A patient approaching a doctor expects medical treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. The relationship takes the shape of a contract retaining the essential elements of tort. A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor. The doctor has a duty to obtain prior informed consent from the patient before carrying out diagnostic tests and therapeutic management. The services of the doctors are covered under the provisions of the Consumer Protection Act, 1986 and a patient can seek redressal of grievances from the Consumer Courts. Case laws are an important source of law in adjudicating various issues of negligence arising out of medical treatment.
The medical profession is considered a noble profession because it helps in preserving life. We believe life is God given. Thus, a doctor figures in the scheme of God as he stands to carry out His command. A patient generally approaches a doctor/hospital based on his/its reputation. Expectations of a patient are two-fold: doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly they will not do anything to harm the patient in any manner either because of their negligence, carelessness, or reckless attitude of their staff. Though a doctor may not be in a position to save his patient's life at all times, he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him. Therefore, it is expected that a doctor carry out necessary investigation or seeks a report from the patient. Furthermore, unless it is an emergency, he obtains informed consent of the patient before proceeding with any major treatment, surgical operation, or even invasive investigation. Failure of a doctor and hospital to discharge this obligation is essentially a tortious liability. A tort is a civil wrong (right in rem) as against a contractual obligation (right in personam) – a breach that attracts judicial intervention by way of awarding damages. Thus, a patient's right to receive medical attention from doctors and hospitals is essentially a civil right. The relationship takes the shape of a contract to some extent because of informed consent, payment of fee, and performance of surgery/providing treatment, etc. while retaining essential elements of tort.
In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the aforementioned case, the apex court interalia observed that negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se. Black's Law Dictionary defines negligence per se as “conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statute or valid Municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.”
Negligence per se
While deliberating on the absence of basic qualifications of a homeopathic doctor to practice allopathy in Poonam Verma vs. Ashwin Patel and Ors. (1996) 4 SCC 322, the Supreme Court held that a person who does not have knowledge of a particular system of medicine but practices in that system is a quack. Where a person is guilty of negligence per se, no further proof is needed.
Duty on the part of a hospital and doctor to obtain prior consent of a patient
There exists a duty to obtain prior consent (with respect to living patients) for the purpose of diagnosis, treatment, organ transplant, research purposes, disclosure of medical records, and teaching and medico-legal purposes. With respect to the dead in regard to pathological post mortem, medico-legal post mortem, organ transplant (for legal heirs), and for disclosure of medical record, it is important that informed consent of the patient is obtained. Consent can be given in the following ways:
- Express Consent: It may be oral or in writing. Though both these categories of consents are of equal value, written consent can be considered as superior because of its evidential value.
- Implied Consent: Implied consent may be implied by patient's conduct.
- Tacit Consent: Tacit consent means implied consent understood without being stated.
- Surrogate consent: This consent is given by family members. Generally, courts have held that consent of family members with the written approval of 2 physicians sufficiently protects a patient's interest.
- Advance consent, proxy consent, and presumed consent are also used. While the term advance consent is the consent given by patient in advance, proxy consent indicates consent given by an authorized person. As mentioned earlier, informed consent obtained after explaining all possible risks and side effects is superior to all other forms of consent.
The importance of obtaining informed consent
In the case of Samira Kohli vs. Dr. Prabha Manchanda and Ors. I (2008) CPJ 56 (SC), the apex court held that consent given for diagnostic and operative laparoscopy and “laporotomy if needed” does not amount to consent for a total hysterectomy with bilateral salpingo opherectomy. The appellant was neither a minor nor mentally challenged or incapacitated. As the patient was a competent adult, there was no question of someone else giving consent on her behalf. The appellant was temporarily unconscious under anesthesia, and as there was no emergency. The respondent should have waited until the appellant regained consciousness and gave proper consent. The question of taking the patient's mother's consent does not arise in the absence of emergency. Consent given by her mother is not a valid or real consent. The question was not about the correctness of the decision to remove reproductive organs but failure to obtain consent for removal of the reproductive organs as performance of surgery without taking consent amounts to an unauthorized invasion and interference with the appellant's body. The respondent was denied the entire fee charged for the surgery and was directed to pay Rs. 25000/- as compensation for the unauthorized surgery.
Coverage of doctors and hospitals under CPA
In the case of the Indian Medical Association vs. V.P. Shanta and Ors., III (1995) CPJ 1 (SC), the Supreme Court finally decided on the issue of coverage of medical profession within the ambit of the Consumer Protection Act, 1986 so that all ambiguity on the subject was cleared. With this epoch making decision, doctors and hospitals became aware of the fact that as long as they have paid patients, all patients are consumers even if treatment is given free of charge. While the above mentioned apex court decision recognizes that a small percentage of patients may not respond to treatment, medical literature speaks of such failures despite all the proper care and proper treatment given by doctors and hospitals. Failure of family planning operations is a classic example. The apex court does not favor saddling medical men with ex gratia awards. Similarly, a in a few landmark decisions of the National Commission dealing with hospital death, the National Commission has recognized the possibility of hospital death despite there being no negligence.
