MEDICAL NEGLIGENCE: REMEDIES AVAILABLE TO THE PATEINTS UNDER VARIOUS LAWS

ABSTRACT

A patient goes to a medical practitioner in order to seek treatment for any problem that they have been facing. However, the human body has a complex mechanism and sometimes the treatment for every problem is not available. After all, a doctor too is a human, and it is not possible that they never make any mistakes. But, if in a situation where a treatment is available and due to some rash decisions made by the doctor or the hospital, an injury occurs, the patient must have some rights that they can exercise to seek remedy which may be in the form of compensation or punishment.

KEYWORDS

Negligence, Duty of care, Tort, Consumer Protection Act

INTRODUCTION

Irrespective of the time and place, each society and civilization have an institution of healthcare. Medicine is considered a noble profession and is now an established system that is governed by rules and regulations. However, just like any institution this too, has its problems, one of them being that of medical negligence. The profession of doctors is such that it requires them to exercise extra caution. Medical negligence is when doctors don’t exercise the due care that is expected of them, and this omission results in damage to the patient. While the problem itself is nothing new, but with the growing institutionalization of healthcare and healthcare facilities, there is a need for new laws regarding such violations of duty to protect the rights of the patients. While the legislation for medical fraud and negligence are lacking, they are not totally absent. The patients can seek redressal under both civil and criminal mechanisms. In addition to this victim can also file a complaint in the State Medical Council that can act in the form of suspension or cancellation of the license of the doctor. The Consumer Protection Act also contains certain provisions regarding negligence on the part of the doctor as the doctors have a duty of care towards their patients. The Indian Penal Code, 1860 also states that if a person’s negligent conduct has caused a threat to human life, and if the ‘mens rea’, i.e., the mental element of the crime can be proven, the doctor will be liable under this act. However, this branch of law is still very underdeveloped and has a vast scope for development. Thus, this paper seeks to analyze the provisions contained under various acts and branches of law, as well as identify the places where the need for new legislation exists.

RESEARCH METHODOLOGY

This paper uses the doctrinal method of research and is primarily structured upon secondary sources of information. It makes use of the various statutes governing the concerned areas involved in the paper along with the judgements passed by the Courts of India. Some material has also been picked up from different textbooks and coursebooks along with online websites, that contain information about the topics covered. Various judgements were studied, and the relevant parts were selected and included in this paper.

REVIEW OF LITERATURE

A patient always goes to the doctor with the assumption, that they are an expert in their field and will always exercise a given standard of care while dealing with their patients. They assume of rationality and due care on the part of the doctor.

It has been stated In Halsbury’s Law of England^[1] that a person who believes himself capable of giving medical advice or treatments impliedly undertakes that he has the skill and knowledge for the purpose. Thus, this person, irrespective of whether he is a registered practitioner or not, owes certain duties of care to the patient.

Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case a duty of care in deciding what treatment to give, and a duty of care in his administration of that treatment. A breach of any of these duties will be a ground for an action for negligence by the patient. These duties are:

Duty of care while deciding whether to undertake the case or not
Duty of care while deciding what treatment to give
Duty of care while administering the treatment

Dr. H.S. Mehta in Medical Law and Ethics^[2] states that it is natural for Courts of law to take into account expert medical evidence to ascertain whether negligence that has been alleged against a medical practitioner or a medical institution has actually taken place. The cardinal test for determining the existence of negligence is whether a reasonably competent man would have acted in a similar fashion or not.

WHY DOES MEDICAL NEGLIGENCE OCCUR?

There is no exact reason as to why medical negligence, it may be caused due to a variety of factors. However, it is punishable when a medical practitioner undertakes a case knowing they do not possess the capability to deal with it or when they do not exercise due care and caution that is expected from them.
The one scenario that has been time and again emphasized upon by various judges, is when no actual negligence has taken place, but the patient or the family of the patient puts the blame on the doctor. This is due to the human nature that convinces people that bad outcomes are the result of some external factors, in this case, the doctor or the hospital.

