HEALTH AND LAW
Medical negligence and
doctors' liability
Talha Abdul
Rahman
It is estimated that 98,000 people die
every year in the United States because of mistakes committed by medical
professionals (1). One can well imagine the figures in India. However, 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 behaviour' adopting the 'ordinary skills' and practices of
the profession with 'ordinary care' (2). There is, however, room for ambiguity,
and judicial interpretation as what is 'reasonable' and 'ordinary' is a question
of fact. Essentially, doctors are generally bound to exercise an ordinary degree
of care and not the highest possible degree of care. If a medical practitioner
has taken reasonable care, then he cannot be held liable. A mere difference in
opinion is not a ground for fastening liability on doctor (3).
Doctors'
duties to their patients are clear. They must decide whether or not to undertake
the case; they must decide what treatment to give, and they must take care in
the administration of that treatment (4). A breach of any of these duties
gives the patient a right to action for
negligence.
Liability under the Consumer Protection
Act
In 1995, the Supreme Court decision in Indian Medical
Association v VP Shantha brought the medical profession within the ambit of a
'service' as defined in the Consumer Protection Act, 1986 (5). This defined the
relationship between patients and medical professionals as contractual. Patients
who had sustained injuries in the course of treatment could now sue doctors in
'procedure-free' consumer protection courts for compensation.
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 (which are
excluded from the Consumer Protection Act). They are contracts for service,
under which a doctor too can be sued in Consumer Protection Courts.
A
'contract for service' implies a contract whereby one party undertakes to render
services (such as professional or technical 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 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.
Liability under tort law
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, 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 (6). Such cases of negligence may
include transfusion of blood of incorrect blood groups (7), leaving a mop in the
patient's abdomen after operating (8), unsuccessful sterilisation resulting in
the birth of a child (9), removal of organs without taking consent (10),
operating on a patient without giving anaesthesia (11), administering wrong
medicine resulting in injury (12), etc.
Liability under criminal law
In
certain cases, negligence is so blatant that it invites criminal proceedings. A
doctor can be punished under Section 304A of the Indian Penal Code (IPC) for
causing death by a rash or negligent act, say in a case where death of a patient
is caused during operation by a doctor not qualified to operate. According to a
recent Supreme Court decision (13), the standard of negligence required to
be proved against a doctor in cases of criminal negligence (especially that
under Section 304A of the IPC) should be so high that it can be described as
'gross negligence' or 'recklessness', not merely lack of necessary care.
Criminal liability will not be attracted if the patient dies due to error in
judgment or accident. Every civil negligence is not criminal negligence, and for
civil negligence to become criminal it should be of such a nature that it could
be termed as gross negligence.
Very rarely can a doctor be prosecuted for
murder or attempt to murder as doctors never intend to kill their patients, and
hence do not possess the required level of guilty intention. When doctors
administer a treatment involving the risk of death, they do so in good faith and
for the patient's benefit. A doctor can also be punished for causing hurt or
grievous hurt under the IPC. However, Sections 87, 88, 89 and 92 of the IPC
provide immunity from criminal prosecutions to doctors who act in good faith and
for the patient's benefit. But the defence must prove that the doctor acted in
good faith and for the patient's benefit. For example, a doctor who consciously
or knowingly did not use sterilised equipment for an operation cannot be said to
have acted in good faith.
Conclusion
The very nature of
the medical profession makes it vulnerable to civil and criminal suits. Many
suits are filed to harass doctors, or are filed to evade the payment of bills.
In the post V P Shantha era it is difficult for doctors to shun responsibility.
It is also easier for people to force negligent doctors to Consumer Protection
Forums.
It is important to punish guilty doctors. It is also important to
protect doctors who act in good faith from harassment. The courts must strike a
perfect balance. The Supreme Court (14) once observed that the doctor's job is
to protect life and the courts should assist in this cause as far as possible.
It is also the duty of the courts to see that doctors are not harassed in the
course of performance of such duty.
References
1. Kalantri S P.
Medical errors and ethics. Indian J Anaesth 2003; 47: 174-175.
2.
Kataria Mrityunjay, Kataria Prashant. Medical negligence: criminal
liability of the doctor and establishment. Cri L J 2003; 11 (SC) Journal
1.
3. Santosh Kumar Sodhi v. Dr Vijay Maroo I (2003) CPJ 344
4.
L B Joshi (Dr) v. T B Godbole (Dr) AIR 1969 SC 128,131
5. Indian
Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651
6.
Philips India Ltd. v. Kunju Pannu AIR 1975 Bom. 306
7. Kalra
Satyanarayana v. Lakshmi Nursing Home 1 (2003) CPJ 262
8. Achutrao
Haribhao Khodwa v. State of Maharashtra (1996) 2 SCC 634
9. State of
Haryana v. Smt Santara AIR 2000 SC 1888
10 Lakshmi Rajan v. Malar
Hospital III (1998) CPJ 586
11. P N Rao v. G Jayaprakasu AIR 1950 AP
201
12. Spring Meadows Hospital v. Harjol Ahluwalia AIR 1998 SC
1801
13. Suresh Gupta (Dr) v. Govt. of NCT of Delhi (2004) 6 SCC
422
14. Paramananda Katara v. Union of India (1989) 4 SCC 286
