Compensation Cases On The Ground Of Medical Negligence: Legal Provisions To Prevent Its Misuse
Compensation cases on the ground of medical negligence: Legal provisions to
prevent its misuse.
Frivolous negligence cases interfere with the professional freedom of doctors.
Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times. Warren E. Burger
Dr.S.G.Kabra
The Consumer Protection Act (CPA) has enabled easy, no-cost access to consumer courts but has lead to the filing of frivolous medical negligence cases for lucrative compensation. The practitioners of modern medicine appear to be soft targets.
Concerned with the deleterious effects of these frivolous cases of alleged medical negligence on the medical profession, and, in turn, on patient treatment, the Supreme Court has laid down laws to check and prevent misuse of legal provisions. These emanated from two landmark judgements.
The Jacob Mathew Case
What prompted the Supreme Court bench in the Jacob Mathew case to decide in favour of doctors was the plight of the respondent physicians in that case. A patient with terminal cancer who was admitted into the private ward of a hospital specifically for palliative, end-of-life comfort care had a cardiac arrest. A relative of the patient alleged that the patient died of oxygen deficiency because an oxygen cylinder was not available, and filed a criminal complaint.
The basis on which this criminal complaint was filed was clearly frivolous. Firstly, in the event of a cardiac arrest in any patent, cardio- pulmonary resuscitation (CPR) is attempted with room air and an oxygen cylinder is not immediately required. Secondly, in a patient with terminal cancer admitted for end-of-life palliative care, it is illogical to attempt CPR and the patient should be allowed to die a natural death. What happened was ordained to happen.
The criminal case was filed in 1995 and travelled through the magistrate, sessions and high courts to reach a two-judge bench of the Supreme Court in 2004 after the respondent doctors had failed to get the criminal complaint quashed. In the case before the bench, reliance had been placed on the decision of a two-judge bench of the Supreme Court in the case of Suresh Gupta vs Govt of NCT of Delhi and Anr. (2004) 6 SSC 422, to which the present bench did not agree. The case was, therefore, referred to larger, three-judge bench.
In the light of the ten years, from 1995 to 2004, of the tortuous legal process that it took for the case to reach the three-judge bench of the Supreme Court, their Lordships were conscious of the plight of the respondent doctors. While allowing the petition and quashing all criminal proceedings against the respondents, the bench, in the larger interests of the medical profession, delivered the following judgment to prevent harassment to doctors by frivolous, medically unsupported grounds:
Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005
Author: R Lahoti
Bench: Cji R.C. Lahoti, G.P. Mathur, P.K.Balasubramanyan
Case No.: Appeal (crl.) 144-145 of 2004
"We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
"Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.
A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. (emphasis added).
A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
Though the principle evolved to protect doctors from frivolous medical negligence cases was applicable to both civil and criminal complaints, the judgment, delivered as it was in a criminal complaint, was interpreted and considered to be inapplicable to civil cases filed under the CPA.
Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009
However, in 2009, a two-judge bench of the Supreme Court, in a civil case Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009, under CPA, relied on the judgment in the Jacob Mathew case, elaborated on it and extended the application of protection to all medical negligence cases, both civil and criminal.
This case (Martin D'Souza), related to a patient with end-stage kidney failure on dialysis who was waiting for kidney transplant. He developed a life-threatening kidney infection with bacteria sensitive only to the antibiotic Amikacin. He was treated with Amikacin but developed tinnitus (a sensation of ringing in the ear). This occurred because the drug is toxic to the nerve which supplies the inner ear. When he complained of tinnitus, his doctor (the respondent) advised discontinuing the drug and deleted the same from his prescription.
The patient, however, continued taking the drug of his own accord and later underwent a successful kidney transplant elsewhere. A year later, he filed a complaint in the National Disputes Redressal Commission, alleging that he lost his hearing because of negligent treatment (with Amikacin). Like the Jacob Mathew case, this one was also long-drawn out and hearings had to be attended personally by the respondent doctors from Mumbai. The Commission finally referred the case to a board of experts from the All India Institute of Medical Sciences, New Delhi. The board gave its reasoned opinion in favour of the respondent doctors but the Commission disregarded this expert opinion and awarded compensation to the complainant.
This case was filed before the Commission in 1992 and was decided only in 2002, marking a decade of torture for the respondent doctors. They filed an appeal in the Supreme Court in 2002. The Supreme Court delivered its judgment in February 2009, seven years later. Here is its judgment:
Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009
Author: M Katju
Bench: Markandey Katju, R.M. Lodha
In The Supreme Court Of India
Civil Appellate Jurisdiction
Civil Appeal No. 3541 Of 2002
35. Before dealing with these principles two things have to be kept in mind : (1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence.
The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
54. In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection :
We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action(emphasis added).
These two leading, celebrated judgments lay down laws, binding on all, till the legislature makes provision to the effect.