WHERE COMPENSATION WAS AWARDED
In this context, it may be recalled that in the case of the State of Haryana and Ors v. Smt. Santra, I (2000) CPJ 53 (SC) (by S. Saghir Ahmad and D.P.Wadhwa, JJ.), the Supreme Court in a Special Leave Petition upheld the claim for compensation where incomplete sterilization (family planning operation) was held to be defective in service. Smt Santra underwent a family planning operation related only to the right fallopian tube and the left fallopian tube was not touched, which indicates that complete sterilization operation was not performed. A poor laborer woman, who already had many children and had opted for sterilization, became pregnant and ultimately gave birth to a female child in spite of a sterilization operation that had obviously failed.
Claim for damages was based on the principle that if a person has committed civil wrong, he must pay compensation by way of damages to the person wronged. The apex court held: “Maintenance” would obviously include provision for food, clothing, residence, education of the children and medical attendance or treatment. The obligation to maintain besides being statutory in nature is also personal in the sense that it arises from the very existence of the relationship between a parent and the child. Claim for damages, on the contrary, is based on the principle that if a person has committed civil wrong, he must pay compensation by way of damages to the person wronged.
While elaborating on medical negligence, the apex court observed as follows (abridged): Negligence is a ‘tort’. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as ‘implied undertaking’ by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. In the case of Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118, McNair, J. summed up the law as the following:
“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. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he confirms with one of these proper standards, then he is not negligent.”
In the case of Spring Meadows Hospital and Anr. v Harjol Ahluwalia, 1998 4 SCC 39, a compensation of Rs. 5 lacs was awarded because of mental anguish caused to the parents of a child who became totally incapacitated for life in addition to a compensation of Rs. 12 lacs approx. awarded to the child. While the amount of Rs. 12 lacs was to be paid by insurer, the balance amount was to be paid by the hospital. Though the insurance company took a stand since the nurse who administered the adult dose of inj. Lariago to the child was not qualified, the apex court did not go into this issue while adjudicating negligence related proceeding. Therefore, it is important to keep in mind that doctors and hospitals should not only obtain a Professional Indemnity Insurance Policy, but also take care that nurses and other hospitals staff engaged by it are qualified.
MEDICAL ETHICS AND THE TREATMENT OF ACCIDENT VICTIMS
In the case of Pravat Kumar Mukherjee vs. Ruby General Hospital and Ors, II(2005)CPJ35(NC), the National Commission delivered a landmark decision concerning treatment of an accident victim by the hospital. The brief facts of the case are as follows: the complainants are the parents of the deceased boy. They approached the National Commission for compensation and adequate relief. The case involves the unfortunate death of a young boy, Shri Sumanta Mukherjee, a student of second year B. Tech., Electrical Engineering. At Netaji Subhash Chandra Bose Engineering College on January 14, 2001 a bus from Calcutta Tramway Corporation crashed with the motorcycle driven by the deceased. Sumanta was conscious after the accident and was taken to the hospital about 1 km from the site of the accident. He was insured for Rs. 65,000/- under a Mediclaim Policy issued by the New India Assurance Co. Ltd. When he reached the hospital, the deceased was conscious and showed the Mediclaim certificate he was carrying in his wallet. He also assured that charges for treatment would be paid and treatment should be started. Acting on this promise, the hospital started treatment in its emergency room by giving moist oxygen, starting suction, and by administering injection Driphylline, Injection Lycotinx, and titanous toxoid. The respondents demanded an immediate payment of Rs. 15000/- and discontinued treatment as the amount was not deposited immediately though an assurance to pay the amount was made by the accompanying persons from the general public. Actually, the crowd collected Rs. 2000/- and the amount with the motorcycle of the patient and insurance receipt was offered. As the hospital was adamant and discontinued treatment after giving treatment for 45 minutes, the people from the crowd present were forced to take the patient to National Calcutta Medical College, which is about 7-8 km from the current hospital. The patient died on the way and was declared dead upon arrival at the National Calcutta Medical College.
The National Commission allowed the complaint and the Opponent Ruby Hospital was directed to pay Rs. 10 lakhs to the Complainant for mental pain agony. The Commission observed as follows: “This may serve the purpose of bringing about a qualitative change in the attitude of the hospitals of providing service to human beings as human beings. A human touch is necessary; that is their code of conduct; that is their duty and that is what is required to be implemented. In emergency or critical cases, let them discharge their duty/social obligation of rendering service without waiting for fee or for consent”. However, it remains to be seen whether the above award has brought in any attitudinal change in the medical fraternity.
