Medical Negligence

INCRAA1st Feb, 2009

AIIMS, New Delhi

Karnika SethManaging Partner

SETH ASSOCIATES All rights reserved © SethAssociates2009

ADVOCATES AND LEGAL CONSULTANTS

Medical profession within the ambit of the CPA

In 1995, the Supreme Court decision in Indian Medical Association vs. V.P Shantha (1995)6 SCC 651 brought the medical profession within the ambit of ‘ service’ as defined in the Consumer Protection Act, 1986. This defined the relationship between patients and medical professionals as contractual.

Section 2(1) (o) CPA : “service” is defined under the CPA as service of any description which is made available to potential users and includes but not limited to the provision of facilities in connection with banking, financing, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or purveying of news or other information but doesn't include the rendering of any service free of charge or under a contract of personal service.”

Nature of medical services within purview of CPA

All kinds of services rendered by medical practitioners except where such services are rendered free of charges to all and under contract of personal service comes within ambit of “service” under CPA.

Contract of personal service cannot be assumed in absence of relationship of master and servant.

Hospitals where medical services are rendered free of cost to all -held not within purview of CPA. Payment of token charges will not alter nature of services rendered by such hospitals.

Wherever charges are collected from those patients who are able to pay- those hospitals are covered under the Act.

Duties of a medical practitioner in law

Laxman Balkrishna Joshi v Trimbak Bapu Godbole and anr MANU/SC/0362/1068 it was held-

Implied undertaking that the doctor is possessed of skill and knowledge for giving medical advice and treatment.

Duty of care in deciding whether to undertake the case

Duty of care in deciding what treatment to give

Duty of care in administration of treatment

Three ingredients of Tort of Negligence

A breach of any of these duties gives a right of action for negligence to the patient- A civil action for tort of negligence

To establish Tort of negligence three ingredients are essential-

X owed a Duty of care to Y X’s acts or omissions constituted

breach of those duties Leading to an injury or damage to Y Must be shown that there was a

causal link between the breach of duty and harm.

it must be shown that the harm was not too remote.

Deficiency in services under CPA

Section 2 (1) (g) CPA defines ‘deficiency in service ‘ as any fault , imperfection, shortcoming, or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

A determination about deficiency in service for the purpose of Section 2 (1) (g) is to be made by applying the same test as is applied in an action for damages for negligence.

‘Consumer’ defined under Section 2 (1 ) (d) ii means a person who hires or avails of any service for a consideration which has been paid or partly paid and partly promised , or any beneficiary of such services with his prior approval but does not include a person who avails the services for any commercial purpose.

Complainant under under Section 2 (1)b means a consumer, any voluntary consumer association, Central government or State government, one or more consumers & incase of death of a consumer, his legal heir or representative

The BolamTest

The standard of care which is required from a medical practitioner as laid down by McNair J in Bolam v Friern Hospital Management Committee (1957)1 WLR 582-

“ the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess 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 article.”

Issue of informed consent

In addition, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] AC 465 created the rule of "reasonable reliance" by the claimant on the professional judgment of the defendant.

"Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.“

Bolam applies to all the acts and omissions constituting diagnosis and consequential treatment, and Hedley Byrne applies to all advisory activities involving the communication of diagnosis and prognosis, giving of advice on both therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain informed consent.

CPA and redressal forums.

To provide a simple, speedy and inexpensive redressal of consumer grievances, the Act envisages a three-tier quasi-judicial machinery at the national, state and district levels.

These are: National Consumer Disputes Redressal Commission known as National Commission, State Consumer Disputes Redressal Commissions known as State Commissions and District Consumer Disputes Redressal Forum known as District Forum;

 At present, there are 34 State Commissions, one in each State/UT and 571 district fora besides the National Commission.

Pecuniary jurisdiction criteria

Procedural matters

Period of limitation A complaint is only admitted by any of the competent

forums under CPA if it is filed within two years from the date on which the cause of action has arisen.

Procedure to file a complaint A complaint can be filed in a District Forum or as per

pecuniary jurisdiction in another forum within local limits of whose jurisdiction the opposite party or any of the opposite parties resides or carries on business, or has a branch office or personally works for gain.

Procedure followed by consumer courts

Consumer courts proceed to settle disputes as per Section 13(2) (b)-(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where opposite party denies or disputes the allegations contained in complaint (ii) or on basis of evidence brought to its notice by complainant where opposite party omits or fails to take any action to represent his case within the time given by the forum.

By virtue of Section 13(4) of CPA- District forum has the same powers as are vested in the civil court under code of Civil Procedure while trying a suit

Vicarious liability

In case of Cassidy v Ministry of Health 1951 (2) K.B 343 and later in Gold and ors v Essex county council .1942 2 All ER 237 it was held that a hospital authority is liable for the negligence of doctors and surgeons employed by authority under a contract of service/contract for service arising in course of performance of their professional duties.

If the patient has suffered an injury in circumstances, which are explicable only as being attributed as negligence on part of the doctor, the maxim Res Ipsa Loquitur (thing speak for itself) may be applied. The patient is then entitled to succeed unless the doctor can bring evidence to rebut the possibility of negligence The doctrine may be used where1) the accident is of a kind which ordinarily does not occur in the absence of negligence, 2) the apparent cause of the accident being within the control of the defendant 3) and the plaintiff could not have contributed to it.

Non-Allopath practicing Allopathy

If a person practices medicine without

possessing either the requisite qualification or

enrolment under Indian Medical Council Act,

1956, he/she becomes liable to be punished

with imprisonment or fine or both

The Hon’ble Supreme Court in Poonam Verma

Vs A. Patel & Ors: I (1996) CPJ 1 (SC)

Criminal liability for medical negligence

In Dr. Suresh Gupta vs Govt of NCT of Delhi AIR 2004 SC 4091, it was held that where a patient dies due to negligent medical treatment of the doctor ,the doctor can be made liable in civil law for paying compensation and damages in tort and at the same time, if the degree of negligence is so gross and his act was reckless as to endanger the life of the patient, he would also be made criminally liable for offence under Section 304 A of IPC.( reliance placed on R v Adomako (1994) (3)All ER 79).

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