Therefore, negligence has to be carefully determined after considering the circumstances at the time of procedures and after due consultation with experts of that specific field.

The aggrieved party can file a complaint under the State Medical Council. This complaint must contain the facts and circumstances of the case. The accused will be given a period of thirty days to file a reply, based on which the council will decide whether to take up the matter or not. The Council, however, has limited power and can only cancel or suspend the registration of the medical practitioner and not award any compensation. Therefore, the need arises to have some laws regarding protection of patients.

MEDICAL NEGLIGENCE AS A CIVIL WRONG

Medical negligence as a civil wrong is covered under both contract and tort branches of law. In the case of R. v. Bateman^[3], it was held that when a person is consulted and they show themselves to be in possession of knowledge and skill to treat a patient, there is no need for a contract between the doctor and the patient, nor is reward necessary, however a certain standard of care and competence must be present. If the death of the patient is caused by the gross negligence of the practitioner, they cannot be measured by any standard lower than what is applied to a qualified man. The duty of a medical practitioner arises because an act has been that is likely to cause physical damage unless done with proper skill and caution. A defendant will be liable for negligence unless he shows that he took proper care and acted in accordance with the general and approved practices.

A tort is a civil wrong and the right available is right in rem, but the remedy available is right in personem. This implies that the right can be enforced against the world at large but only the plaintiff received damages.

Negligence as defined in the case of Blyth v Birmingham Waterworks Co^[4] is:

“Negligence is the 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.”

The essentials of negligence as defined under tort law are there is a duty of care owed to the plaintiff, that there was a breach of such duty of care, and finally that this breach resulted in some legal damage. The damage must be legal and not merely some moral or social wrong.

In order to prove that the doctor has been negligent, the plaintiff must prove that there has been negligence on the part of the doctor. The degree of care that is expected of a medical man need not be exceptionally high nor exceptionally low, but an amount that is reasonable in the light of particular circumstances, A difference in opinion, or in the manner of operation and treatment of patient between experts in the same field is therefore not a valid ground for negligence as has been decided in the case of Bolam v. Friern Hospital Management Committee^{^[5]} wherein it was held that a test for the standard of care is determined by the conduct of the doctor. If the doctor acted in a manner that is consistent with what is expected from them, something that a prudent man with reasonable skill and medical expertise would have done at that time, it would not be a case of negligence.

In another case, it was held that the plaintiff must show some actual damage while claiming that the doctor was negligent. If there is no actual loss or injury, the doctor will not be liable, and the claim will be dismissed.^[6]

MEDICAL NEGLIGENCE AS A CRIMINAL WRONG

Medical negligence does not just fall under the purview of civil wrongs but also criminal wrongs. A crime is a wrong against society as a whole because of the existence of a social contract. This implies that there is always an implied social contract between the citizens and the state wherein the people give up their freedom and allow themselves to be governed by the law. Thus, when medical negligence takes place, it causes a breach of this contract, and the responsibility falls on the state to protect the citizens.

Unlike civil wrongs, where the aim is restorative in nature, which is usually done by providing monetary compensation, the aim of criminal law is punitive in nature; to punish the wrongdoer.

In the case of Jacob Mathew v. State of Punjab^{^[7]}, the case was filed in the court under Section 304A read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC). Section 304A contains provisions regarding death caused by negligence. According to this section, any person who through his negligent conduct causes the death of any person not amounting to culpable homicide is to be punished by either imprisonment for a term which may extend up to two years or with a fine, or with both. Section 34 contains provisions regarding acts that have been done with several persons in furtherance of common intention. In such cases, each person is liable for that act severally.

Lord Diplock in the case of R. v Lawrence^{^[8]} explained the ‘concept of recklessness as constituting mens rea in criminal law’.

“Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences.”

