MEDICAL PRACTICE AND RELATED LAWS IN INDIA: LEGAL LIABILITIES OF DOCTORS AND HOSPITALS
Negligence by medical practitioners has been considered a more
serious breach than ordinary negligence in the eyes of law as they deal with
human life. In a time when society is in the holds of a novel virus impacting
every aspect of life as we know it, and more and more people are needing to
avail medical facilities while doctors are under severe pressure, this article
aims to give an overview of what is medical negligence and what are the
liabilities of medical practitioners in India and of Hospitals. A part of the
article also deals with what may become of these laws in cases of negligence
while treating corona virus cases.
1. What is medical negligence?
Negligence is an omission to do something which a reasonable
man, guided upon those consider-ations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and reasonable man
would not do. [Salmond, Law of Torts, Sweet and Maxwell, 1977]. However,
medical negligence has more specific aspects to it. In a recent judgment of the
Su-preme Court, medical negligence was defined as follows:
“Medical negligence is the breach of a duty of care by an act of
omission or commission by a medical professional of ordinary prudence.
Actionable medical negligence is the ne-glect in exercising a reasonable degree
of skill and knowledge to the patient, to whom he owes a duty of care, which
has resulted in injury to such person. The standard to be ap-plied for
adjudging whether the medical professional charged has been negligent or not,
in the performance of his duty, would be that of an ordinary competent person
exercising ordinary skill in the profession. The law requires neither the very
highest nor a very low degree of care and competence to adjudge whether the
medical professional has been negligent in the treatment of the patient.”
[Maharaja Agrasen Hospital v. Master Rishabh Sharma 2019 SCC OnLine SC 1658,
referring to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969)
1 SCR 206 : AIR 1969 SC 128; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 :
(2010) 2 SCC (Cri) 1127 : (2010) 1 SCC (Civ) 747].
In a complaint of medical negligence, the burden is on the
complainant to prove breach of duty, injury and causation. [Postgraduate
Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC
330].
From this comprehensive definition given by the Apex Court, it
emerges that in claims of action-able negligence:
(i) there must be a duty of care upon the medical practitioner
(ii) that duty is breached
(iii) the breach is due to neglect in exercising a reasonable
degree of skill and knowledge to the patient
(iv) patient suffers an injury as a result of that neglect.
Thus,
medical negligence is a breach of duty of care by the medical practitioner due
to ne-glect in exercising reasonable care, resulting in injury to the patient.
2. What is medical negligence under the Consumer Protection Act?
The case of Indian Medical Association v. V. P. Shantha [(1995)
6 SCC 651] was a landmark judgment in the year 1995 through which the Supreme
Court brought the medical profession within the ambit of a “service” [Section
2(1)(o)] as under the Consumer Protection Act, 1986. Since then, the provisions
of the Consumer Protection Act apply and cases of medical negligence can be
filed before the Commissions under the Act by patients and their relatives, who
fall within the definition of “consumer” under Section 2(1)(d) of the Consumer
Protection Act.
Aggrieved parties, through provisions of the Act can now
approach:
• District Forums: Medical negligence cases of up to Rs. 25 lakh
are filed here as part of its original jurisdiction.
• State Consumer Redressal Forum: Medical negligence cases of up
to Rs. 1 crore are filed here as part of its original jurisdiction. It also has
appellate jurisdiction over cases coming in appeal from the district forums
within its jurisdiction.
• National Commission: Medical negligence cases of claims over
Rs. 1 crore are filed here as part of its original jurisdiction. It has
appellate jurisdiction over cases coming in appeal from all the state forums.
The Consumer Protection Act is to protect “consumers”, and is thus applicable
only to medical services being provided to consumers, not applicable in cases
where medical aid is rendered free of charge. However, this does not mean that
a person who does not have the capacity to pay will not be protected. To
clarify this, consider this example: X is a private hospital in a locality. Y
is an organization providing pro-bono basic medical aid to people. Hospital X
is covered by the Consumer Protection Act, but Organization Y that gives free
services is not. Further, A is a person of limited means who avails the
facilities of Hospital X when he meets with an accident, is unable to pay the
cost of treatment, and is treated negligently during that pe-riod. Person A can
sue Hospital X under the Consumer Protection Act even if he did not pay for the
medical service. Thus, cases in which medical services are offered for a
charge/fee, leading to negligence by practitioners, may be brought before the
consumer dispute redressal forums.