An award was given on the following basis/grounds. While dealing with the contention that ‘no consideration paid’, ‘deceased or complainant not consumer’ National Commission observed as follows (abridged): “Not acceptable. Persons belonging to the poor class who are provided service free of charge are beneficiaries of service which is hired or availed of by the paying class. The status of an emergency or critically ill patient would be the same as people belonging to the poor class since both are not in a position to pay. Free services would also be services and the recipient would be the consumer under the Act. Since doctors started treatment on the deceased due to an emergency, that itself is availing of services, may it be free of cost or promised deferred payment. Expert evidence pointed out that discontinuance of treatment hastened the death of the patient, which itself is deficiency in service. Serious negligence and laxity on the part of the hospital by refusing admission and treatment facility to the youth who was almost in dying condition, defying all medical ethics and a gross violation of the Clinical Establishment rules and Act of 1950 as amended in 1998. How was a patient who was advised admission at ITU was allowed to leave the hospital for treatment elsewhere without signing any document or risk bond not shown? Withdrawal of treatment can not be justified on any ground. Deficiency is writ large.
Secondly, while dealing with the contention that there was no consent for treatment, the National Commission observed as follows (abridged): “Since emergency treatment is required to be given to a patient who was brought in seriously injured condition there was no question of waiting for consent. Consent is implicit in such cases. On the contrary, a surgeon who fails to perform an emergency operation must prove that the patient refused to undergo an operation not only at the initial stage but even after he was informed about the dangerous consequences of not undergoing the operation. Waiting for consent of a patient or a passer-by who brought the patient to the hospital is nothing but absurd and is apparent failure of duty on the part of doctor. Deficiency in service was proved and compensation was granted.
Maintainability of a consumer case when a Motor Accident Claims Tribunal (MACT) case is pending: The National Commission held that the MACT case is no bar to complaint under CP Act. Two causes are different and required to be decided by separate tribunals/forums. While the cause of action before MACT was rash and negligent driving, due to which the accident was caused, the cause of action against doctors and hospitals is for deficiency in rendering service – emergency treatment by the doctors or the hospital. Since both causes are separate and distinct, complaint is maintainable.
THE IMPORTANCE OF CASE LAW
Jurisprudential principle of ‘stare decisis’ is based on a Latin phrase meaning to stand by decided cases; to uphold precedents; to maintain the positions laid down by higher courts earlier. One of the important characteristics of a good law is that the law should be definite, lucid, and unambiguous with the flexibility to relate to different situations, facts, and circumstances and that justice is done in accordance with law. Latin maxim ‘Stare decisis, et non quieta movere’ means it is best to adhere to decisions and not to disturb questions put at rest. The objective is to avoid confusion in the minds of the citizens as to what the law of the land is. As laid down in u.a 141 of the constitution of India, the law declared by the Supreme Court is binding in all courts. Furthermore, the Constitution of India provides that both the Supreme Court and High Courts of States are the courts of records. So far as the case law laid down by the National Commission and State Commission is concerned, they are followed by lower fora as a binding precedent though no specific provision has been made in the Consumer Protection Act, 1986. It is generally accepted that when a point of law is settled by a decision of a superior authority, it is not to be departed from. Change of a judge shall not affect the settled legal position. A new judge is not supposed to pronounce a new law but is expected to maintain and expound the old one. While this appears to restrict the elbow room of new judges to interpret the law when there is a settled legal position laid down by his predecessor, this restriction is substantially lifted when the law undergoes amendment. There is considerable criticism that Consumer Fora have not scrupulously followed the principle laid down by superior fora, that is State Commissions of the state and the National Commission and also that even superior fora have often not maintained settled positions laid down by their predecessors. The decisions of the National Commission and State Commissions are reported. However, there may not be uniformity with all such decisions. Furthermore, there may be conflicting decisions of various State Commissions and National Commissions. Consequently, while some legal experts have called for express provision to that effect, others feel that the principle being followed in respect of the Supreme Court and High Courts (since an appeal to Supreme Court is provided, High Courts are generally not expected to entertain consumer related writs though there is no such bar in the Act) may be generally followed even in respect of the decisions of State and National Commission subject to the interpretations if any of High Courts and the final legal position as laid down by Supreme Court.
Clear case of medical negligence (similar to res ipsa loquitor?)
