Medical profession requires a high standard of care and skill on the part of a doctor. A breach of this duty gives a patient the right to initiate action against him…
Ever since medical professionals have been brought under the ambit of the Consumer Protection Act, 1986, there is a rise in the number of frivolous cases harming medical fraternity. In light of this, the Supreme Court (SC), in a recent case, has directed the consumer fora to first seek an expert opinion from a panel of doctors whether any prima facie case is made out against the doctor or not, and only thereafter send notice to the medical practitioner.
The SC has redefined medical negligence in Dr Kunal Saha’s case saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The SC extended the ambit of medical negligence cases to include overdose of medicines; not informing patients about the side effects of drugs; not taking extra care in case of diseases having high mortality rate and hospitals not providing fundamental amenities to the patients. The decision also says that the court should take into account patients’ legitimate expectations from the hospital or the concerned specialist doctor.
The persons, who offer medical advice and treatment, implicitly affirm that they have the skill and knowledge to do so, to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an ‘implied undertaking’ of a medical professional. Negligence on his part exposes him to liability under various branches of law.
Criminal liability arises under section 304A of the Indian Penal Code, 1860 (IPC), for causing the death of a person by rash or negligent act, not amounting to culpable homicide. The standard of negligence required to be proved in this case should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, and not merely the lack of necessary care.
CONSUMER PROTECTION ACT, 1986 The Consumer Protection Act, 1986, (the Act) brings doctors under the ambit of ‘service’. The SC held that medical services fall within the purview of the Act and medical practitioners, if found deficient in services, could be held accountable under the Act. However, government hospitals or charitable institutions, which render services free of charge, are not covered under it.
A patient can take recourse to the law of torts and can claim compensation for negligence where doctors provide their services with no or negligible consideration. The burden of proof is on the patient for establishing that the doctor acted negligently and that the injury was a direct consequence of that act.
We had been hearing about the growing menace of medical negligence in India. It hit closer home when my sister, Dr Nitika Manchanda lost her life for no apparent reason, without any suspected medical history. She had her baby delivered on May 3, 2009 at Max Hospital, Pitampura, Delhi and lost her life on May 5, 2009 after hours of complaining of abdominal pain. We filed a police complaint that very day and managed to get the photocopies of case-sheets. We studied those sheets, read text books, consulted doctors and realised that this unfortunate and untimely demise happened because of medical negligence and deficiency of services at Max.
I created a dedicated website, http://fightagainstmax.info to start a force against these business-houses known as hospitals, which do not care about people’s lives in their quest to mint money.
My agony is not over but rather increased after I decided to fight this. In a reply to my RTI application to the Directorate of Health Services, the said hospital blamed us for indulging in image-assassination with an aim to blackmail. I want to ask them, what do they think we get out of this? Would we ever get Nitika back, who left us all in the prime of her life just because the hospital and its doctors were negligent?
The case was referred to Delhi Medical Council (DMC) for their expert opinion and more than six months have passed since the unfortunate incident, the DMC has not taken any decision. If this is the pace at which we work, no wonder it takes 19 years (as in Ruchika’s case) for people in India to get their investigation taking shape.
What happens behind the scene? Why is the system so unfriendly? Why does it take ages to get the justice in India? Who will improve the system? These are the questions I struggle with, every night before going to sleep.
According to medical professionals, liability under various laws increases the number of frivolous suits against them since, at times, despite having taken all the necessary care and diligence, a patient dies or some unavoidable mishap happens. For that reason, it becomes imperative to know what conduct amounts to medical negligence and makes doctors amenable to litigation under the Act.
Negligence is about causing damage to another because of a failure to exercise reasonable care; it is doing something that a reasonable person in the class of persons to which the defendant belongs would not do; or not doing something that a reasonable person in that class would do. Dr O P Sharma, Chief Cardiac Surgeon, Batra Hospital, Delhi opines “Culpable negligence is when a patient needs your care and you are unable to deliver it on time. For example, you have explained well to the patient and his relatives about the disease, prognosis and its outcome and yet you are not able to involve people, who know better than you about a certain medical condition, this is medical negligence.
Sidarth Luthra Senior Advocate, Delhi
At present, the law is fairly clear on this. It has been crystallised in Jacob Mathew’s case and Shiv Lal’s case and other recent decisions in 2009, which set out the tests that have to be applied in cases pertaining to medical negligence. First of all, doctors have to take necessary safeguards. They have to comply with the requirements of the medical ethics, the rules and guidelines given by the Medical Council of India, which require that informed consent should be given to the patient before any medical procedure is applied. If doctors act in breach of these guidelines, there can be consequences of that under the law. Secondly, for criminal law to come into force, it has to be a case where a medical board has to say that it is a case of clear-cut negligence.
