Rights of consumers vis-à-vis medical negligence and consumer protection act LAM PROJECT 9239253098165Submitted By

Rights of consumers vis-à-vis medical negligence and consumer protection act
LAM PROJECT

9239253098165Submitted By:
Sivakumar PGP34042
Soumya Gupta PGP34043
Suha Vignesh PGP34044
Sunil Dudi PGP34045
Surbhi Gupta PGP34046
020000Submitted By:
Sivakumar PGP34042
Soumya Gupta PGP34043
Suha Vignesh PGP34044
Sunil Dudi PGP34045
Surbhi Gupta PGP34046

INDEX
SERIAL NUMBER Chapter/Topic Page Number
1 Introduction 2 3 4 5 6 INTRODUCTION
It has been observed by the Supreme Court of India in Jacob Mathews Case that the service rendered by the medical professional to human beings is probably the noblest of all and hence there is need for protecting doctors from frivolous and unjust prosecution. Indiscriminate prosecution of medical professional for negligence is counter-productive and it does no service or good to the society. A medical practioner, faced with an emergency, ordinarily tries his best to redeem the patient out of his sufferings. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the patient to clearly make out the case of negligence before a medical practitioner is charged with or proceeded against criminally. Supreme Court further says, a surgeon with shaking hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose of medicine to his patient if his hands are trembling with the fear of facing a criminal prosecution. Discretion being the better part of valour, a medical practitioner would feel better advised to leave a terminal patient to his own fate in the case of an emergency where the chance of success may be bleak rather than taking the risk of making a last ditch effort towards saving the patient and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.

However, at the same it, it is also true that the medical profession has, to an extent, become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. Thus, there is a need to curb such a tendency and a doctor indulging in any such mal-practice or acting negligently need to be held accountable under Civil Law or Consumer Protection Act or under Criminal law depending upon the facts of the case.

NEGLIGENCE
PROFESSIONAL NEGLIGENCE: MEANING AND CONCEPT
Negligence is culpable carelessness – conduct which involves an unreasonably great risk of causing harm to another. Alderson B. defined negligence as 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. Negligence excludes wrongful intention since negligence and wrongful intent are mutually exclusive. The question in every case would be whether the medical practitioner in fact attained the degree of due care established by law.

Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. A breach of this duty gives a patient the right to initiate action against doctor for negligence.

MEDICAL MAL-PRACTICE
It is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient. Professional negligence or medical negligence may be defined as want of reasonable degree of care or skill or willful negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to bodily injury or to loss of life.

CRIMINAL MEDICAL NEGLIGENCE:
A doctor can be prosecuted for negligence under criminal law only if the hazard taken by the him was of such a nature that the injury which resulted was most likely iminent. To prosecute a medical professional for negligence under criminal law it must be shown that the doctor did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary sense and competence would have done or failed to do. Many a patients prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceeding has to be guarded against.

Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. According to Section 88, a person cannot be accused of an offence if he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.

STANDARD OF CARE:
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
The standard was laid down in Bolam’s case by McNair, J. It was stated that:
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill . . . A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
The Bolam test has been followed and approved by various subsequent judicial pronouncements and has continued to be well received.

STANDARD OF CARE APPLICABLE TO HOSPITALS:
The same standard of care is applicable to hospitals as to individual physicians with the difference that the basis of liability of hospitals is based on corporate liability. Also, the hospital will be responsible for acts of negligence of its staff. This applies equally to nursing staff and senior doctors who undertake treatment in the hospital.

ERROR OF JUDGEMENT; WHETHER NEGLIGENCE
The courts have held that no human being is infallible and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of diseased condition. The very nature of the profession is such that there may be more than one course of treatment for a patient and errors in the judgement are a common practice. As error of judgement doesn’t not of itself amount to negligence. Whether an error of judgement amount to negligence or not would depend on the nature of error.