An appellant doctor was found by the State Commission to be responsible for leaving ribbon gauze in the right side of the nose after a septoplasty resulting in several complications. The complainant suffered and had to be under treatment all the while the National Commission confirmed the order and observed that it has no option but to deduce that it was a clear case of medical negligence on the part of the appellant. The National Commission in the case of Dr. Ravishankar vs. Jery K. Thomas and Anr, II (2006) CPJ 138 (NC) held that based on the facts and circumstances, the obvious deduction is that the appellant doctor is responsible for leaving behind ribbon gauze resulting in complications. Medical negligence was proved.
The brief facts of the case are as follows. The complainant was having some nasal and breathing problems. He approached the appellant doctor who upon examination advised a septoplasty, which was carried out on August 18, 1999 in second Respondent's hospital. It is the case of the complainant that after the operation, the pain aggravated and the breathing problem persisted. After examination, the complainant was advised to take some antibiotics for major nasal infection. Despite taking these medicines, the complainant was not getting any relief so he was taken to St. John's Hospital. A computed tomography (CT) scan showed that there was a deposit inside the nasal cavity for which an endoscopy was performed at St. John's hospital. Cotton gauze was removed from the nasal section on November 28, 2000. It was in these circumstances alleging medical negligence on the part of appellant and second respondent a complaint was filed before the State Commission. After hearing perusal of evidence and other material on record, the State Commission held the second respondent guilty of medical negligence and directed him to pay a compensation of Rs. 1 lac with interest @ 6% p.a from the date of complaint along with the cost of Rs. 5000/-. Aggrieved by this order, the Appellant doctor filed this appeal.
Held: heard the counsel for the appellant. As held by the State Commission, it is neither the surgery nor the procedure adopted that is under challenge. What is being challenged is the leaving behind of cotton gauze after surgery and the non removal of it by the appellant doctor. After going through the record maintained at St. John's hospital, Dr. Balasubramanium opined that after the CT scan a soft tissue mass (gauze piece) was found retained in the right nasal cavity that was removed under local anesthesia.
CONCLUSION
In these circumstances, deduction is obvious that it was the appellant who was responsible for leaving behind ribbon gauze in the right side of the nose after the septoplasty performed by him on August 18, 1999 resulting in several complications. Because of this, the complainant suffered and had to be under treatment leaving us with no option but to deduce that it was a clear case of medical negligence on the part of the appellant.
MEDICO LEGAL – SOME IMPORTANT ISSUES
The death of a patient while undergoing treatment does not amount to medical negligence.
In the case of Dr. Ganesh Prasad and Anr. V. Lal Janamajay Nath Shahdeo, I (2006) CPJ 117 (NC), the National Commission (Order: Per Mrs. Rajalaxmi Rao, Member) reiterated the principle that where proper treatment is given, death occurring due to process of disease and its complication, it can not be held that doctors and hospitals are negligent and orders of lower fora do not uphold the claim and award a compensation. In this case, a 4 ½ year old child suffering from cerebral malaria was admitted to the hospital. A life-saving injection was given. As opined by the child specialist, doses were safe and the treatment was proper. Though the death of the child is unfortunate, it can not be said that there was negligence on the part of the doctor.
The opinion based on teachings of one school of thought may not amount to medical negligence when there are two responsible schools of thought. Observations of the National Commission in the case of Dr. Subramanyam and Anr. vs. Dr. B. Krishna Rao and Anr., II (1996) CPJ 233 (NC) on the question of medical negligence are most illuminating as it involved a complaint by a well-qualified doctor against a fellow professional who treated his wife for an endoscopic sclerotherapy. It is relevant to note that in this case the complainant doctor alleged that the moment the patient was admitted to the Nursing Home, there was total mismanagement to the extent of virtually throwing her into the jaws of death solely because of negligence and improper rather wrong treatment given to her by the first opposite party, Dr. Rao. The complainants submitted that the slipshod, callous, and negligent way in which the patient was treated led to her death. Hon'ble Commission observed as follows: “The principles regarding medical negligence are well settled. A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor can not be found negligent merely because in a matter of opinion he made an error of judgment. It is also well settled that when there are genuinely two responsible schools of thought about management of a clinical situation the court could do no greater disservice to the community or advancement of medical science than to place the hallmark of legality upon one form of treatment.”
Error of judgment in diagnosis or failure to cure a disease does not necessarily mean medical negligence. In the case of Dr. Kunal Saha vs. Dr. Sukumar Mukherjee and Ors. III (2006) CPJ 142 (NC), the National Commission (per Mr. Justice M. B. Shah, President) considered the question of whether the Opponent doctors and hospital acted negligently in diagnosis of the disease suffered by the patient (wife of complainant doctor), administration of medicine (it was alleged that an overdose of steroids was prescribed), provision of facilities in hospital (absence of burn unit in hospital was alleged). A compensation of Rs. 77,76,73,500/- was claimed. The National Commission held that an error in medical diagnosis does not amount to deficiency in service. The National Commission further observed that the deceased (wife of Complainant) suffered from TEN (Toxic Epidermal Necrolysis), which is a rare disease and the mortality rate varies from 25% to 70% as per medical literature. The Commission also observed that considering the facts and circumstances of this case, the doctor can not be held liable for want of an exact diagnosis.