There are broadly two categories of negligence: one may be an error of judgment and then under the second category, there are cases, for example, where a doctor performs a sensitive surgery in an inebriated state, or is not qualified to perform the operation and does not take the necessary safeguards in terms of analysis, examination of the patient, or ends up removing the wrong organ. These are the cases which, according to me, fall into the realm of criminal law also, apart from attracting civil liability.
Under the Indian law, the doctors and the insurance companies are liable for negligence, if proved. However, I do not think that we can really make the State liable for this. In a developing country like India, where there are limited resources, a government-run fund will not be a sustained viable solution.
On compensation in India, by and large, there are standard parameters or multiplier system of calculation that we apply in a medical negligence claim. It is a standardised principle for all injury and accident cases, which even takes into account added factors like cost of the treatment and its consequences. I really do not think a cap is necessary because, for example, if there is a patient, who is left in a vegetative state as a result of a botched procedure and may require medical care for the rest of his life, then a cap of a pre-fixed amount will create a permanent problem. Though our prevalent system of compensation might seem conservative at times, yet it is an equitable one and it can always be appealed against in a higher judicial forum.
There is a problem of backlog of cases, which is not going to be solved overnight. The number of consumer courts has increased. Earlier in the National Commission, cumbersome procedure of recording evidence was followed till a few years ago. Then they decided to go back to the old system of affidavits except in absolutely necessary cases where they record evidence. All these are time-saving mechanisms, which will have an impact. However, when you apply the principles of time to a legal system, the results of such changes cannot be seen in a day or two but rather in at least five years, after which such policies should be reviewed, or modified or changed.
Tragically, at the heart of a lot of consumer claims, it is a failure of communication. Patients are not always aware or made aware of what expectations they should have from a medical procedure. A medical professional’s job is to treat, which may not necessarily cure. His duty is to provide the best-possible available treatment as accepted by international and national norms. Recently I came across a group of doctors who started giving feedback forms to patients after six months from the treatment, but unfortunately faced opposition from within the institution. This is a changing tide within the medical profession where doctors are being more communicative to their patients and receptive to their feedback. Even though, feedback is accompanied by harsh criticism at times, yet it can develop the best practice
“Culpable negligence is when a patient needs your care and you are unable to deliver it on time. For example, you have explained well to the patient and his relatives about the disease, prognosis and its outcome and yet you are not able to involve people, who know better than you about a certain medical condition, this is medical negligence.”
Like in my case, I know only about cardiology and if I need any help in nephrology and still I do not involve the specialist and other experts whose presence would make a big difference to the case and keep on treating the patient myself and if the patient dies, I will be liable to medical negligence. Do remember that human life is irreplaceable and you cannot say sorry to a dead man.”
In Bolam vs. Friern Hospital Management Committee, Hon’ble Justice McNair laid down the basic principle for deciding medical negligence. According to this, a man need not possess skills of an expert or specialist on the subject but the ordinary skill required by a competent man with regard to the task at hand is sufficient. The amount of care required is that of a prudent, careful or a diligent man.
Further, there may be one or more perfectly proper standards and if the doctor conforms to one of those proper standards, he is not negligent. The burden of proof is on the complainant, which is established by producing evidence from an expert, indicating the negligence. The essential components of negligence are thus, three: duty, breach and resulting damage.
In the Bolitho case, Lord Wilkinson observed that doctors should direct their minds to the question of comparative risks and benefits in order to reach a defensible conclusion on the matter in question. Bolitho test is far more logical, but Bolam test is still the benchmark which is used in India to gauge the liability or culpability of a doctor in negligence cases.
Section 80 of the IPC provides general exception when the alleged negligent act is done due to an accident or misfortune. Similarly, under sections 88, 89 and 92, an act done in good faith and with the consent of the patient and for the patient’s benefit, operates as a safety-valve for the doctors, even if it leads to death or disability of a patient.
The principle of necessity, by which the doctor is permitted to perform further or additional procedure (unauthorised), is restricted to cases where the patient is temporarily incompetent (being unconscious) to permit the procedure and delaying is not possible because of imminent danger to his life.
