MEDICAL NEGLIGENCE: An apple a day, couldn’t keep the doctor away?
A doctor- patient relationship is based on blind trust. A patient places his faith and confidence in hands of his doctor with an undoubted belief that he will take reasonable care and provide faultless medical assistance for his ailment. When this kind of profound belief is crushed, due to a negligent act of the doctor, it gives rise to litigation.
A negligent or careless act by a healthcare professional or a healthcare service provider amounts to medical negligence. Negligence here refers to an act of a doctor who, on the account of being careless, commits an act which ends up harming/hurting the patient and would have been avoided if he had been careful and prudent while providing medical service. Some common instances of medical negligence include-
- Administering the wrong dose of anaesthesia thereby putting the patient in a critical condition;
- Giving wrong prescriptions to patients;
- Providing insufficient care or failing to provide any care to the patient.
- Causing complications in surgery, procedural methods.
In such a scenario, it becomes the right of the affected consumer to sue the medical service provider.
Do you get shivers at the sight of High Court and Supreme Court? Do you get desperate when the case goes on for years? Yet, you want to file a case on medical negligence. The best place for you is the Consumer Protection Court. This court has the power to provide you remedy by way of compensations.
Nevertheless, not all medical negligence cases can be admitted herein. First of all, a doctor have three main duties as per the Consumer Protection Act :-
- The duty on deciding whether to undertake the case
- Duty while selecting the treatment
- Duty while administering the treatment
Now, once your doctor fails of any of these duties, you are eligible to come before this forum. Consumer Courts gives remedies for the deficiency of goods/services only. In Indian Medical Association vs. V. P. Shantha & others (1986), the court had allowed the medical care to be regarded as a service. Under the Act, the important condition for a service is that it should be bought for a consideration and should not be given free for the public. Services free of charge are not covered as ‘service’ under the Act.
Government hospitals and other institutions, where the medical care is made free for only a particular a section of the society or where only registration token is charged, is qualified to be sued under the Act.
Thus, if the above conditions are fulfilled, the consumer court has the jurisdiction to entertain your claim. The remedies are mostly granted in the form of compensation. Generous remedies can be sought here. Complaints that exceed 20 lakhs should be filed in the State Commission and those which exceed one crore should be filed in the National Commission.
Doctors are treated to be equivalent to God. Commonly, it is said that after God, doctors are the only people who can save our lives, but what if this life saver is negligent in his act? During the last few decades plenty of cases have been reported, where patients have suffered due to the negligence and inadvertent conduct of doctors. Constantly increasing number of legal disputes between the doctor and patients has led to formulation of multifarious rules and regulations to deal with such insouciance conduct of doctors. Therefore, any mistake on the part of the medical negligence will be treated as either a tort of negligence or a deficiency in services under Consumer Protection Act, 1986 (COPRA).
What is Medical Negligence?
Death resulting from failure during operation and side effects does not constitute negligence if the doctor has taken all necessary precautions during treatment. A doctor is not to be held negligent simply because something went wrong. The term negligence is defined as the absence or lack of care that a reasonable person should have taken in the circumstances of the case.
Who can file a consumer complaint?
A consumer or any recognized consumer association can file a consumer complaint under COPRA. A consumer means a person who hires or avails of any services for a consideration but does not include a person who avails such services for any commercial purposes. A patient or the family members can file a complaint against the doctor or hospital.
What is a complaint?
A complaint is an allegation in writing made by a Complainant, i.e., a consumer that he or she has suffered loss or damage as a result of any deficiency of service.
What is deficiency of service?
Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that 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.
Where is a complaint filed?
Depending upon the value of the services and compensation claimed a consumer complaint can be filed in any of the following-
|District||Claims less than 20 Lakhs|
|State||Claims between 20 Lakhs to 1crore|
|National||Claims exceeding 1 crore|
Medical Profession is one of the oldest professions and is considered to be the most sacred and humanitarian one.
Negligence is defined 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, lack of duty to care along with legal protection against such lack, constitute medical negligence.
The pivotal question to consider here is can after the death of the person, his family member or legal representative institute a claim. It was held in the land mark case of Cosmopolitan Hospital Pvt. Ltd. and Anr. v. Vasantha P.Nair and Cosmopolitan Hospital Pvt. Ltd. v. V.P.Santha and Ors., that in case of death of a patient legal heirs of the deceased have locus standi to file complaint under the Act and they are held to be "consumers." The case by the legal heir is filed in the same way as it would have been filed by the consumer.
Also there is no bar in claiming compensation by the legal heir, in fact in the landmark caseof Kunal Saha v. Dr. Sugumaran Mukherjee highest compensation has been paid. This case was filed by the husband on the death of his wife.
The only point that needs to be proved by the legal heir is that the suffering or death of the patient was result of the negligence on the part of the doctor as held in Philips India Ltd. vs. Kunju Punnu.
To constitute any kind of negligence, there are 3 basic ingredients which need to be satisfied:
- That the service provider had a duty to provide adequate care to the patient.
- That he failed to provide such care
- The patient suffered injury due to such negligence.
When this duty of care, breach of duty and injury takes place in a doctor-patient setting, it’s termed as ‘medical negligence’.
When does a duty arise?