Role of expert opinion: in the case of Sethuraman Subramniam Iyer vs. Triveni Nursing Home and Anr. I (1998) CPJ 110 (NC), the National Commission dismissed the complaint holding that there was no expert evidence on behalf of the complainant. Similarly, in ABGP vs. Jog Hospital, the complaint was held to be not maintainable. In Farangi lal Mutneja vs. Shri Guru Harkishan Sahib Eye Hospital Sahana and Anr., IV (2006) CPJ 96, Union Territory Commission, Chandigarh dismissed the claim based on medical negligence with following observation: “The O.P. conducted an eye operation upon the complainant. The cornea was damaged subsequently, and visibility was lost. The complainant alleged that proper dilation of an eye was not done before conducting the cataract operation. Also it was alleged that the operation was done in a hurried manner. The Medical Council of India, after obtaining the expert opinion of two well known institutions, came to the conclusion that standard treatment protocol was followed and optimal procedures were carried out. Thus there was no negligence on the part of the O.P.”
Medical Literature: In the case of P. Venkata Lakshmi vs. Dr. Y. Savita Devi, II (2004) CPJ 14 (NC), the National Commission held that the State Commission ought to have considered the medical literature filed by the complainant and the State Commission had dismissed the complaint on the grounds that there was no expert evidence and remanded the matter.
Quantum of compensation: With regard to the quantum of compensation payable to an injured patient, the Supreme Court observed in the case of IMA vs. V.P. Shanta and Ors. III (1995) CPJ I (SC), as follows: “A patient who has been injured by an act of medical negligence has suffered in a way which is recognized by the law – and by the public at large as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and the future cost of medical or nursing care. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. After all, there is no difference in legal theory between the plaintiff injured through medical negligence and the plaintiff injured in an industrial or motor accident.”
Engaging a specialist when available is obligatory. In the case of Prashanth S. Dhananka vs. Nizam Institute of Medical Science and Ors (1999) CPJ43 (NC), the National Commission deliberated on important issues such as what constitutes medical negligence, the duty of a hospital to engage a specialist when a specialist is available, vicarious liability of a hospital for omissions and commissions of doctors and staff, and compensation for mental and physical torture.
The National Commission on the question of whether compensation has to be awarded when doctors decide not to operate and the patient later dies. In the case of Narasimha Reddy and Ors. Vs. Rohini Hospital and Anr. I (2006) CPJ144 (NC), the National Commission held that when a patient could not be operated due to a critical condition, the doctor can not be held guilty of negligence if the proper course of practice is adopted and reasonable care is taken in administration of treatment. Consequently the Revision petition filed by the complainant was dismissed.
When a patient does not give a proper medical history, the doctor can not be blamed for the consequences. In the case of S. Tiwari vs. Dr. Pranav 1(1996) CPJ 301 (NC), it was alleged that a tooth was extracted without a proper test. When bleeding continued, the doctor administered a pain killer. Though the patient had a blood pressure of 130/90, he did not give the doctor his proper medical history. The National Commission upheld the findings of the State Commission and dismissed the complaint on the ground that the patient did not give a correct case history and follow-up when required.
Hospital is vicariously liable for any wrong claiming on the part of consultants. In the case of Ms Neha Kumari and Anr. V Apollo Hospital and Ors. 1 (2003) CPJ 145 (NC), the National Commission held that alleged medical negligence is not proved as the complainant suffered from complex birth defects of the spine and whole body as evidenced by a pre-operative CT scan. Two complaints were filed claiming a compensation of Rs. 26,90,000 alleging that while performing an operation (surgery) on the spinal canal, a rod was fitted inappropriately at the wrong level that resulted in the non functioning of the lower limbs. The Hon'ble commission held as follows:
“We do not find it is a case of medical negligence as alleged. Complaints have not denied that Neha Kumari was suffering from ailments from the very birth and that she was operated upon when she was only four years of age. On detailed investigations Neha Kumari was found to have multiple congenital complicated problems in Kiphoscoliotic deformity with weakness and wasting right upper limbs and (i) complex Khyphoscoliotic deformity of the mid dorsal spine with hemivertibrae of the D and D6 spinal levels and spinal bifida of the D and D7 vertebrae….Further filing of the appeal was delayed and no sufficient cause was shown to the satisfaction of Commission.