3. What is the difference between civil and criminal medical
negligence?
Civil
Negligence: The Consumer Protection Act can only protect consumers
availing a medical service. However, a wider protection is offered under the
law of torts against all forms of medi-cal negligence, even if the same are
being rendered free of charge. The onus, as is the aforementioned general
principle, lies on the patient to prove that the doctor was negligent and that
the injury was a consequence of the doctor’s negligence. [Philips India Ltd. v.
Kunju Pannu AIR 1975 Bom. 306].
Criminal
Negligence: In cases of blatant negligence and utter disregard of duty
of care, ag-grieved parties may want to file a criminal complaint against the
medical practitioners. A doctor can be punished under the Indian Penal Code for
causing death by a rash or negligent act [See Section 304A]. However, to hold a
doctor criminally liable under this Section, the level of negli-gence should be
so high that it can be described as ‘gross negligence’ or ‘recklessness’, not
merely lack of necessary care. [See Suresh Gupta (Dr) v. Govt. of NCT of Delhi
(2004) 6 SCC 422].
Under the Indian Penal Code, medical negligence is also criminally
actionable for the following reasons:
• If the doctor acts in “bad faith”, without due care or
attention [S. 52, IPC]
• In case of an act likely to cause harm, but done without
criminal intent, and to prevent other harm, it is a question of fact whether
the harm to be prevented or avoided was of such a na-ture and so imminent as to
justify or excuse the risk of doing the act with the knowledge that it was
likely to cause harm, by a medical practitioner. [S. 81, IPC]
• A medical procedure done in good faith and with no intent to
cause death, with consent of the patient, but which is an illegal procedure,
will make the practitioner liable [S. 88 r/w S. 91, IPC]
• Rash or negligent act endangering the life or causing hurt to
a person [Ss. 337, 338, IPC]
4. What is the standard of care to be observed by medical practitioners
to avoid negli-gence?
A well accepted standard of care has been defined in the
Halsbury’s Laws of England, stating:
“To establish liability on that basis it must be shown (1) that
there is a usual and normal practice; (2) that the defendant has not adopted
it; and (3) that the course in fact adopted is one no professional man of
rdinary skill would have taken had he been acting with or-dinary care.” [See
Halbury’s Law of England, 4th Edition, Vol.30, Para 35].
The famous Bolam’s Test, setting the standard in the case of
Bolam v. Friern Hospital Manage-ment Committee [1957) 2 All ER 118] states
that:
“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 exercis-ing that particular
art…
…he [a Doctor] is not guilty of negligence if he has acted in
accordance with a practice accepted as proper by a responsible body of medical
men skilled in that particular art”. The Bolam test thus laid a minimal
standard of care as was being practiced at the time, and was widely accepted as
decisive of the standard of care required by medical practitioners, and was
invariably cited with approval before the courts in India for a long period.
[See Jacob Mathew v. State of Punjab, (2005) 6 SCC 1].
However, in recent times, the test is being disregarded internationally,
while countries aim for a higher standard of care, aiming at not just a basic
level of care but while evidence of acceptable medical practice is a useful
guide for the courts, it is for the courts to adjudicate on what is the
appropriate standard of care. [See Rogers v. Whitaker (1992) 109 Aus LR 625:
[1992]HCA 58; see also Bolitho v. City and Hackney Health Authority (1997) 4
All ER 771 (HL)].
Even the Courts of India have moved accordingly to determine on
a case by case basis after analysis by the Court, what would be the reasonable
standard of care, and the Supreme Court has called for reconsideration of the
Bolam Test and evolve the standards in accordance with deci-sions of recent
years. [V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513].
Thus, the
standard of care is no longer the accepted practice at a time, but a higher
stand-ard of reasonable care in each case, to be determined by the Court upon
examination of all factors.
5. What is the extent of liability of hospitals in cases of negligence?
Hospitals can be held vicariously liable for the actions of its
employees on many grounds. It is, in fact, a common trend among courts to hold
hospitals vicariously liable for the actions of its staff. The NCDRC made a
critical holding in a case that hospitals have to own up to the conduct of
their employees; they cannot escape liability by mere statement that it only
provided infrastruc-tural facilities, services of nursing staff, supporting
staff and technicians. [Rekha Gupta v. Bom-bay Hospital Trust & Anr., 2003
(2) CPJ 160 (NCDRC)].
