By Dr. Bibhu Kalyan Pradhan
BHUBANESWAR: In India, both hospitals and doctors are liable for medical negligence, often for damages under the Consumer Protection Act, 2019. The hospital is liable for the actions of its staff and is directly responsible for inadequate infrastructure. Negligence can be reported to the Medical Council of India (MCI) or a case can be filed under IPC Section 304A.
*Who is responsible?*
- Doctors/medical staff: are directly liable for failing in their duty of care, such as providing inappropriate treatment or committing negligent acts.
- Hospitals (Vicarious Liability): According to the iPleaders blog and Sage Journals, hospitals are liable for the negligence of their employees (doctors, nurses, technicians) in the course of their employment.
- Hospitals (direct liability): Hospitals are directly responsible for unsafe environments, faulty equipment, inadequate record keeping, or hiring incompetent staff.
- Supervising physicians: Senior physicians can be held liable for mistakes made by students or residents under their supervision.
Legal action options
- Consumer Protection Act: Patients can file cases for compensation in the district (up to ₹1 crore), state or national commission.
- Civil Court: To claim damages under criminal law.
- Criminal Law: An FIR can be lodged under Section 304A of the Indian Penal Code (now Manupari Academy Indian Penal Code, 2023), which can cause death by accidental or negligent act.
- Medical Council of India (MCI): Complaints can be filed for professional misconduct, which can lead to suspension or cancellation of a doctor’s license.
Key consideration
Consent: Failure to obtain informed consent, as discussed in the aggregate law, may lead to a negligence claim.
Standard of Care: Doctors are expected to exercise a reasonable degree of care and skill, but treatment is not guaranteed. Simultaneously, due to simple laws and government efforts to educate citizens about their legal rights, awareness of their legal rights has increased among all sections of people.
This awareness of rights coupled with legal and judicial approach for consumers has encouraged citizens to approach judicial forums for redressal of their grievances. The downside of this is that citizens are also resorting to judicial forums to try their luck in litigation on the grounds that such actions are not justified.
The result in both cases is the same, a doctor is a defendant in a medical negligence claim. There is nothing more professionally damaging and emotionally and psychologically debilitating than standing as a defendant in such a case, especially when the doctor has made a concerted effort to alleviate the patient’s problems.
Although not much can be done to prevent a dissatisfied patient from approaching the judicial forum for redressal of his grievance, much can certainly be done to prevent such a situation from arising. Moreover, it becomes more important for a doctor to have an understanding of the law so that he can know what the law requires of him at every step while discharging his duty and treating the patient. This article attempts to briefly describe the judicial approach to medical negligence claims in India, some of the problems and solutions. The article first discusses the legal avenues other than the Consumer Protection Act, 1986 (“CPA”) and then discusses the CPA – the preferred option for litigants seeking to initiate proceedings against medical professionals.
What is medical negligence?
Before we begin, it is important to understand what medical negligence is. Negligence can generally be defined as a breach of duty that a reasonable person would act in a manner that is governed by the judgments that normally govern the conduct of human affairs, or does something that a prudent and reasonable person would not do.
Negligence in the context of the medical profession necessarily requires a different definition. Being a professional, a doctor can be held liable for negligence on one of two grounds: either he did not have the requisite skill which he claimed or he did not use the skill which he possessed, with reasonable skill, in a particular case. The basic principle relating to medical negligence is known as the BOLAM rule and has been accepted by the Supreme Court as the standard test for medical negligence (Jacob Mathew v. State of Punjab (2005) 6 SCC 1).
Civil Court This is one of the oldest remedies available to victims. Thus, a victim can bring an action against a doctor for medical negligence for compensation and damages. The principles for bringing legal action in a civil court are based on the law of torts. The word tort comes from the Latin word “tortum”, which means to wrong. Therefore, it includes conduct that is not lawful. This branch of law includes various “torts” or wrongful acts where the wrongdoer violates some legal right granted to another person. A tort is defined as a civil wrong that can be remedied by an action for unrecoverable damages and which is only possible in the case of breach of contract or breach of trust. Therefore, damages are the most important remedy for a crime. Claims under civil law may also be based on the provisions of the Fatal Accidents Act, 1855 and Section 357 of the Code of Criminal Procedure, 1973. The Fatal Accidents Act, 1855 is based on the English Fatal Accidents Act, 1846, with some amendments to suit Indian context. The said Act provides compensation to the family of the deceased for the loss suffered by them due to the death of a person due to an actionable fault. The Act has wide application and has been used by the Supreme Court of India to award compensation to the legal heirs of deceased patients (Dr. Laxman Moolkrishna Joshi v. Dr. Triyambak Bapu Godhole AIR 1969 SC 128).
Consumer Protection Act, 1986
The CPA has become a new direction for consumer matters in the country. The CPA was enacted in 1986 “to provide better protection to the interests of consumers”. The CPA has created a time-bound and equitable dispute resolution mechanism under which disputes raised by consumers are adjudicated. Under the CPA, any person who hires or receives any service for consideration (and includes any beneficiary of such service) qualifies as a consumer under Section 2(d) of the Act. If the service hired or received by a consumer is found to be deficient in any respect, the consumer can initiate proceedings under the CPA for redressal of his grievance. The simple and easy procedures available have made the Act a powerful tool in the hands of consumers who are dissatisfied with the services provided and goods sold. One of the important and growing areas in the field of consumer law is medical negligence.
Spring Meadows Hospital & An. v. Harjol Ahluwalia to K.S. Ahluwalia & An. is again a case of liability for negligence of a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jordan, [1981] 1 ALL ER 267 and while determining when an error of judgment can be said to be negligence, the following legal statement was quoted with approval in the opinion of Lord Fraser:- “The real position is that an error of judgment may or may not be negligence, depending on the nature of the error. If it is one that would not have been made by a reasonably competent professional who claims to have exercised ordinary care and the standard and type of skill required, then it is negligence. On the other hand, if it is an error that such a person would have exercised with ordinary care, then it is not negligence.”
Develop in-house procedures to define responsibilities of both staff and doctors in the event of death. Appoint responsible officers to carefully manage and supervise court cases. Establish close liaison with lawyers and engage good lawyers to represent the defendants in the case. Make honest and sincere efforts to resolve the matter out of court before any action is initiated against the patient/caregiver. Regular evaluation of doctors and staff by the patient and caregiver and maintenance of these records. Familiarize yourself with the Medical Council of India (Professional Conduct, Ethics and Discipline) Rules 2002
Although the above examples are by no means exhaustive and are merely illustrative, following them will reduce the likelihood of any medical negligence claim being made. If this is done, it will be easier to defend such cases if the above guidelines are followed carefully. Although the above may generate more paperwork and increase administrative time, in the long run, the benefits of maintaining a comprehensive medical record will eliminate unnecessary cases from the doorstep.