An error of judgment is excusable, as a doctor can not be made liable for negligence due to some mischance, misadventure, or for an error of judgment as in choosing one medicine over its alternative. The SC in Suresh Gupta (Dr) v. Govt. of NCT of Delhi case held that a doctor should not be held criminally liable when a patient’s death results from a physician’s error of judgment. The apex court quashed the charges at the very threshold itself without a retrial that seems anomalous since a precedent had already been set by the decision of the apex court in Mohanan v. Prabha G Nair & Another where Kerala High Court had substantially used the same reasoning, though in different words, which was found unsustainable by the apex court at that time.
Himanshi Manaktala Medical Student
It is said that whatever we do for ourselves, dies with us but if done for the world, it becomes immortal. In fact, this is what drives medical professionals to work day in and day out while serving mankind with a smile on their faces. Since God could not be everywhere therefore, he made mothers and doctors to help and heal his children in times of disease and ill health. However, unfortunately, when I read about doctors being dragged into the court for their negligence, I often wonder why something cannot be done for the safety of the patients in order to keep this esteemed profession away from legal embarrassment?
I was a little apprehensive before penning this write-up, until a few days back to this incident. I was sitting in the cafeteria of my college with some of the seniors. Suddenly an expected topper started sharing her feelings and fears with us. “You know, I am planning to be a Professor instead of practicing medicine,” she revealed.We were all shocked to hear this. Everyone knew that she would become a brilliant and wonderful Physician. Therefore, I asked impatiently, “Why is it so?”
“Don’t you see in the newspapers these days, how charges of medical negligence put up against doctors ruin their careers completely? These things actually scare me a lot,” she replied uneasily.
I would not have given it any heed at that point of time since everyone has his or her own point of view. However, when others in the group seemed to agree with her, only then I realised the prospective dire situation. I tried to console her saying that we are all human and it is quite humane to commit mistakes.
Her last words still ring in my ears and I am really saddened by the thought that how the field of medicine would lose such bright physicians just because of the fear of being trapped in the vicious circle of legal proceedings and how they might give up their dream to save innumerable lives just because of hurting someone unintentionally. It is the right time to take some initiatives to change such visions before the problem becomes bigger.
The system needs to be more practical and comprehensive, with an appropriate procedure to point out any haphazard as medical negligence. For instance, one should not legally sue a doctor for making a wrong diagnosis unless it is not proved as a gross mistake. Measures should be taken to create awareness among the medical community and the aspiring doctors through media to provide information about medical negligence and the duties of a doctor. Doctors, nurses, paramedics, and the technicians should be trained in such a way that they work together as a team for the safety of the patients. The experience of treatment and problems should be shared regularly and the results should be acknowledged for future reference. Also, culpable doctors should be punished severely and justice should be done to the suffering patients. There should be a provision of some insurance schemes for doctors to pay the fine.
It is important to punish guilty doctors and also to protect doctors who act in good faith from harassment. The courts must strike a perfect balance. It would be advisable for doctors to maintain files or records even for out-patients, and all documentation to be recorded therein. The prescriptions or summaries which are prepared during taking of history or diagnosis or treatment should be recorded in detail. While all this may lead to more paperwork and reduce the medical professional’s ‘dealing time’, in the long run, the benefits of the comprehensive case-history or treatment-records would deter vexatious, frivolous litigation, and claims.
On the other hand, to deter doctors to act negligently and hastily, courts should award high amounts of compensation. To set things right, the compensation should not only be commensurate to the physical loss incurred but the emotional turmoil as well. Recently, the SC has awarded an unprecedented compensation of Rs. 1 crore to a software engineer who suffered permanent disability due to the medical negligence. In Kunal Saha case, the apex court has directed the National Consumer Disputes Redressal Commission to determine the quantum of the highest ever compensation claimed in Indian medicolegal history. This included Rs. 77.7 crore (plus interest) and an additional fine of Rs. 5 lakh against the hospital plus Rs. 1 lakh against the main culprit, the doctor, as penalty for their misconduct that led to death of the patient.
Another way is to introduce a ‘No-Fault Insurance System’, wherein the claimant needs to show that the injury is a direct consequence of the medical error on the part of the doctor. It is undoubtedly true that the very nature of the medical profession makes it vulnerable to accidents. Under this system, losses are calculated through an inquisitorial tribunal which has access to all relevant documents and independent expert advice and this makes the process faster and more efficient than the adversarial system. Some of the countries that have introduced similar systems of insurance are New Zealand, Finland, Sweden, Norway and Denmark.
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