The similarity of these two judgments to an existing law in the State of Connecticut, USA
The rulings in the aforesaid two judgments closely and virtually verbatim correspond to the law enacted in the State of Connecticut, USA, to prevent vexatious medical negligence suits. Before a plaintiff can file a medical malpractice action in the State of Connecticut, Connecticut General Statutes Section 52-190a requires the plaintiff to make "a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant."
If the plaintiff determines good faith exists and files suit, the complaint must "contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant."
The pre-complaint inquiry and good faith certificate requirements for a medical malpractice action were enacted as part of tort reform legislation in 1986. The general purpose of Section 52-190a was to discourage the filing of baseless lawsuits against health care providers. Good faith may be shown to exist if the plaintiff has received a written opinion that there appears to be evidence of medical negligence. The opinion will have to be attached to the complaint but the identity of the expert giving the opinion need not be disclosed.
Here is the complete text of Connecticut General Statute Section 52-190a, which requires an expert's opinion letter and an attorney's good faith certificate as part of the process in filing a medical malpractice claim in Connecticut:
Sec. 52-190a. Prior reasonable inquiry and certificate of good faith required in negligence action against a health care provider. Ninety-day extension of statute of limitations.
In spite of the two landmark judgments by our Supreme Court and the terms of reference laid down in the State of Connecticut Law, the filing of frivolous cases continues in India. How do we ensure that the law laid down in the Jacob Mathew and Martin D'Souza is applied in all cases of medical negligence to prevent filing of frivolous cases compensation?
Written By: Dr.S.G.Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Gen. Surgery)
Ph no: 8003516198
Frivolous negligence cases interfere with the professional freedom of doctors.
Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times. Warren E. Burger
Dr.S.G.Kabra
The Consumer Protection Act (CPA) has enabled easy, no-cost access to consumer courts but has lead to the filing of frivolous medical negligence cases for lucrative compensation. The practitioners of modern medicine appear to be soft targets.
Concerned with the deleterious effects of these frivolous cases of alleged medical negligence on the medical profession, and, in turn, on patient treatment, the Supreme Court has laid down laws to check and prevent misuse of legal provisions. These emanated from two landmark judgements.
The Jacob Mathew Case
What prompted the Supreme Court bench in the Jacob Mathew case to decide in favour of doctors was the plight of the respondent physicians in that case. A patient with terminal cancer who was admitted into the private ward of a hospital specifically for palliative, end-of-life comfort care had a cardiac arrest. A relative of the patient alleged that the patient died of oxygen deficiency because an oxygen cylinder was not available, and filed a criminal complaint.
The basis on which this criminal complaint was filed was clearly frivolous. Firstly, in the event of a cardiac arrest in any patent, cardio- pulmonary resuscitation (CPR) is attempted with room air and an oxygen cylinder is not immediately required. Secondly, in a patient with terminal cancer admitted for end-of-life palliative care, it is illogical to attempt CPR and the patient should be allowed to die a natural death. What happened was ordained to happen.
The criminal case was filed in 1995 and travelled through the magistrate, sessions and high courts to reach a two-judge bench of the Supreme Court in 2004 after the respondent doctors had failed to get the criminal complaint quashed. In the case before the bench, reliance had been placed on the decision of a two-judge bench of the Supreme Court in the case of Suresh Gupta vs Govt of NCT of Delhi and Anr. (2004) 6 SSC 422, to which the present bench did not agree. The case was, therefore, referred to larger, three-judge bench.
In the light of the ten years, from 1995 to 2004, of the tortuous legal process that it took for the case to reach the three-judge bench of the Supreme Court, their Lordships were conscious of the plight of the respondent doctors. While allowing the petition and quashing all criminal proceedings against the respondents, the bench, in the larger interests of the medical profession, delivered the following judgment to prevent harassment to doctors by frivolous, medically unsupported grounds:
Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005
Author: R Lahoti
Bench: Cji R.C. Lahoti, G.P. Mathur, P.K.Balasubramanyan
Case No.: Appeal (crl.) 144-145 of 2004
"We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
"Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient.
A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. (emphasis added).
A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
Though the principle evolved to protect doctors from frivolous medical negligence cases was applicable to both civil and criminal complaints, the judgment, delivered as it was in a criminal complaint, was interpreted and considered to be inapplicable to civil cases filed under the CPA.
Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009
However, in 2009, a two-judge bench of the Supreme Court, in a civil case Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009, under CPA, relied on the judgment in the Jacob Mathew case, elaborated on it and extended the application of protection to all medical negligence cases, both civil and criminal.
This case (Martin D'Souza), related to a patient with end-stage kidney failure on dialysis who was waiting for kidney transplant. He developed a life-threatening kidney infection with bacteria sensitive only to the antibiotic Amikacin. He was treated with Amikacin but developed tinnitus (a sensation of ringing in the ear). This occurred because the drug is toxic to the nerve which supplies the inner ear. When he complained of tinnitus, his doctor (the respondent) advised discontinuing the drug and deleted the same from his prescription.