ESSENTIALS
Doctor’s duty to attend the patient with care
Medicine is such a profession where a practitioner is supposed to have requisite knowledge and skill needed for the purpose and has a duty to exercise reasonable duty of care while dealing with the patient. The standard of the care depends upon the nature of the profession. A surgeon or anaesthetist will be determined by the standard of average practitioner in that field while in case of specialists, a higher skill is needed.
If the doctor or a specialist doesn’t attend a patient admitted in emergency or under his surveillance and the patient dies or becomes victim of consequences which could have been avoided with due care from the doctor, the doctor can be held liable under medical negligence. This was held in Sishir Rajan Saha v. The state of Tripura HYPERLINK “https://www.lawctopus.com/academike/medical-negligence/” l “_edn9” ix that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers, the doctor can be held liable to pay compensation to the patient. Moreover the liability of the doctor cannot be invoked now and then and he can’t be held liable just because something has gone wrong. For fastening the liability, very high degree of such negligence was required to be proved. HYPERLINK “https://www.lawctopus.com/academike/medical-negligence/” l “_edn10” x A doctor or a medical practitioner when attends to his patients, owes him the following duties of care:
A duty of care in deciding whether to undertake the case
A duty of care in deciding what treatment to give
A duty of care in the administration of the treatment
When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable cost. You expect the doctor to be knowledgeable about the latest advances in his field of specialty, and educate you about your diagnosis and prognosis, and explore the best possible solution to your health issue. In short, you expect to be healed. But for millions of people, what they expect is far from what they receive.

DUTIES OWED TO A PATIENT:
A duty of care in deciding whether to undertake the case,
A duty of care in deciding what treatment to give.
A duty of care in the administration of that treatment.
A breach of any of these duties gives a right of action for negligence to the patient.

LEGAL ASPECT:
The law does not aim to punish all acts of a doctor that caused injury to a patient. It is concerned only with negligent acts. Medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful practitioner would have committed. What is expected of a medical practitioner is ‘reasonably skilful behavior’ adopting the ‘ordinary skills’ and practices of the profession with ‘ordinary care’. If a medical practitioner has taken reasonable care, then he cannot be held liable. A mere difference in opinion, error of judgement, patient not getting cured despite correct treatment and operation not being successful without any negligence on the part of the surgeon etc. are not grounds for fastening liability on doctor.

CIVIL LAW AND NEGLIGENCE:
No human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. Doctors must exercise an ordinary degree of skill. However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if he is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence even if the patient is not totally cured. If a doctor has adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong.

LIABILITY UNDER THE CONSUMER PROTECTION ACT:
The Consumer Protection Act, 1986 is a legislation which has speedy justice as one of its objectives. Medical practitioners from all fields of medicine such as Allopathic, Homeopathy, and Naturopathy can be liable under the Consumer Protection Act. In 1995, the Supreme Court decision in Indian Medical Association v. V.P. Shantha brought the medical profession within the ambit of a ‘service’ as defined in the Consumer Protection Act, 1986. The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee.

However, recently in the case of Martin F. D’Souza Vs. Mohd. Ishfaq, the Supreme Court has directed all the Forum constituted under the Consumer Protection Act,1986 and also the ploice not to issue notice or take cognizance of complaint against a doctor without first refering the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence, should notice be issued to the concerned doctor/hospital.

Doctors- To Do
Always mention the additional precautions to patients and that too must be in comprehensible terms .

Side affects along with cure of this must be mentioned to patients.

In case of any deviation from standard care, mention reasons. Mention whether prognosis explained.

Consultation must be made if not sure of certain symptoms and disease.
If after completing the examination the patient/attendant feels that something has been left out and wants something to be re-examined, oblige him.

Mention “diagnosis under review” or “under evaluation” until the diagnosis is finally settled.
If the patient/attendants are erring on any count (history not reliable, refusing investigations, refusing admission) make a note of it or seek written refusal preferably in local language with proper witness.

Record history of drug allergy, write names of drugs clearly and mention clear method and interval of administration.

Mention likely side effects and action to be taken if they occur.

Mention if patient/attendant is under effect of alcohol/drugs.

If you are not sure what disease the patient has after a thorough workup, get a consultation.

Develop a list of physicians you trust and respect in each of the specialties. Nurture your relationship with them and consult them about difficult cases.
Whenever referring a patient provide him with a referring note. In case of emergency, wring up the concerned doctor in the patient’s presence. Show your concern.

Always keep with you and refer the latest edition of the standard textbook of your branch of medicine.

Always subscribe to one standard journal and participate in at least two updates/conferences every year.

Update not only your knowledge and skill but also that of your staff.

Update the facilities and equipments according to prevailing current standards in your area.

Always obtain a legally valid consent before undertaking a surgical/diagnostic procedure.

In case of MTP/Sterilization, always follow the guidelines issued by the Government of India.