The term recklessness, therefore, implies that the doer has failed in either giving any thought to the possibility of risk or has foreseen the risk, but does the reckless act, nonetheless.

Usually, the extent of liability under tort is determined by the amount of damages incurred, but in criminal law, it is the degree of negligence that determines the liability. Lord Atkin in one of his speeches, attempted to differentiate between the civil and criminal liability of negligence. According to him, for the purpose of criminal liability, the negligence must be of a very high degree and not just mere lack of care. In another case,^[9] it was held that negligence under criminal law must be culpable and gross and not negligence merely based upon an error of judgement.

In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors.^[10], the court held that the skills of each doctor are different in nature and different courses of treatment are available. A doctor cannot be held liable for negligence so long as he is performing to the best of his ability with due care.

MEDICAL NEGLIGENCE UNDER CONSUMER PROTECTION ACT

A patient, just like any other consumer, makes use of the services of the doctors. However, there is always a great risk that is always attached to being a consumer. Defective services, unfair practices, and fraudulent conduct being the most prevalent of them. A consumer is anyone to whom a service is rendered for a consideration or any beneficiary who avails the benefit of the service. Under The Consumer Protection Act, 2019 (hereinafter referred to as COPRA), the courts have the jurisdiction to hear complaints under deficiency of service and unfair trade practices.

Section 85 of the COPRA states that a service provider will be liable in a product liability action when the:

Quality, nature, or manner of the service is inadequate than what is required to be provided
There is an omission or commission or negligence or conscious withholding of any information which causes harm
The service provider did not give instruction or warning to prevent any harm
The service was contrary to the terms and conditions of the contract

In the case of Indian Medical Association v. V.P. Shantha and Ors.^{^[11]}, the question that arose was whether the medical practitioners ‘render service’ or not, and therefore can they be sued under deficiency of service. The Court held that “medical professionals do not enjoy any immunity from being sued in contract or tort on the ground of negligence.’

In the case of Martin F. D’ Souza vs Mohd. Ishfaq^{^[12]}, the Consumer Forum held that whenever a complaint is received against a doctor or a hospital, the matter should first be consulted with an expert committee as the Courts are not well versed in the medical procedures. This is necessary so as to ensure the protection of doctors from harassment.

CHARTER OF PATIENT RIGHTS

A charter of patient rights was introduced under the flagship scheme of India, Ayushman Bharat which was launched on the recommendation of the National Health Policy 2017. The motto of this scheme is to deliver ‘Quality Healthcare”. This is a historic move to guarantee rights to patients across all hospitals in India. This charter is adopted from the National Human Rights Commission and international patient charters. It enumerates 9 rights that will be available to the patients:

Right to access medical care
Right to information
Right to records and reports
Right to confidentiality, human dignity and privacy
Right to second opinion
Right to safety and quality care according to standards
Right to proper referral and transfer & continuity of care
Right to informed consent
Right to redress

MEDICAL NEGLIGENCE IN OTHER COUNTRIES

The Secretary-General United Nations in 1983 submitted a draft for guidelines regarding Consumer Protection to the United Nations Economic and Social Council. These guidelines are:

Maintaining adequate facilities for consumers
To cater to the needs and the distribution pattern of the consumers
To engage in ethical conduct while providing goods and services
Reducing corruption
International cooperation in the field of consumer protection
Development of consumer groups

United States of America

The USA operates on the Informed consent model, wherein the patient must be provided with all the necessary information regarding the procedure they have to go through, and the risks involved in it. This procedure incorporates more autonomy as a patient is allowed to take some decisions themselves. The doctors will be liable for negligence if they have not provided the full information to the patient. According to the Journal of the American Medical Association, medical negligence is the third leading cause of death in the USA.

