The medical profession has always enjoyed status next to God in the eyes of the society since long. This is the reason that many people unthinkingly accept whatever the doctor suggests. Though the relationship between doctor and patient is based upon concrete foundation of trust and confidence but it is getting weaker day by day. There have been professionals carrying on their duties unethically in various professions in the public life. They carry on their illegal activities with impunity without the fear of loss of prestige or status. It is observed through various authorities that certain doctors practicing unethically may not break the letter of the law but, by violating its spirit, they commit crimes which are not only anti-social but also injurious to public health.
In a country committed to the rule of law, such matters are taken to the court and judges are supposed to decide. However, medical negligence is difficult to be determined by judges as they are not trained in medical science and do not have domain expertise. Their decisions are based on expert opinion. Judges apply the basic principles of law in conjunction with the law of the land to arrive at a decision. Reasonableness and prudence are the guiding factors.
The Consumer Protection Act, 1986 is promulgated with the object to provide speedy remedy to consumers and save them from dilatory legal process. A consumer takes service from others on payment. Services rendered free of charge and under a contract of personal services are not covered under Consumer Protection Act. The administration of the Act is governed under rules framed and all standing orders of the National Consumer Disputes Redressal Commission and State Consumer Disputes Redressal Commission and legal precedent of all Hon’ble High Courts and Hon’ble Supreme Court.
According to present legal position, a medical practitioner is not liable to be held negligent in performing duties simply because something went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. A medical practitioner would be liable only where the medical practitioner’s conduct falls below that of the standards of a reasonably competent practitioner in the field. For instance, a medical practitioner would be liable, if the medical practitioner leaves surgical gauze inside the patient after an operation. There may be few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the medical practitioner be liable? In such situation the medical practitioner should not be held liable.
Medical Negligence or professional negligence relates to the irregular conduct of the doctors in discharging his/her professional duties. Duly qualified medical professional, i.e. doctor has a right to practice medicine, surgery and dentistry by registering with the Medical council of the State in which the medical practitioner resides. The State Medical council has the power to warn, refuse to register/remove from register the name of the medical practitioner who has been sentenced guilty by any court for any non- bailable offence or found to be guilty of professional misconduct which may be brought before the appropriate Medical Council of State/Medical Council of India. The appropriate Medical Councils are empowered to award such punishment it deems necessary or direct the removal of the name of the delinquent registered practitioner from the register either permanently or for a specific period if the medical practitioner has been found guilty of serious professional misconduct. No action against a medical practitioner can be taken unless an opportunity has been given to be heard in person or through an Advocate. Supreme Court in its landmark judgment in Indian Medical Association v V.P. Shantha & Others[i] held that the term ‘Medical Negligence’ is a term that explains culpable carelessness in the field of Medical Science and settled the legal position on the question of applicability of The Consumer Protection Act, 1986 to medical professionals, and hospitals/nursing homes, including government hospitals and charitable hospitals. The Hon’ble Apex Court has, inter alia, held that service rendered by medical practitioner rendering services by way of consultation, diagnosis and treatment, both medical and surgical, would be come within the ambit of The Consumer Protection Act, 1986. It has also held that services rendered by doctor / hospital free of charges would not fall within the ambit of The Consumer Protection Act provided such service is rendered free of cost to everybody.
NEGLIGENCE UNDER CONSUMER PROTECTION ACT, 1986.
In Dr. Ravinder Guptha v. Ganga Devi[ii], it has been observed that before the enforcement of The Consumer Protection Act, 1986, the field of medical negligence was governed by the law of Torts only. Medical Liability under the consumer jurisdiction includes what is negligence in the law of Torts. A medical practitioner can be held liable if the diagnosis is wrong so as to prove negligence, if the mistake is of such nature by absence of reasonable skill and care on the part of the medical practitioner, to the ordinary level of skill in the profession. Similarly, a Physician prescribing drugs with dangerous side effects without informing the patient about the risk and the side effects and without carrying out the recommended tests in order to discover whether side effects may happen is guilty of carelessness in exposing the patient to the risk of suffering from those side effects of the drugs. “Negligence means the headless or careless conduct, whether in omission or commission, it probably connotes the complex concept of duty, breach and damages thereby suffered by the person to whom the duty was owing.”
Medical practitioners are held liable under the prevailing laws such as Indian Penal Code, 1860, Law of Torts, The Consumer Protection Act, 1986, Indian Contract Act, 1872, and other specific Legislations. Civil liability arises in case of medical service rendered on payment of fee, under the Indian Contract Act. Under the Law of Torts civil responsibility is upon the doctors of all categories irrespective of the question whether they render the service without fees as charity. The Medical Council is empowered to direct the removal of the name of any person enrolled, in a State Medical Register on the grounds of professional misconduct.