In complex medical situation, a doctor would be expected to conduct more frequent and more extensive examination with all ancillary assistance.

In all instances of ‘swab cases’ and ‘instrumental cases’, the surgeon in-charge is generally held directly or vicariously liable for negligence, so he must personally ensure everything to escape the liability.

The period for the responsibility of the surgeon extends to and includes the post operative care. He must, therefore, ensure proper post-operative care to the patient.

In case of death of the patient, police or hospital authorities must be informed without the loss of time so as to take it with autopsy and post-mortem.
A proper legal and medical advice must be made before sending reply to the notice sent by the patient or his representative or to the complaint referred to you from a consumer court/civil court/criminal court.

In case the hospital/clinic claims to provide 24 hours emergency service, availability of necessary equipments in working order and competent staff within reasonable time is mandatory.

Doctors- Don’t Do
Prescription should never be made without examining the patient and shouldn’t assume the words of patient to be true.

Don’t refuse if the patient/attendants want to leave against medical advice as its their right.

Don’t refuse the patient’s right to know about diagnosis and treatment of his illness.
Don’t refuse first-aid/medical care to accidents and emergency cases even if it is a medico-legal cases.

Don’t smoke while examining the patient.

Don’t examine a patient when you are sick, exhausted or under influence of alcohol or under any intoxicating substance.

Don’t operate on both eyes simultaneously unless there is real, documented emergency.

In case of an elective surgery on both eyes simultaneously, be extra cautious and get all pre-operative work-up done and record it.

Don’t perform radial keratotomy on a teenager or in cases who have unstable myopia.

When you are not sure what and why to do, consult your senior/specialist/colleague.

Never talk loose of your colleagues, despite intense professional rivalry. Never criticize your brother in profession.

RIGHTS AND DUTIES OF DOCTOR
DUTIES
Duty of care in deciding whether to undertake the case
Duty of care in deciding what treatment to give
Duty of care in the administration of that treatment
In case of injured persons brought for medical treatment he should instantaneously be given medical aid and thereafter procedural criminal law should be allowed to operate as there is no legal impediment to doctors to attend to such cases immediately.

RIGHTS
Right to refuse to take the case
Right to be reimbursed for services
Right to withhold information
Right to retain medical documents
Right to reputation
PREVENTIVE STEPS FOR DOCTORS TO AVOID LITIGATION
PRIMARY PREVENTION
1.Human element in medical care determines the patient’s/attendant’s reaction to an untoward event. Tactless handling, trivial indignations or unpleasant remarks are the causes of large number of legal actions brought against doctors and hospitals.

2.Behavior of entire system including receptionist, junior staff, cleaners etc., should be continuously monitored specially in a stressful circumstances.

3.Commercial behavior should be discouraged. All the queries of the patient should be answered without minding their repeated questioning.

4. Doctor should not be averse to any suggestion of seeking a second opinion.

5. Doctors who are open minded and communicative are much less likely to be complained against as patients are generally forgiving of errors made by a friendly and concerned medical professional.

7.Risk should be discussed and family of the patient should be made aware of the possible outcome of diagnostic and treatment efforts.

8.Adopting attitude and body language of respect, care and concern is important.

9.Big nursing homes and hospitals should constitute grievance redressal cells.

SECONDARY PREVENTION
Second prevention constitutes
Proper documentation
Proper documentation of date, time and history, investigations, treatment and instructions to the staff and patient is necessary.The gravity of the condition of the patient should neither be exaggerated nor minimised.

Preservation and supply of records.

Medical record pertaining to indoor patients should be maintained for three years from the commencement of the treatment so that the same can be used in case of case filed in the Court. In case of request the medical record are required to be supplied within 72 hours.

Legally valid consent.

Consent plays a remarkable legitimate role in the field of negligence. However, the consent should be free, without any undue influence or pressure and obtained from a person above the age of 18 years.Consent should be obtained after providing adequate information and should be in a language understood by the person giving consent.

THIRD PREVENTION
Professional indemnity insurance
To meet the claim of compensation which may be awarded against a doctor for medical negligence also called deficiency in service under the Consumer Protection Act, it has now become essentially for every doctor to obtain a professional indemnity insurance cover from any recognized insurance company.

FOURTH PREVENTION
Forming medical defense societies and strong peer support to effectively contest legal cases.

Some instances of negligence/deficiency in service
Failure to write prescription legibly may amount to negligence/deficiency in service.
Failure to have equipment such as oxygen cylinder, suction machine, insulator/ventilator, etc., in working order will constitute negligence.