Usually when you go to a hospital, you enter into an agreement or sign a contract with the hospital which gives rise to a doctor’s duty to serve and cure the patient. In any case, given the nature of the doctor-patient relationship, the court and the ethics of the medical profession impose a duty on doctors or medical care providers to extend their services with due expertise and diligence.
What is the nature of the duty owed?
The Supreme Court has explained duty stating that a doctor should bring to his task reasonable skill and knowledge and should act in a manner exercising a reasonable degree of care.
What is “reasonable degree of care”?
It is the degree of care and skill that an ordinary competent member of the profession who professes to have those skills would exercise in the given circumstances. The degree of care varies according to the situation, thus in court cases, the court calls upon experts to testify whether the doctor has exercised “a reasonable degree of care”.
What type of breach gives rise to injury and subsequent liability?
Liabilities arise when the patient has suffered an injury because the doctor failed to provide adequate or reasonable care to his patient. A doctor is only liable for injuries which are a consequence of the breach of duty.
Thus, you have to prove- first, the doctor had a duty towards you. Second, you will have to show what was the ‘reasonable degree of care’ in those circumstances and that the doctor acted below the threshold of reasonability; third, that your injury resulted as a consequence of misconduct of the doctor.
The doctors, being especially skilled, are evaluated according to the standard of an ordinarily skilled doctor rather than the “reasonable man” test.
Nevertheless, law acknowledges that each person has his own freedom and style of medical treatment and opinions. Therefore, only when the doctors depart from the ordinary due care that is required to be undertaken, it results in medical negligence on their part.
There are many kinds of medical negligence that can occur. Firstly, ‘misdiagnosis’ is a kind of negligence where the doctor errors in diagnosing a disease. A mere misdiagnosis cannot be termed as negligence and it must be evident that there is a lack of prudent care and diligence in diagnosing the disease by the doctor. Secondly, if there has been a ‘delayed diagnosis’ due to the fault of the doctor i.e. he failed to diagnose the ailment at the correct time and this significant delay caused further harm/ injury to the patient.
The most notorious medical negligence is that of surgical error. Surgical error can include unintentional laceration, anaesthesia overdose, leaving foreign object in body or even operating on a wrong body part. There are also cases where the doctors suggest unnecessary surgeries for earning extra profits. The doctors however will only be held liable for negligence in taking thorough care. A doctor cannot be liable for a death during surgery if he uses his skills and proper care while operating. Another window through which medical negligence can sneak in is where a ‘long-term treatment’ is undertaken. If the doctor errs in proper follow-up of the patient, i.e. if he misses to give timely dose or omits to study patient’s medical history while prescribing medicines.
Irrespective of the theoretical discussion on the types of medical negligence, what ought to be seen is that whether the doctor had failed to use his skills and expertise or made an error to take prudent and timely care of his patient.
Situations which are medical services under the Consumer Protection Act
- Medical services rendered by a medical professional for consideration, which could be in any form, such as diagnosis or medical treatment. Note that you cannot file a complaint against a doctor who provides his services completely free of cost since that does not fall under the ambit of “service”.
- If a hospital provides two types of services, one where people pay a consideration and the other, where poor people are not charged any consideration for services. In such a situation, the hospital will be liable towards both set of patients, those who pay as well as those to whom services are rendered free of cost.
- Medical services rendered by any Government hospital or dispensary when you pay for any service or medicines.
- Where medical services are rendered by a Government hospital or dispensary for charge as well as free of cost, it is be liable in both cases
- In cases where an insurance company has borne the cost of the treatment, the doctor or the hospital is still liable. This would amount to ‘service’ as the treatment costs are covered by insurance and it is not ‘free of charge’.
- Where by virtue an agreement of service, an employer takes care of the medical expenditure of an employee, the doctor or the hospital will be liable and it would not fall under the category of “free of charge”.
Situations which are not medical services under the Consumer Protection Act
A medical practitioner or a hospital, whether it is private or government hospital that provides medical services free of charge cannot be made liable under the Consumer Protection Act. Even if such practitioner or hospitals charge a token amount for registration, it is still “free” and is not a medical service for the purposes of the Act.
Let’s say that the doctor left the pair of scissors in your stomach during the surgery. You did get the scissors out of the stomach, for obvious reasons, but how do you sue him?
Medical negligence is a subset of negligence and there is a remedy for negligence in torts. You can sue the medical practitioner or hospital under civil liability for compensation. Compensation is awarded to restore the patient in position as he would have been before such negligence.
What if a small error turned out to be fatal and harmed your life? Who is to be held responsible and how? It is for these circumstances that the court acknowledged the necessity of the criminal liability of doctors or hospitals on medical negligence. Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 are the relevant sections against medical negligence. Out of these, the most serious one is Section 304A for causing the death by rash and negligent act. This Section is applied only in the extreme cases where the medical negligence has endangered the life of the patient.
It was in the case of Indian Medical Association vs. V. P. Shantha & others (1986) that the court allowed the consumer protection jurisdiction to take cases of medical negligence. Medical care is now recognized as a service under the Consumer Protection Act. Therefore, as per the Act any person can approach the court in case of medical negligence as deficiency of service. Medical negligence is undoubtedly, a deficiency in the service as there is a lack of proper care and diligence by medical practitioners. Nevertheless, there are a few more considerations for attaining eligibility of a consumer. The service should be for a consideration and not free of cost.
A word of caution: The burden of proof still resides on the patient to prove negligence by the doctor.