The state can also be held vicariously liable for the negligent
actions of its medical practitioners. [See Smt. Santra v. State of Haryana
& Ors [(2005) 5 SCC 182; Achutrao & ors v. State of Maharashtra &
Ors [JT 1996(2) SC 664].
It is the hospital that is considered to be offering the medical
service, and all its staff, including independently operating doctors who take
all decisions within the set up, are considered to be part of the hospital in
the services they perform. [Joseph alias Pappachan v. Dr. George Moonjerly
[1994 (1) KLJ 782 (Ker. HC); Aparna Dutta v. Apollo Hospitals Enterprises Ltd.
[2002 ACJ 954 (Mad. HC)].
This principle is reiterated in a judgment of the Supreme Court
recently:
“It is well established that a hospital is vicariously liable
for the acts of negligence com-mitted by the doctors engaged or empanelled to
provide medical care. It is common expe-rience that when a patient goes to a
hospital, he/she goes there on account of the reputa-tion of the hospital, and
with the hope that due and proper care will be taken by the hos-pital
authorities. If the hospital fails to discharge their duties through their
doctors, being employed on job basis or employed on contract basis, it is the
hospital which has to justify the acts of commission or omission on behalf of
their doctors.” [Maharaja Agrasen Hospi-tal v. Master Rishabh Sharma, 2019 SCC
OnLine SC 1658]
Thus,
hospitals and medical institutions, including the ones owned by the state, are
vicari-ously liable for the negligent actions of all its medical practitioners.
6. In times of the COVID outbreak, how are these laws likely to be
interpreted? Will ac-countability reduce as cases increase?
Standard of Care for Corona Patients: In a virus which is novel
with no known treatment, it is extremely difficult to determine the standard of
care and decipher negligence. The standard that courts can hold the doctors to
in these cases at the minimum would be reasonable efforts and care being
provided, and at a maximum could be as high as trying to inculcate the
internationally accepted best practices in the treatment of this novel virus.
Liability in cases of malpractice while treating COVID patients:
The government has speci-fied norms and guidelines for how these cases are to be
treated. So long as hospitals, both gov-ernment and private, observe these
measures, this should be safe from liability. Following is a brief of the main
guidelines with links to the government orders to be followed:
• The guidelines is for health care workers and others working
in Non COVID hospitals and Non-COVID treatment areas of a hospital which has a
COVID block state what is the level of protective equipment medical personnel
have to wear in different wings and ambulances, de-pending on whether their
area of work falls within mild, moderate or high risk. [See the com-plete
guidelines at https://www.mohfw.gov.in/pdf/AdditionalguidelinesonrationaluseofPersonalProtectiveEquipmentsettingapproachforHealthfunctionariesworkinginnonCOVIDareas.pdf
• Quarantine facilities have their own guidelines requiring
evaluation of potential sites, risk as-sessment, securing entry and exit,
coordination, monitoring, supervision and daily reports, along with specific
directions on how to manage and contain those sites [See the complete
guidelines at https://www.mohfw.gov.in/pdf/90542653311584546120quartineguidelines.pdf.
• For transportation of suspected cases, there should be
ambulances identified specifically for transporting COVID suspect patients or
those who have developed complications, to the health facilities. Currently,
there are two types of ambulances – ALS (with ventilators) and BLS (without
ventilators). States may empanel other ambulances having basic equipment like
that of BLS and use it for COVID patients. However, this must be ensured that
strict adherence to cleaning and decontamination protocols given here in the
guidance note need to be followed. The fleet in - charge or person designated
by CMO/CS, will supervise its adherence. [See the complete guidelines at https://www.mohfw.gov.in/pdf/StandardOperatingProcedureSOPfortransportingasuspectorconfirmedcaseofCOVID19.pdf.
• Providing essential services for all areas include
reproductive, maternal, new-born and child health, prevention and management of
communicable diseases, treatment for chronic diseases to avoid complications,
and addressing emergencies, is necessary and guidelines have been is-sued for
ensuring reorganization of service delivery, mapping areas of delivery,
carrying out the same while observing social distancing, optimizing home visits
and using alternate methods of outreach for services [See the complete
guidelines at https://www.mohfw.gov.in/pdf/EssentialservicesduringCOVID19updated0411201.pdf.