Failure to warn about inherent risks or risk of failure of treatment before taking consent constitutes negligence.

If a risk is known to occur commonly and the same is not explained before taking consent would constitute negligence. For example, a person who has been blind in one eye for many years is offered an operation in hope of restoring some degree of vision should be warned of one in fourteen thousand chance of sympathetic opthalmia developing in other eye, which could render him blind in both eyes.

Adverse reaction of a medicine in itself would not constitute negligence as response of the patient to the medicine differs from person to person but if the doctor has failed to take all necessary precautions excepted from reasonably prudent doctor like asking for history of allergy, performing sensitivity test, etc., it may amount to negligence.

Harm/damage occurring following a telephonic advice would constitute negligence and practice of giving medical advice on telephone should be avoided.

Doctor acting in a negligent manner
It is well accepted that in the cases of gross medical negligence the principle of res ipso loquitur is to be applied. The principle of res ipso loquitur is said to be essentially an evidential principle and the said principle is intended to assist the claimant. Res Ipso 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 been able to keep.  Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. A doctor is not an insurer for the patient, inability to cure the patient would not amount to negligence but carelessness resulting in adverse condition of the patient would.

In Gian chand v. Vinod kumar Sharma it was held that shifting of the patient from one ward to another in spite of requirement of instant treatment to be given to the patient resulting in damage to the patient’s heath then the doctor or administrator of the hospital shall be held liable under negligence. Also in Jagdish Ram v. State of H.P., it was held that before performing any surgery the chart revealing information about the amount of anaesthesia ad allergies of the patient should be mentioned so that an anaesthetist can provide ample amount of medicines to the patient. The doctor in above case failed to do so as a result of the overdose of anaesthesia the patient died and the doctor was held liable for the same.

LIABILITY
The law does not aim to punish all acts of a doctor that caused injury to a patient. It is concerned only with negligent acts. Medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful practitioner would have committed. What is expected of a medical practitioner is ‘reasonably skilful behavior’ adopting the ‘ordinary skills’ and practices of the profession with ‘ordinary care’. If a medical practitioner has taken reasonable care, then he cannot be held liable. A mere difference in opinion, error of judgement, patient not getting cured despite correct treatment and operation not being successful without any negligence on the part of the surgeon etc. are not grounds for fastening liability on doctor.

Liability of the doctors is of following types:
Civil Liability and,
Liability under Torts
Liability under Consumer Protection Act.

Criminal Liability.

Disciplinary Action under Indian Medical Council Act, 1956
The liability of the person committing the wrong can be of three types depending on the harm or the injury suffered by the injured person they are
Distinction between contract for service and contract of service
A ‘contract for service’ implies a contract whereby one party undertakes to render services to another, in which the service provider is not subjected to a detailed direction and control. The provider exercises professional or technical skill and uses his or her own knowledge and discretion. A ‘contract of service’ implies a relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. The ‘contract of service’ is beyond the ambit of the Consumer Protection Act, 1986, under Section 2(1) (o) of the Act. The Court held that even though services rendered by medical practitioners are of a personal nature they cannot be treated as contracts of personal service. They are contracts for service, under which a doctor too can be sued in Consumer Protection Courts.

Free Service
The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients’ charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act. A medical practitioner can thus raise the defense of free service only if the services are given free of charge to everybody, rich and poor, in Government hospital/health center/dispensary or non-Government hospital/nursing home and not where some patients pay and others are treated free.

Liability under torts
Under civil laws, at a point where the Consumer Protection Act ends, the law of torts takes over and protects the interests of patients. This applies even if medical professionals provide free services. In cases where the services offered by the doctor or hospital do not fall in the ambit of ‘service’ as defined in the Consumer Protection Act, 1986, patients can take recourse to the law relating to negligence under the law of torts and successfully claim compensation.
The onus is on the patient to prove that the doctor was negligent and that the injury was a consequence of the doctor’s negligence. Such cases of negligence may include transfusion of blood of incorrect blood groups, leaving a mop in the patient’s abdomen after operating, unsuccessful sterilization resulting in the birth of a child, removal of organs without taking consent, operating on a patient without giving anesthesia, administering wrong medicine resulting in injury, etc.

