University of Science and Technology.