This Article written by Manasvita Tejsi, a student of Rajiv Gandhi National Law University.
Medical Negligence refers to a careless or rash act by a medical practitioner in lieu of the treatment of a patient wherein there is harm or injury caused to the patient. There is no law or act which gives an extensive detailed remedy for medical negligence particularly; but the Indian Penal Code and the Consumer Protection Act, 1986 do give an outline of the same. It is not evident but it can be interpreted. Amidst the recent events such as the COVID 19 pandemic, there is a quintessential need for a separate act which provides for remedies for medical negligence.
ESSENTIALS OF MEDICAL NEGLIGENCE
- Existence of a legal duty
There should be a legal duty of the doctor or the medical practitioner to exist before suing them. If there is no legal duty, there is no case. The contractual relationship that Consumer Protection Act, 1986 extends that doctors have with patients, should be there. If this does not exist then the patient cannot sue. He should have gone to the medical practitioner for the treatment and formed a contractual relationship with them.
- Breach of a legal duty
It is well accepted that in the cases of gross medical negligence the principle of res ipsaloquitur is to be applied. The said principle is intended to assist the plaintiff. Res Ipsa loquitur means things speaks for itself; while deciding the liability of the doctor it has to be well established that the negligence pointed out should be a breach in due care which an ordinary practitioner would have kept. A doctor cannot ensure that no harm shall come to the patient, inability to cure the patient would not amount to negligence but carelessness and negligence in the treatment will amount to the same.
- Damage caused by the breach
There should be harm suffered by the plaintiff in the case. The harm should be more than the already existing problem of the patient. The medical practitioner should have done something that would have made the problem worse or something that would have started a new issue. Damage is important to show in order to get compensation. If there is no damage done, there is no harm, there will be no compensation.
CONSUMER PROTECTTION ACT, 1986
The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matter connected therewith.
Under this comes the Medical Negligence part. Section2(1)(o) of Consumer Protection Act, 1986, which defines ‘service’ as,
“Service of any description which is made available to potential users and includes the provision of facilities in the 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.”
So medical negligence comes under the ambit of service. The ambit of ‘service’ was not defined at first. After the case Indian Medical Association v. V.P. Shantha, medical negligence came under the Consumer Protection Act, 1986. This case had a three-judge bench in the Supreme Court which pondered the important question whether and, if so, in what circumstances, a medical practitioner could be regarded as rendering ‘service’ under Section 2(1)(o) of the Consumer Protection Act, 1986 and whether the services rendered at the hospital/nursing home could also be regarded as ‘service’. It was held that the services of doctors can come under the ambit of ‘services’ in the Consumer Protection Act.
INDIAN PENAL CODE
In specific cases, carelessness is obtrusive to such an extent that it initiates criminal procedures. A medical practitioner can be booked under Section 304A of the Indian Penal Code (IPC) for causing demise by a rash or careless act, say for a situation where passing of a patient is caused during activity by a practitioner not qualified to work. Section 304A states,
“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.”
The act has to be negligent, careless and rash in nature. It would however either fail or lose its chance of winning if there is a mistake or negligence on the part of the patient as well. The doctor cannot be booked for homicide or murder unless the case seems so as there was no intention on the part of the doctor to kill or maim his patient. The punishment for the negligent act under criminal law is imprisonment or fine or both.
- Indian Medical AssociationV.P. Shantha& Others
A three-Judge Bench of Supreme Court held that service provided to a patient by a doctor by way of consultation, diagnosis and treatment, would fall within the ambit of ‘service’ as defined in Consumer Protection Act. This must be judged by prudence and applying the reasonability test. This built up the very fundamentals of Consumer Protection Act, 1986.
- P. Sreekumar MS (ortho) v. S. Ramanujam
This Court had an occasion to deal with the case of medical negligence in a case in which the patient was hit by a motor-cycle while going on his bicycle sustained a hairline fracture in the leg.After thorough examination of the patient the doctor could do two types of medical procedure on the patient. The doctor chose to do hemiarthroplasty; days later the patient filed a suit for medical negligence against the doctor for not choosing internal fixation procedure as a medical option. The fact to be noted here is, the respondent was told in advance about the two options and his full consent was given to the doctor.
- N. Shirkhandev. Anita Sena Fernandez
In this case, the Supreme Court had held that in cases of medical negligence, no straight-forward formula can be applied to determine whether negligence was committed or not; there has to prudence and reasonability applied to each case. Each case is to be decided on its own facts. If the effect of negligence is dormant, then the cause of action will arise on the date when the patient (complainant) discovers the injury which may have been caused due to negligent act of the doctor.
A doctor is responsible for protecting patients from risks that they can see or know about beforehand. In other words, they are responsible for protecting against foreseeable risks or dangers. The doctor may claim that the injury was an unforeseeable consequence of the medical treatment.
- Patient Caused or Contributed to the Injury
The doctor may claim that the injury was caused by the patient not following proper medical advice. For example, if the patient didn’t attend his appointment for something and later complains of something, it is his fault.
- Not a Recognized Risk
If the patient is told all the risks involved in the medical procedure beforehand and the patient is aware about the same, the doctor can be exempted from the same. The condition is the risk should have been communicated to the patient beforehand.
- Third Party
If the act was done by a third party wherein doctor was not responsible and nor negligent in his conduct, then the onus of medical negligence can be lifted.
- Pre-Existing Injury
The doctor may claim that the injury was caused by a previous illness or disease. For example, the doctor may claim that your disabling back pain was not the result of negligent surgery but due to pre-existing arthritis.
Medical Negligence is a budding field in litigation and torts. Patient health care is a very serious matter which should be dealt with in a very careful and effective manner. Also, medical negligence is not a part of criminal law at this stage but it might become at a later stage when medical practitioners may do gross or ‘aggravated’ negligence. This will become a bridge between torts and criminal and medical negligence will become an interdisciplinary subject. But this subject has a lot of scope for development.
- Amit Agrawal, Medical negligence: Indian legal perspective, 19 NCBI 9, (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109761/.
- Avani Sinha, Medical Negligence Legal Principles, Mondaq (Nov. 24, 2020, 10:00 AM), https://www.mondaq.com/india/professional-negligence/804010/medical-negligence-legal-principles.
- Consumer Protection Act, 19186, No. 68, Acts of Parliament, 1986 (India), http://chdslsa.gov.in/right_menu/act/pdf/consumer.pdf.
- Indian Penal Code, 1860, S. 304A, https://indiankanoon.org/doc/1371604/.
- Indian Medical Association vs. P. Shantha& Others; 1996 AIR 550, 1995 SCC (6) 651
- C.P.Sreekumar M.S (Ortho) vs S.Ramanujam on 1 May, 2009; CIVIL APPEAL NO.6168 OF 2008
- V.N. Shirkhandev. Anita Sena Fernandez; Civil Appeal No. 8983 Of 2010