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim:
A duty was owed – a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
A duty was breached – the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitor or ‘the thing speaks for itself’).
The breach caused an injury – The breach of duty was a proximate cause of the injury.
Damages – That such injury was caused in fact and proximately caused by the substandard conduct of the physician. Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

DISCIPLINARY ACTION UNDER THE INDIAN MEDICAL COUNCILS ACT, 1956: A physician is liable for disciplinary action under the Indian Medical Council Act, 1956 and relevant State Medical Council Acts only under circumstances of adultery or improper association with a patient, conviction by a court of law for offenses involving moral turpitude, giving of a certificate, notification, report or document which is untrue, misleading or improper in relation to matters mentioned in clause 3 (i) of the Code of Medical Ethics, contravening provisions of the Drugs Act, selling scheduled poison and few other related matters.

Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/ Societies/Bodies. But mostly a warning is issued.

ISSUE: Whether the doctors are under an obligation to treat the patient?
As far as the Code of Ethics is concerned, there is no obligation to treat the patient in a way that a physician cannot be sued in a court of law if he refuses to treat a patient even in an emergency. Only an appeal is made which is only a moral or ethical appeal and not a legal one.
In Parmanand Katara’s case, a duty was imposed to treat the patient but no corresponding change has been brought about in the Code of Ethics. Moreover, a person, who undertook to give assistance, assumes a legal duty to act with reasonable care. Failure to use reasonable care, regardless of humanitarian motives, would subject the physician to tort liability. Physicians are therefore reluctant to offer help even in an emergency especially when the emergency relates to traffic accidents and incidents which involve the police.
In America, there is a legislatively imposed obligation on general hospitals, both private and public, to offer emergency care to the public. In some states this has been interpreted to mean even when the patient is a foreign citizen. Sadly, there is no legislation on this point in India.
The State of California, in 1959, became the first state in U.S.A. to enact Good Samaritan legislation altering the common law rights and obligations in medical malpractice area. The section read- “No person licensed under this chapter, who in good faith renders emergency care at the scene of an emergency, shall be liable for any civil damages as a result of any act or omission by such person rendering the emergency care”. Similar legislation need to be enacted in India if society expects physicians to render emergency care without incurring liability.
ISSUE: Whether the doctrine of Contributory Negligence is applicable in medical negligence cases?
This doctrine is based on the concept that if the complainants act was the proximate cause of the damage the complainant cannot recover damages from the medical practitioner. Most contributory negligence will relate to circumstances involving conduct taken against medical advice, such as the patient leaving the hospital, failing to return for follow-up, after an operation. Example after a bone operation the patient is advised complete rest and the patient ignoring the advice becomes mobile and suffers harm it would be open to the surgeon to plead contributory negligence and then show that proper advice of rest was given which the patient did not follow.
In England, there is Law Reform (Contributory Negligence) Act, 1945. In America, under the doctrine of “avoidable consequences” i.e., if the consequences are such which would have been easily avoided, the plaintiff’s damages are appropriately reduced.

There is no developed case law on this subject relating to medical malpractice litigation. It would be interesting to see the development of this aspect of negligent claims made by patients in India.
ISSUE: Whether the consent should be expressed or implied consent?
There have been no authoritative pronouncements by the Indian courts on the issue of the nature of consent required for medical procedures and operations. It is this backdrop that makes judgment in the Samira Kohli case a landmark one in the history of medical jurisprudence. The judgment was delivered on January 11, 2008, and is reported as Samira Kohli v. Dr Prabha Manchanda.
In this case, the patient, Samira complained of prolonged bleeding. The doctor asked her to for laparoscopy. The consent form for surgery described it as “diagnostic and operative laparoscopy which involves the insertion of a fibre-optic instrument through the abdomen to view the internal organs to know its state. While Samira was still unconscious, the doctor came out of the operation theatre and took the consent of the patient’s mother for a hysterectomy i.e., an operation to remove all or any part of the womb. Thereafter, Dr Manchanda removed the patient’s uterus, ovaries and fallopian tubes. The patient contended that the doctor had been negligent and that the radical surgery had been done without her consent and that the removal of her reproductive organs was unauthorized and unwarranted.
The Supreme Court held that ‘consent’ in the context of a doctor-patient relationship meant granting of permission by the patient for an act to be carried out by the doctor. Consent, in some circumstances, could be implied from the patient’s actions. The court declared that except where consent can be clearly and obviously implied, there should be express consent. That unless the unauthorized additional or further procedure was necessary in order to save the life or preserve the health of the patient, it would be unreasonable for the doctor to perform the procedure without the patient’s consent. The relevant factor is “the inviolable nature of the patient’s right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not”.