However, on the question of vicarious liability of the hospital for negligence on the part of the consultants, the Hon'ble Commission relying on the judgment in Basant Seth V Regency Hospital O P No.99 of 1994 rejected the contention of the hospital and held that the hospital is vicariously liable for any wrong claiming on the part of consultants.
Award of ex-gratia compensation against doctors and hospitals is not proper. The decision of the Supreme Court in the State of Punjab vs. Shiv Ram and Ors., IV (2005) CPJ 14 (SC) on a complaint alleging an unsuccessful family planning operation due to negligence of the doctor can be said to be an important milestone for many reasons. Firstly, the Supreme Court held that medical men and hospitals should not be saddled with damages unless they are found negligent. The apex court felt that awarding ex gratia compensation against doctors and hospitals without any findings on negligence is not proper. The court further held that there is a need for developing a welfare fund or insurance scheme. Failure of sterilization performed successfully is attributable to causes other than medical negligence and that the state government should think of devising and making provisions for a welfare fund or collaborating with insurance companies.
This judgment makes very pragmatic observations in the midst of several verdicts against medical professionals and hospitals especially when an award is made based on sympathetic considerations. It is heartening to note that the apex court looks at the issues relating to the medical profession and medical negligence in a holistic manner and with utmost consideration.
In a full bench decision dated August 25, 2005, Mr. Justice R.C. Lahoti, former C.J.I observed as follows: “Medical profession is one of the oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded, and the sick. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern the professional practice and is aimed at upholding its dignity. Medical ethics underlines the values at the heart of the practitioner-client relationship. In the recent times, professionals are developing a tendency to forget that the self regulation which is at the heart of their profession is a privilege and not a right and the profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public. It must always be kept in mind that a doctor is a noble profession and the aim must be to serve humanity, otherwise the dignified profession will lose its true worth.”
The apex court further held that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer can not be held liable for payment of compensation on account of unwanted pregnancy or child. A claim in tort is sustainable only if there was negligence on the part of surgeon in performance of a surgery or the surgeon assured 100% exclusion of pregnancy after surgery. Proof of negligence will have to satisfy Bolam's test. Cause of failure of the sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, by an X-ray examination, or by a pathological examination of the material removed at a subsequent operation of re-sterilization. The cause of action in the failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth-failure due to natural causes.
The apex court reaffirmed the above observations in the State of Haryana and Ors. vs. Raj Rani IV (2005) CPJ28 (SC) and held as follows: “Doctors can be held liable only in cases where failure of operation is attributable to his negligence and not otherwise. Medical negligence recognized percentage of failure of sterilization operation due to natural causes depending on techniques chosen for performing surgery. The pregnancy can be for reasons de hors any negligence of the surgeon. A fallopian tube that is cut and sealed may reunite and the woman may conceive though a surgery is performed. Neither can the surgeons can be held liable to pay compensation nor can the state be held vicariously liable in such cases. However, payment made by the state will be held as ex gratia payment and the money paid to the poor will not be recovered.”
Doctors were equated with God in traditional India. But, this doctor-patient relationship has altered substantively over time. There has been a rise in medical negligence cases with development of technology and convolution of medical procedures. COVID – 19 has increased medical interaction across the country. In such circumstances, the possibility of increase in petitions on medical negligence, for good or for bad, is not unforeseeable. The jurisprudence around criminal medical negligence is credited to the Supreme Court through 3 primary cases – Suresh Gupta,Jacob Mathew and Dr. Praful DesaiUnder tortious negligence a doctor may be asked to pay compensation and damages while under criminal negligence (sec. 304A, IPC) he may be awarded imprisonment or fine. There are 3 primary ingredients constituting negligence (i) duty of care (ii) breach of duty (iii) subsequent injury. For a case to qualify as criminal negligence there has to be either gross negligence or rashness endangering life. Culpable rashness is acting with the consciousness that mischievous and illegal consequences will follow, but with a hope against it and the belief that the actor has taken sufficient precautions to prevent it. [4] Culpable negligence is acting without any consciousness that illegal and mischievous consequences may follow. Every act of the doctor cannot be treated as criminal. When death occurs merely due to a misplaced judgment or an accident no criminal liability is attached. Inadvertence to a degree of care and caution, which isn't gross, only attracts civil liability. Bolam's test</i> determines the standard of care to be exercised by a medical practitioner i.e. standard practiced by a reasonably competent doctor exercising due care as per his qualifications.