The Supreme Court of India in its landmark judgment in Indian Medical Association vs. V.P. Shanta affirmed that the services rendered to a patient, both medical and surgical, are covered under The Consumer protection Act, 1986. Thus the entire medical profession has come under the purview of the The Consumer protection Act, 1986. It further enunciated definite principles that Medical Practitioners, Government Hospitals, Private Hospitals and Nursing Homes are also covered under the consumer law in the subsequent categories, 1) Where services are rendered free of charge to everybody availing of the said service, 2) Where charges are required to be paid by persons availing of services, but certain categories of persons who cannot afford to pay are rendered service free of charge. 3) Where charges are required to be paid by persons availing of services, but certain categories of persons who cannot afford to pay are rendered service free of charge. The Hon’ble Apex Court had defined, and elaborately discussed the two allegedly controversial terms i.e. ‘contract for service’ and ‘contract of services’ in this case and had observed. A ‘contract for service’[iii] implies a contract whereby one party undertakes to render services, professional or technical to one or for another in the performance of which that party is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion.
REMEDIES
A victim of medical negligence has the following remedies against the delinquent medical practitioner.
(1) Remedy in civil law (contract/tort): Under ordinary civil law the aggrieved person has a remedy under law of contract and tort against medical practitioners committing acts of medical negligence. He can approach a civil court by filing a civil suit under law of contracts or of torts. Liability in contract depends upon the express or implied terms agreed upon by the patient and the medical practitioner. While tortious duties of medical practitioner are limited to taking reasonable care, the contractual duties are generally more onerous in nature. The same act may amount to a tort and a breach of contract as well.
(2) Remedy under criminal law: A complaint can be made against the medical practitioner under Section 340 A of the Indian Penal Code, 1860 for causing the death of any person by doing any rash or negligent act not amounting to culpable homicide. Under this provision a medical practitioner may be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Further a complaint can also be made against the medical practitioner under Section 336 and Section 337 of the Indian Penal Code, 1860 if an injury is caused by doing any act so rashly or negligently as to endanger human life, or the personal safety of the patient. Further Section 357 of the Code of Criminal Procedure, 1973 provides for award of compensation out of fine imposed and collected on conviction of an accused, this power is a modern constructive approach to crimes, that is a step forward in criminal justice system.
REMEDIES AGAINST THE STATE IN PUBLIC LAW
A victim of medical negligence of a medical practitioner practicing with an Government hospital also has a remedy against the state in public law domain as well. A writ petition lies under Article 32 and Article 226 of the Constitution of India against the State for enforcement of fundamental rights under Article 21 of the Constitution. In certain cases the Supreme Court and various High Courts have awarded compensation to the victims without directing them to approach civil courts, particularly when the right to life and liberty under Article 21 is violated.
REMEDIES BEFORE THE REGULATORY BODIES
A victim of medical negligence may also file a complaint against the delinquent doctor for professional misconduct before the Medical Council. The Medical Council has the disciplinary jurisdiction over the doctor under the relevant regulatory law, viz., the Indian Medical Council Act, 1956; the Dentists Act, 1948 etc. Incase of professional misconduct on the part of a medical practitioner a complaint can be lodged with the respective State Medical Council for initiating inquiry and act. Upon receipt of compliant an inquiry is conducted by following the due process of law. If a delinquent practitioner is found guilty then the State Medical Council shall award punishment as per the regulation. The complaint has to be decided with a period of 6 months and an appeal lies against the decision of the State Medical Council to the Medical Council of India.
REMEDIES UNDER THE CONSUMER PROTECTION ACT, 1986
In view of the settled law[iv] that professional service rendered by the medical practitioner for consideration is a ‘service’ within the meaning of the Consumer Protection Act, 1986, which is not amended and known as Consumer Protection Act, 2019 and therefore the patients/victims of medical negligence have an efficacious remedy to approach the Consumer Court constituted there under to seek compensation for deficiency in service.
If, after conducting the proceedings, the consumer forum is satisfied that any of the allegations contained in the complaint about the services is proved, it shall issue an order to the opposite party directing it, inter alia, to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party[v].
COMPENSATION
Compensation means thing given as recompense. The word ‘compensation’ is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical and mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act, 1986 now amended as Consumer Protection Act, 2019 empower the Consumer Disputes Redressal Agencies to redress any injustice suffered by the consumers.
The courts see that, by awarding compensation the victim is placed as far as possible in the same position financially as he was before the particular act of negligence, which caused injury or death. The object is to mitigate the hardship that has been caused. In case of death the basis of compensation to the dependents is loss of pecuniary benefits to the dependents.
It is to be noted there is a difference between ‘compensation’ and ‘damages’, though they have to be measured by the same rule. While compensation will be the just equivalent of loss to the victim, the damages may include a component of punishment in the shape of punitive damages. Now, the Consumer Forums are also competent to award punitive damages.[vi]
The article represents the personal views of the author.
[i]1995(3) Page 412; AIR 1996 SC p.550.
[ii] 1993(3)CPR255
[iii] P.V. Rama Raju – The Consumer Protection Act, 1986, Latest Edition 2003, S.Gogia&Company
sec.2(l)(o)of The Consumer Protection Act,l 986
[iv] Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550.
[v] Section 14 of the Consumer Protection Act, 1986.
[vi] Proviso to Section 14(1)(d) of the Consumer Protection Act, 1986 as inserted by Act 62 of 2002