The consent must be real — that is, the patient must be given sufficient information about the operation and effects in order to reach a proper decision. It is for the doctor to decide how much information should be given to the patient. A surgeon need not warn the patient of remote risks. However, if the patient asks a direct question, then it is the duty of the doctor to give a truthful answer.
ISSUE: Does a physician or a hospital have the right to retain documents which contain information relating to the patient?
This is a vexed question and needs to be addressed. There is one view which holds that since information contained in a document is privileged the physician/hospital has the right to retain such document. A contrary view holds that since the information, though privileged, may be needed by the patient for future reference it should be given when specifically sought. It is submitted that information, though privileged, is about the patient who seeks the document. The same cannot be withheld since there cannot be a privilege against a person who seeks information about himself contained in a document. A physician or hospital may retain a photocopy of the document given to the patient. Alternately, the patient could be supplied with a photocopy of the document sought while retaining the original with the physician/hospital. A physician/hospital is bound to disclose information when ordered by a court or agencies concerned in the administration of justice.
ISSUE- Whether the doctrine of res ipsa liquitor can be applied in medical negligence cases or the expert evidence should be insisted upon?
The position has been clarified in the Jacob Mathews case and is good law declared by the court. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law especially in cases of torts and helps in determining the onus of proof in actions relating to negligence. If there is lack of service and the situation demands the compensation to be paid, the doctrine can be pressed into service. Otherwise, expert evidence is insisted upon and it is necessary so that a balance is created. If per se the doctors are held liable then the situation will worsen. People might start taking advantage of the situation and this may give rise to frivolous petitions as has happened in the past. Not only will the reputation of the doctor but the faith of the people in the profession also diminish. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.

ISSUE- Whether the expert evidence is required under the Consumer Protection Act, 1986 when it thrives for speedy justice?
In India this has attained special significance since the passing of the Consumer Protection Act, 1986. One of the main objectives of the Act is quick relief to the consumer. Accordingly, courts often take evidence by means of affidavits without recording testimony of experts and without an opportunity of cross-examination, since this would consume time and delay, what it visualizes as justice. But it is submitted that expert testimony would lose much of its credibility if reliance is made on affidavits alone since it not enough for the expert merely to testify what he personally would have done but to establish the applicable professional standard and that the medical practitioner charged with negligence departed from that standard which resulted in harm to the complainant. This can hardly be done by affidavits alone and would require recording of detailed evidence especially in complex issues.
Although the Act stands for the speedy justice, in nominal cases the forum should proceed without insisting upon the expert evidence so as to dispose of the dispute readily. But if the case is technical and involves such interpretation as could be made by the experts only, either the evidence should be insisted upon or the case could be sent to the civil court to deal with the matter properly.
The Consumer Courts are supposed to deliver judgement within 90 days. However, according to Dr Lalit Kapoor, Chairman, Medico-Legal Cell, Association of Medical Consultants, (AMC), “Giving adjournments has become the norm but ideally not more than one adjournment shall be allowed.” According to Association for Consumer Actions on Safety and Health (ACASH), on an average, the cases take 10 to 12 years to complete at all the levels of the courts.
Thus, when the cases themselves are taking so long to solve, there is no harm on insisting on the expert evidence.

ISSUE- Whether the doctors are also harassed in the medical negligence suit?
Kerala-based Dr P V George, immediate past president of IMAs -national, questions the concept of a three-tier committee of Consumer Courts that gives verdict on medical negligence, sans knowledge of medicine. To corroborate his stand, he cited a case of a patient in Kerala, who succumbed to a cardiac arrest following anaesthesia. When the patient’s family sued the doctor for medical negligence, the Consumer Courts decreed that the patient died of starvation before anaesthesia, as advised by the doctor.
“The patient could not have died due to starvation prior to anaesthesia, as starvation is a must before anaesthesia” explains Dr George. Medicos vehemently oppose the practice of accepting cases without any prima facie evidence of negligence. Sometimes people file cases just to harass the person or to extract money.

ISSUE: Why is there a sudden spurt of medico-legal cases?
It is partly due to the heightened awareness about consumers rights.