[5] A doctor cannot be held liable for the lack of care, error of judgment or accident until he follows the practice acceptable to the medical profession of that day. He cannot be held liable if he had a better alternative or if a more skilled doctor would have chosen another path. The standard is that of an ordinary person, possessing ordinary skill. This standard of care is as per the knowledge at the time of the incident and not when the trial is initiated. Where the doctor has some special skill or competence, negligence is not measured as per the man on the top of Clapnam Omnibus, but as per the standard of an ordinarily skilled professional.[6] Honest differences in opinions do not infer negligence. It is important to differentiate between medical accidents; diffusion of responsibility and culpable conducts. </p> <p> </p> <p>Doctors usually take a defence under sec. 80 and 88 of the IPC, contending that in surgical operations there is always a scope for an accident or misfortune, and the patient willingly runs the risk. Sec. 80 applies only when proper care and caution are taken. Breach of duty of care in negligence cases renders this defense inapplicable. Sec. 88 applies when the procedure is risky and the harm caused is a result of the risk. In surgeries where there is unidentified scope for extensive risk, this defense cannot be taken.</p> <p> </p> <p>Aggrieved parties may approach the court via a private complaint or through an FIR. A private complaint under medical negligence will be accepted by court only when the complainant has produced prima facie evidence by another equally competent doctor that the act or omission qualifies as gross negligence or recklessness. The investigating officer as well, before proceeding against the accused must obtain the opinion of an independent medical professional, preferably a government medical officer. A doctor is not to be routinely arrested unless it is quintessential to further investigation. [7]</p> <p> </p> It is pertinent to note that sec. 304A in itself does not mention the word 'gross'. It has been read by the judiciary into criminal negligence while differentiating it from the tort of negligence. The judiciary, with the development of jurisprudence on medical negligence has attempted to balance wrong done to the patient against autonomy of doctors. After Suresh Gupta, Jacob Mathew and Dr. Praful Desai the balance has tilted in the favour of the doctors. An extremely high degree of culpability is needed to hold a medical professional liable for criminal negligence. The rationale, arguably rightly, herein is if doctors were held criminally liable for everything that went wrong, they would be worried about their own safety rather than the patient's. COVID-19 being a novel disease to the world at large, resting primarily on the intellect, judgment and experience of doctors, successfully establishing criminal medical negligence in courts, in cases apart from those of a blatant lack of care by the hospitals or doctors (such as no ventilators or empty oxygen cylinders; with limited supply of ventilators, this too stands to be seen
Medical Negligence cases.
[1] Suresh Gupta v. Gvt. Of NCT of Delhi (2004) 6 SCC 422 https://indiankanoon.org/doc/650550/
[2] Jacob Mathew v. State of Punjab AIR 2005 SC 3180. https://indiankanoon.org/doc/871062/
[3] Dr. Praful Desai v. State of Maharashtra 2013 (4) SCC 60. https://indiankanoon.org/doc/93436383/ http://law.du.ac.in/uploads/1/4/2/0/14207972/2term_17113_evidence_2013.pdf
[4] V. Suresh and D. Nagasaila, PSA Pillai's Criminal Law, (9th edn.,2007).
[5] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
[6] J. Healy, Medical Negligence: Common Law Perspectives, (1999).
[7] Guidelines provided in Jacob Mathew v. State of Punjab AIR 2005 SC 3180.
http://law.du.ac.in/uploads/1/4/2/0/14207972/2term_17113_evidence_2013.pdf
https://www.lawteacher.net/cases/bolam-v-friern-hospital-management.php
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3579074/
1. Name of the case – Kusum Sharma & Ors vs Batra Hospital & Med.Research
Year of the case – 10th February, 2010
Principle – To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
2. Name of the case – Moni vs State Of Kerala
Year of the case – 4th February, 2011
Principle – The test for the medical practitioners 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. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms to one of these proper standards, then he is not negligent.
3. Name of the case – Tamil Nadu Siddha Medical vs Indian Medical Association
Year of the case – 11th February, 2011
Principle – In many cases, the complaints of medical negligence before the Consumer forum or criminal courts have been found fault with. In matters of criminal negligence, the Supreme Court has now held that such conduct must first be enquired into by experts in the field and then only the criminal court can deal with such matters. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky 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.
4. Name of the case – Dr. Kunal Saha vs Dr. Sukumar Mukherjee
Year of the case – 21st October, 2011
Principle – Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence/deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lump-sum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
5. Name of the case – Smt V.Madhavi W/O Venkataramana vs Dr.K.Thirupal Reddy & Ors
Year of the case – 21st December, 2012
Principle – A conspectus of the ratio in precedents would show that medical negligence on the part of treating doctor or hospital has to be determined on the touchstone of the principle laid in Bolam’s case. The guidelines provided for determination of medical negligence of a doctor or hospital indicates that in cases of gross medical negligence the principle of res ipsa loquitor can be applied and that a doctor or hospital can be found negligent in case of failure to exercise due care and reasonable skill if it does fell below that of the standards of a reasonably competent practitioner. The acts or omissions of the doctor or the hospital whether constitutes negligence depend upon the current state of knowledge of the doctor in medical science at which he treated the patient. The question of medical negligence is a mixed question of fact and law.