The patient, however, continued taking the drug of his own accord and later underwent a successful kidney transplant elsewhere. A year later, he filed a complaint in the National Disputes Redressal Commission, alleging that he lost his hearing because of negligent treatment (with Amikacin). Like the Jacob Mathew case, this one was also long-drawn out and hearings had to be attended personally by the respondent doctors from Mumbai. The Commission finally referred the case to a board of experts from the All India Institute of Medical Sciences, New Delhi. The board gave its reasoned opinion in favour of the respondent doctors but the Commission disregarded this expert opinion and awarded compensation to the complainant.
This case was filed before the Commission in 1992 and was decided only in 2002, marking a decade of torture for the respondent doctors. They filed an appeal in the Supreme Court in 2002. The Supreme Court delivered its judgment in February 2009, seven years later. Here is its judgment:
Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009
Author: M Katju
Bench: Markandey Katju, R.M. Lodha
In The Supreme Court Of India
Civil Appellate Jurisdiction
Civil Appeal No. 3541 Of 2002
35. Before dealing with these principles two things have to be kept in mind : (1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence.
The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
54. In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection :
- A private complaint should not be entertained unless the complainant has
produced prima facie evidence before the court in the form of a credible
opinion given by another competent doctor to support the charge of rashness
or negligence on the part of the accused doctor.
- The investigating officer should, before proceeding against the doctor
accused of rash or negligent act or omission, obtain an independent and
competent medical opinion, preferably from a doctor in government service,
qualified in that branch of medical practice who can normally be expected to
give an impartial opinion applying the Bolam test.
- A doctor accused of negligence should not be arrested in a routine
manner simply because a charge has been leveled against him. Unless his
arrest is necessary for furthering the investigation or for collecting
evidence or unless the investigating officer feels satisfied that the doctor
proceeded against would not make himself available to face the prosecution
unless arrested, the arrest should be withheld (Emphasis added.)
We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action(emphasis added).
These two leading, celebrated judgments lay down laws, binding on all, till the legislature makes provision to the effect.
The similarity of these two judgments to an existing law in the State of Connecticut, USA
The rulings in the aforesaid two judgments closely and virtually verbatim correspond to the law enacted in the State of Connecticut, USA, to prevent vexatious medical negligence suits. Before a plaintiff can file a medical malpractice action in the State of Connecticut, Connecticut General Statutes Section 52-190a requires the plaintiff to make "a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant."
If the plaintiff determines good faith exists and files suit, the complaint must "contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant."
The pre-complaint inquiry and good faith certificate requirements for a medical malpractice action were enacted as part of tort reform legislation in 1986. The general purpose of Section 52-190a was to discourage the filing of baseless lawsuits against health care providers. Good faith may be shown to exist if the plaintiff has received a written opinion that there appears to be evidence of medical negligence. The opinion will have to be attached to the complaint but the identity of the expert giving the opinion need not be disclosed.
Here is the complete text of Connecticut General Statute Section 52-190a, which requires an expert's opinion letter and an attorney's good faith certificate as part of the process in filing a medical malpractice claim in Connecticut:
Sec. 52-190a. Prior reasonable inquiry and certificate of good faith required in negligence action against a health care provider. Ninety-day extension of statute of limitations.
- No civil action or apportionment complaint shall be filed to recover
damages resulting from personal injury or wrongful death occurring on or
after October 1, 1987, whether in tort or in contract, in which it is
alleged that such injury or death resulted from the negligence of a health
care provider, unless the attorney or party filing the action or
apportionment complaint has made a reasonable inquiry as permitted by the
circumstances to determine that there are grounds for a good faith belief
that there has been negligence in the care or treatment of the claimant.
The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant.
To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any party except for questioning the validity of the certificate. The claimant or the claimant's attorney, and any apportionment complainant or apportionment complainant's attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.
The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion.
In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney's fee.
The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney or the apportionment complainant's attorney submitted the certificate.
- Upon petition to the clerk of the court where the civil action will be
filed to recover damages resulting from personal injury or wrongful death,
an automatic ninety-day extension of the statute of limitations shall be
granted to allow the reasonable inquiry required by subsection (a) of this
section. This period shall be in addition to other tolling periods.
- The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.
In spite of the two landmark judgments by our Supreme Court and the terms of reference laid down in the State of Connecticut Law, the filing of frivolous cases continues in India. How do we ensure that the law laid down in the Jacob Mathew and Martin D'Souza is applied in all cases of medical negligence to prevent filing of frivolous cases compensation?
Written By: Dr.S.G.Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Gen. Surgery)
Ph no: 8003516198
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