It is also attributed to poor communication skills of doctors, who do not take the pain of explaining the cause of failure of a procedure or death to patients or their kin. The handwriting of the doctors should also be improved. Whatever they wrote is understandable only by the Chemist and not by others so that whatever is written could be cross-checked.
Burden of proof should necessarily be high in the medical negligence suits. It is not like any other case.
The standard of education is also decreasing and the profession has not remained what it used to be.
The people have become money minded and even doctors keep money first unlike the previous times.

ISSUE: Whether the present situation for liability of the doctors is the balanced approach?
In my opinion it is a very balanced approach. The interests of the patients are also protected and the doctors have also got some solace after the judgment of Jacob Mathews. But still if some guidelines are framed by the Central Government, the situation would be better improved.

ISSUE- Whether the present law on medical negligence is sufficient?
The law is not sufficient. Some changes need to be made:
An amendment should be done in Section 304-A of the Indian Penal Code, 1860 and an explanation should be added that in medical negligence cases negligence should be read with prefix “gross”.

There should be an amendment in the Code of Medical Ethics.

Consumer Protection Act, 1986 should also be amended. Some amendments are necessary like the Consumer Courts may only accept cases with prima facie evidence of medical negligence. The compensation of Rs 10,000 given to defendant for vexatious case needs to be hiked substantially so that frivolous cases are not filed. The interests of both the parties should be balanced.
Some guidelines should be framed by the government on the lines of Jacob Mathew’s case as well as Samira Kohli’s case. DGP, Tamil Nadu, has already issued a memorandum of instructions in this regard.
CIVIL LAW AND NEGLIGENCE:
No human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error.

In a key decision on this matter in the case of Dr Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole, the Supreme Court held that if a doctor has adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong.

Doctors must exercise an ordinary degree of skill. However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not totally cured.

Civil Liability
Civil liability usually includes the claim for damages suffered in the form of compensation. If there is any breach of duty of care while operating or while the patient is under the supervision of the hospital or the medical professional they are held to be vicariously liable for such wrong committed. And are liable to pay damages in the form of compensation. At times the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors. If someone is an employee of a hospital, the hospital is responsible if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital is on the hook for any resulting injuries to the patient HYPERLINK “https://www.lawctopus.com/academike/medical-negligence/” l “_edn15” xv. In Mr. M Ramesh Reddy v. State of Andhra Pradesh, the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. A compensation of Rs. 1 Lac was awarded against the hospital HYPERLINK “https://www.lawctopus.com/academike/medical-negligence/” l “_edn17”
Criminal Liability
There may be an occasion when the patient has died after the treatment and criminal case is filed under Section 304A of the Indian Penal Code for allegedly causing death by rash or negligent act. According to S. 304A of the IPC, whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to two years, or by fine, or both HYPERLINK “https://www.lawctopus.com/academike/medical-negligence/” l “_edn18” xviii. Hospitals can be charged with negligence for transmission of infection including HIV, HBsAg, etc. if any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital then the hospital can be held liable for lack of reasonable duty to care. My very own grandmother passed away due to the negligence of the doctors. Due to the carelessness of the doctor that he was in so hurry to rush for his next operation that he forgot to sterilize the equipment and as a result there was this transmission of some infection into her blood which infected her entire system and ultimately resulted in her death.

Further In Dr. Suresh Gupta’s Case – Supreme Court of India, 2004 – the court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal law for offence under section 304A of Indian Penal Code, 1860 will apply. HYPERLINK “https://www.lawctopus.com/academike/medical-negligence/” l “_edn19” xix Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpractice in India.

The conduct of medical malpractice was brought under the Consumer Protection Act, 1986, due to the landmark case of the Indian Medical Association vs. V. P. Shantha & others HYPERLINK “https://www.lawctopus.com/academike/medical-negligence/” l “_edn20” xx, The judgment in this case defined medical care as a “service” that was covered under the Act, and also clarified that a person seeking medical attention may be considered a consumer if certain criteria were met.

The service provided was not free of charge or for a nominal registration fee;
If free, the charges were waived because of the patient’s inability to pay;
The service was at a private hospital that charges all patients; or
Any service rendered which was paid for by an insurance firm.

This meant that certain categories of patients could now sue errant health care providers for compensation under the Consumer Protection Act, 1986, as a breach of contract. Only facilities and doctors that provided all services free of cost to all clients were not liable under the CPA. However, even patients that do not fall under the category of consumers under the Act can sue for negligence under the law of Torts. The burden to prove negligence, however, is on the patient.