6. Name of the case – M/S.Vetri Medical Agency vs State Rep. By Inspector Of Police
Year of the case – 3rd December, 2013
Principle – While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. Illustration of Medical negligence cases is not exhaustive of all conditions which may warrant preliminary inquiry.
7. Name of the case – Suresh vs The State Of Tamil Nadu
Year of the case – 20th August 2014
Principle – Whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court than before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer 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 then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent and police officials are not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise, the policemen will themselves have to face legal action.
8. Name of the case – Dr. Sunita Verma vs Smt. Sangita Dubey & Ors.
Year of the case – 8th April, 2015
Principle – While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
9. Name of the case – Dr. (Mrs.) Indu Sharma vs Indraprastha Apollo Hospital
Year of the case – 22nd April, 2015
Principle – The corporate hospitals and Specialists, as might be expected, must perform at a higher level than other hospitals/ general practitioners. They, after all, represent themselves as possessing highest standard facilities and care; they also possess superior skills and additional training. The hospital charges and the doctor’s fees normally reflect this. No doubt that the compensation in medical negligence cases has to be just and adequate, that the medical professionals need to be accountable to a certain degree.
10. Name of the case – Dr. K.C. Vidyarthi vs The State Of Bihar Through The Director General of Police, Patna, Bihar.
Year of the case – 5th May, 2016
Principle – Impugned FIR instituted by the police is in complete disregard to the directions given by the Supreme Court in Jacob Mathew’s case as also in Lalita Kumari’s case, as the same was instituted straightway by the police on receipt of information regarding a cognizable offence under Section 304 of the Code without holding any preliminary inquiry and obtaining an independent and competent medical opinion from a doctor in that branch of medical practice.
11. Name of the case – Fortis Escort Hospital vs Amarjeet Singh
Year of the case – 22nd September, 2017
Principle – Before forming an opinion that expert evidence is necessary, the Fora must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the Members of the Fora without the assistance of expert opinion. No mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases, such remedy would be illusory.
12. Name of the case – Sagolsem Naran Singh vs Director, Rims And 3 Others
Year of the case – 9 April, 2018
Principle – In a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence.
13. Name of the case – C Rl. O. P.(Md) N O. 1 3 6 8 1 O F 2 0 1 8 vs The Superintendent Of Police
Year of the case – 5th July, 2018
Principle – Though Section 154 of the CrPC postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.
14. Name of the case – Dr. A.K. Gupta And Others vs State Of U.P. And Others
Year of the case – 12th October, 2018
Principle – Whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer 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 then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent.
15. Name of the case – Miss. Sunanda G. Barve vs Dr. Jayant S. Barve
Year of the case – 21st December, 2018
Principle – The complainant if fails to prove the medical negligence and deficiency in service, is not entitled to get the compensation. Where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint.
16. Name of the case – Vinod Jain vs Santokba Durlabhji Memorial Hospital & Anr.
Year of the case – 25th February, 2019
Principle – Any individual approaching such a skilled person would have a reasonable expectation of a degree of care and caution, however, there could be no assurance of the result. A physician thus would not assure a full recovery in every case, and the only assurance given by implication is that he possesses the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills with reasonable competence. Thus, a liability would only come, if: (a) either the person (doctor) did not possess the requisite skills, which he professed to have possessed; or (b) he did not exercise, with reasonable competence in a given case, the skill which he did possess. It was held not to be necessary for every professional to possess the highest level of expertise in that branch in which he practices.
17. Name of the case – Mrs. Swapnil Mishra vs Pushpanjali Healthcare
Year of the case – 27th May, 2019
Principle – A doctor cannot be allowed to misguide the patient just for earning money. He said that a doctor is also not expected to make the patient scared.
18. Name of the case – Smt Saroj Sharma vs Government Of National Capital
Year of the case – 28th May, 2019
Principle – The grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
19. Name of the case – Smt. Savitri Devi W/O Khani Lal vs State Of U.P. Thru Home Secy.
Year of the case – 30th May, 2019
Principle – Evidential principle intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
20. Name of the case – Pankaj R. Toprani & 3 Ors. vs Bombay Hospital And Research & Medical & 2 Ors.
Year of the case – 11th July, 2019
Principle – A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose,
1. He owes a duty of care in deciding whether to undertake the case,
2. He owes a duty of care in deciding what treatment to give and,
3. He owes 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.
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