United Kingdom

In the UK, the paternalistic model of the physician-patient relationship is followed. Herein the Bolam guidelines apply which state that the doctor will not be said to be negligent unless he acts in a matter that is not in accordance with the reasonable standards of care. Nonetheless, the law is an evolving field and the Bolam test is now not the only basis on which a case is decided. The National Health Service Litigation Authority in the UNK is a special authority that handles both clinical and non-clinical cases of negligence. The disputes are, on average resolved within 1.25 years of filing

United Arab Emirates

The theory of tort law is applicable, which states that any person who causes harm to another will be responsible for the loss or injury caused due to their conduct.

Article 3 of the Federal Decree Law 4 of 2016 states that all medical practitioners should perform their duty with honesty and accuracy. According to Article 8, his academic qualifications must be in accordance with the stipulated ones.

At the federal level there exists a constitutional framework that provides for healthcare facilities. However, the bigger and more developed cities have their own health authorities. Some other middle east countries like Bahrain and Oman have criminalized medical negligence.

SUGGESTIONS

India, as a country is severely lacking in medical facilities. The government hospitals, which receive the most patents due to low costs, have old and poor-quality facilities. Also, due to the very large number of patients, the doctor-patient ratio is very skewed which means that the doctors are overburdened which adversely affects the quality of their services. There is also no set hierarchy and rules which govern the conduct of the doctors in the hospitals. All these factors contribute to the increasing cases of negligence.

Another problem is that unless some legal damage is proven, the doctor will not be held liable for their misconduct, and even if they are, the penalties or compensation that have to be provided by them is very low and thus does not act as a deterrent.

Along with all these factors, a large amount of the Indian population is uneducated and thus are not even aware of their rights and the means to enforce them. The judiciary too is overburdened which leads to a long litigation period that inadvertently causes higher litigation costs. Thus, most people prefer not to file cases.

To improve the situation, incentives should be provided to the medical practitioners so that they perform better. A productivity-based system would work better as the doctors too, will attempt to do their best.

Setting up forums specifically governing the cases relating to this field, will result in faster dispute resolution and lower costs of litigation, which will allow people to seek redressal. Also, an expert committee should be present as the judges are not well versed in every field. There should also be clear rules and regulations regarding the duties that must be performed by the medical practitioners at various levels.

CONCLUSION

Medicine is one of the most important fields, and every person at some point in their life will consult a medical practitioner. Thus, it is necessary that proper laws are available to protect the people from their misconduct. Under the Constitution of India, every citizen is guaranteed the Right to Life as a fundamental right under Article 21. This includes the right to health and medical treatment. This protects the right of people to live their life with dignity and without exploitation. There will always be a risk when someone approaches a doctor for some treatment despite the due care that has been exercised by them. However, when an injury occurs due to the misconduct of the doctor or the hospital, and such injury was of foreseeable nature and would not have occurred had it not been for the misconduct, the doctor or the hospital will be liable.

REFERENCES

Shivangi Mathur
University School of Law and Legal Studies
Guru Gobind Singh Indraprastha University

[1]Halsbury’s Law of England, 17 (4^th ed. 1907)

[2] Dr. H.S. Mehta, Medical Law and Ethics in India 209 (1963 ed)

[3] R. v. Bateman, (1925) 94 LJ KB 791,

[4] Blyth v Birmingham Waterworks Co, (1856) 11 Ex Ch 781

[5] Bolam v Friern Hospital Management Committee (1957) 1 WLR 583

[6] Sidhraj Dhadda v State of Rajasthan AIR 1994 Raj 68.

[7] Jacob Mathew v. State of Punjab, AIR 2005 SC 3180

[8] R. v Lawrence (1981) 1 All ER 974 (HL),

[9] Syad Akbar v. State of Karnataka, AIR 1979 SC 1848

[10] Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634

[11] Indian Medical Association v. V.P. Shantha and Ors, AIR 1996 SC 550

[12] Martin F. D’ Souza vs Mohd. Ishfaq, AIR 2009 SC 2049

MEDICAL NEGLIGENCE: REMEDIES AVAILABLE TO THE PATEINTS UNDER VARIOUS LAWS

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