Liability under the Consumer Protection Act: The Consumer Protection Act, 1986 is a legislation which has speedy justice as one of its objectives. Medical practitioners from all fields of medicine such as Allopathic, Homeopathy, and Naturopathy can be liable under the Consumer Protection Act.

In 1995, the Supreme Court decision in Indian Medical Association v. V.P. Shantha brought the medical profession within the ambit of a ‘service’ as defined in the Consumer Protection Act, 1986.
The court held that:
“In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man’s control.”
As a result of this judgment, medical profession has been brought under Section 2(1) (o) of Consumer Protection Act, 1986 and also, it has included the following categories of doctors/hospitals under this Section:
1. All medical/dental practitioners doing independent medical/dental practice unless rendering only free service.

2.Private hospitals charging all patients.

3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.

4. Medical/dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.

Free Service: The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients’ charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act. A medical practitioner can thus raise the defense of free service only if the services are given free of charge to everybody, rich and poor, in Government hospital/health center/dispensary or non-Government hospital/nursing home and not where some patients pay and others are treated free.

ISSUE: Whether the consent should be expressed or implied consent?
There have been no authoritative pronouncements by the Indian courts on the issue of the nature of consent required for medical procedures and operations. It is this backdrop that makes judgment in the Samira Kohli case a landmark one in the history of medical jurisprudence. The judgment was delivered on January 11, 2008, and is reported as Samira Kohli v. Dr Prabha Manchanda.
In this case, the patient, Samira complained of prolonged bleeding. The doctor asked her to for laparoscopy. The consent form for surgery described it as “diagnostic and operative laparoscopy which involves the insertion of a fibre-optic instrument through the abdomen to view the internal organs to know its state. While Samira was still unconscious, the doctor came out of the operation theatre and took the consent of the patient’s mother for a hysterectomy i.e., an operation to remove all or any part of the womb. Thereafter, Dr Manchanda removed the patient’s uterus, ovaries and fallopian tubes. The patient contended that the doctor had been negligent and that the radical surgery had been done without her consent and that the removal of her reproductive organs was unauthorized and unwarranted.
The Supreme Court held that ‘consent’ in the context of a doctor-patient relationship meant granting of permission by the patient for an act to be carried out by the doctor. Consent, in some circumstances, could be implied from the patient’s actions. The court declared that except where consent can be clearly and obviously implied, there should be express consent. That unless the unauthorized additional or further procedure was necessary in order to save the life or preserve the health of the patient, it would be unreasonable for the doctor to perform the procedure without the patient’s consent. The relevant factor is “the inviolable nature of the patient’s right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not”.

The consent must be real — that is, the patient must be given sufficient information about the operation and effects in order to reach a proper decision. It is for the doctor to decide how much information should be given to the patient. A surgeon need not warn the patient of remote risks. However, if the patient asks a direct question, then it is the duty of the doctor to give a truthful answer.

CONCLUSION
It isn’t expressed that specialists are careless or unreliable yet while playing out the obligation which requires a great deal of persistence and care, frequently numerous experts fall flat or breaks their duty towards the patient. Solution which is one of the noblest callings requires setting a domain which can profit the casualties of different sicknesses. Numerous specialists even the master now and again disregards little things to be dealt with while rehearsing which may result in harms to the patients that could have been kept away from or now and again even the demise of the patients. This kind of expert carelessness needs more concentration than to incorporate it in different laws or statutes. An autonomous and extraordinary council will be set up to administer the misbehaviour. In our country recently in a case Krishna Iyer v. State of Tamilnadu and Others HYPERLINK “https://www.lawctopus.com/academike/medical-negligence/” l “_edn21” xxi the Apex Court awarded a compensation of 1.8 crores on July 1, 2015 as she lost her eyes in 1996. This is highest amount of compensation awarded in the country. Numerous activists and the casualties of therapeutic carelessness have been charging to get redressal against malafied demonstrations of medicinal professionals and specialists. Not only for solution, the law will be made relevant to every one of the experts rehearsing in various territories which require an imperative measure of aptitude and obligation of care. Individuals in our nation are as of now casualties of numerous illnesses and are biting the dust because of same, how about we try endeavors to lessen these passings and spotlight on extemporizing the calling with the goal that individuals don’t bite the dust in where they come to get recuperated.

REFERENCES
Books
Websites