• It shall be mandatory for all hospitals (Government and
Private), Medical officers in Govern-ment health institutions and registered
Private Medical Practitioners including AYUSH Practi-tioners, to notify such
person(s) with COVID-19 affected person to concerned district sur-veillance
unit. All practitioners shall also get the self-declaration forms (enclosed),
who, within their knowledge, are having travel history of COVID-19 affected
countries as per the extant guidelines and are falling under the case
definition of COVID-19 (Suspect/Case). [See the complete guidelines at https://www.mohfw.gov.in/pdf/GuidelinesfornotifyingCOVID-19affectedpersonsbyPrivateInstitutions.pdf
• In case of positive cases appearing among hospital staff, the
institution must not shut down. All health facilities (HCF) must have a
staffing plan in place including a contingency plan for such an event to
maintain continuity of operations. [See the complete guidelines at https://www.mohfw.gov.in/pdf/GuidelinestobefollowedondetectionofsuspectorconfirmedCOVID19case.pdf
***In case of any difficulty in understanding the above
guidelines or need for clarification, please reach out to the offices of Aura
& Co, at ____.
Immense Rise in Cases - Standards if the Situation Gets Worse:
The novel coronavirus is ex-tremely potent, and has spread rampantly even in a
state of lockdown. This implies that India, most likely, is yet to see the full
extent of its wrath. With limited infrastructure and facilities and no cure in
sight, a population of 1.3 billion will lead to a chaotic situation of the
virus continues to spread at the present rate. Therefore, Courts may not be
able to enforce the standards at that time for sheer reasons of incapability of
providing adequate medical service to all patients, due to lack of resources.
It is thus, essential, that every precaution be taken to contain the spread of
the virus.
Counter-Protection to Medical Personnel in times of COVID: The
government of India has provided a necessary protection to doctors as well as a
consequence of violent acts against them in recent times. The Epidemic Diseases
(Amendment) Ordinance, 2020 [Act 5 of 2020], prom-ulgated on April 22, 2020 is
aimed at protecting healthcare service personnel from acts of vio-lence.
The Ordinance has defined an “act of violence” to include the
following acts against healthcare personnel:
(i) harassment impacting living or working conditions,
(ii) harm, injury, hurt, or danger to life,
(iii) obstruction in discharge of his duties, and
(iv) loss or damage to the property or documents of the
healthcare service personnel. [S. 3, Epidemic Diseases (Amendment) Ordinance,
2020, inserted as S. 1A(a) in the principal Act] It defines healthcare service
personnel as a person who is at risk of contracting the epidemic disease while
carrying out duties related to the epidemic. They include: (i) public and
clinical healthcare providers such as doctors and nurses, (ii) any person
empowered under the Act to take measures to prevent the outbreak of the
disease, and (iii) other persons designated as such by the state government.
[S. 3, Epidemic Diseases (Amendment) Ordinance, 2020, inserted as S. 1A(b) in
the principal Act]. Property is defined to include a: (i) clinical
establishment, (ii) quarantine facility, (iii) mobile medical unit, and (iv)
other property in which a healthcare service personnel has direct interest, in
relation to the epidemic [S. 3, Epidemic Diseases (Amendment) Ordinance, 2020,
inserted as S. 1A(c) in the principal Act].
The Ordinance specifies that no person can commit or abet the
commission of an act of violence against a healthcare service personnel, or
abet or cause damage or loss to any property during an epidemic. Contravention
of this provision is punishable with imprisonment between three months and five
years, and a fine between Rs 50,000 and two lakh rupees. [S. 6, Epidemic
Diseases (Amendment) Ordinance, 2020, inserted as S. 3(2) in the principal
Act]. On committing an act of violence on a medical personnel resulting in
grievous hurt as defined u/s 320 IPC, there shall be imprisonment from 6 months
to 7 years, and fine of Rs. 1 lakh to Rs. 5 lakh. [S. 6, Epidemic Dis-eases
(Amendment) Ordinance, 2020, inserted as S. 3(3) in the principal Act]. In
addition to the punishment and fine provided for these acts, the convicted
person must also pay compensation as determined by the court, to the impacted
healthcare personnel [S. 7, Epi-demic Diseases (Amendment) Ordinance, 2020,
inserted as S. 3E(i) in the principal Act]. These are cognizable and
non-bailable offenses [S. 7, Epidemic Diseases (Amendment) Ordinance, 2020,
inserted as S. 3A(i) in the principal Act].
Shiv
Mangal Sharma and Sukanya Singh
Advocate
Supreme Court
