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Introduction
With the awareness in the society and the people in general
gathering consciousness about their rights, measures for damages
in tort, civil suits and criminal proceedings are on the augment.
Not only civil suits are filed, the accessibility of a medium for
grievance redressal under the Consumer Protection Act, 1986 (CPA),
having jurisdiction to hear complaints against medical
professionals for 'deficiency
in service',
has given rise to a large number of complaints against doctors,
being filed by the persons feeling aggrieved. The criminal
complaints are being filed against doctors alleging commission of
offences punishable under Sec. 304A or Sections 336/337/338 of the
Indian Penal Code, 1860 (IPC) alleging rashness or negligence on
the part of the doctors resulting in loss of life or injury of
varying degree to the patient. This has given rise to a situation
of great distrust and fear among the medical profession and a
legal assurance,
ensuring protection from unnecessary and arbitrary complaints, is
the need of the hour. The liability of medical professionals must
be clearly demarcated so that they can perform their benevolent
duties without any fear of legal sword. At the same time, justice
must be done to the victims of medical negligence and a punitive
sting must be adopted in deserving cases. This is more so when the
most sacrosanct right to life or personal liberty is at stake.
Nature Of
Medical Negligence
In the law of negligence, professionals such as lawyers, doctors,
architects and others are included in the category of persons
professing some special skill or skilled persons generally. Any
task which is required to be performed with a special skill would
generally be admitted or undertaken to be performed only if the
person possesses the requisite skill for performing that task. Any
reasonable man entering into a profession which requires a
particular level of learning to be called a professional of that
branch, impliedly assures the person dealing with him that the
skill which he professes shall be exercised with reasonable degree
of care and caution. On the same analogy, this assures the
patients that a doctor possesses the requisite skill in the
medical profession which he is practicing and while undertaking
the performance of the task entrusted to him he would be
exercising his skill with reasonable competence. Judged by this
standard, a professional including medical professional may be
held liable for negligence on one of two findings: either he was
not possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable competence in
the given case, the skill which he did possess.
The standard to be applied for judging, whether the person charged
has been negligent or not, would be that of an ordinary competent
person exercising ordinary skill in that profession. It is not
necessary for every professional to possess the highest level of
expertise in that branch which he practices. Where a profession
embraces a range of views as to what is an acceptable standard of
conduct, the competence of the professional is to be judged by the
lowest standard that would be regarded as acceptable. 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
exercising that particular art.
Thus, a professional man should command the corpus of knowledge
which forms part of the professional equipment of the ordinary
member of his profession. He should not lag behind other ordinary
assiduous and intelligent members of his profession in knowledge
of new advances, discoveries and developments in his field. He
should have such awareness as an ordinarily competent practitioner
would have of the deficiencies in his knowledge and the
limitations on his skill. He should be alert to the hazards and
risks in any professional task he undertakes to the extent that
other ordinarily competent members of the profession would be
alert. He must bring to any professional task he undertakes no
less expertise, skill and care than other ordinarily competent
members of his profession would bring, but need bring no more.
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
ordinary skill would have taken had he been acting with ordinary
care.
A medical practitioner cannot be held liable simply because things
went wrong from mischance or misadventure or through an error of
judgment in choosing one reasonable course of treatment in
preference of another. A medical practitioner would be liable only
where his conduct fell below that of the standards of a reasonably
competent practitioner in his field. At least three weighty
considerations can be pointed out which any forum trying the issue
of medical negligence in any jurisdiction must keep in mind. These
are: (i) that legal and disciplinary procedures should be properly
founded on firm, moral and scientific grounds; (ii) that patients
will be better served if the real causes of harm are properly
identified and appropriately acted upon; and (iii) that many
incidents involve a contribution from more than one person, and
the tendency is to blame the last identifiable element in the
chain of causation the person holding the 'smoking gun'. Thus, to
establish a medical negligence, the abovementioned position must
be kept in mind
Criminal Law: Where Negligence Amounts To Crime
The criminal law has invariably placed the medical professionals
on a pedestal different from ordinary mortals. The Indian Penal
Code, 1860 sets out a few vocal examples. Sec. 88 in the Chapter
on General Exceptions provides exemption for acts not intended to
cause death, done by consent in good faith for person's benefit.
Sec. 92 provides for exemption for acts done in good faith for the
benefit of a person without his consent though the acts cause harm
to a person and that person has not consented to suffer such harm.
Sec. 93 saves from criminality certain communications made in good
faith. The rationale behind these provisions is that no man can so
conduct himself as to make it absolutely certain that he shall not
be so unfortunate as to cause the death of a fellow-creature. The
utmost that he can do is to abstain from every thing which is at
all likely to cause death.
No fear of punishment can make him do
more than this; and therefore, to punish a man who has done this
can add nothing to the security of human life. Thus, when a person
engaged in the commission of an offence within the meaning of IPC
causes death by rashness or negligence, but without either
intending to cause death, or thinking it likely that he shall
cause death, he should be liable for the punishment of the offence
which he was engaged in committing, superadded to the ordinary
punishment of involuntary culpable homicide. The involuntary
causing of death, without either rashness or negligence, should
under no circumstances be punished as murder. The following
statement of law on criminal negligence by reference to surgeons,
doctors etc. and unskillful treatment contained in Roscoe's Law of
Evidence is classic in this regard:
"Where a person, acting as a medical man, whether licensed or
unlicensed, is so negligent in his treatment of a patient that
death results, it is manslaughter if the negligence was so great
as to amount to a crime, and whether or not there was such a
degree of negligence is a question in each case for the jury. In
explaining to juries the test which they should apply to determine
whether the negligence in the particular case amounted or did not
amount to a crime, judges have used many epithets, such as 'culpable,'
'criminal', 'gross', 'wicked', 'clear', 'complete.'
But whatever epithet be used and whether an epithet be used or
not, in order to establish criminal liability the facts must be
such that, in the opinion of the jury, the negligence of the
accused went beyond a mere matter of compensation between subjects
and showed such disregard for the life and safety of others as to
amount to a crime against the State and conduct deserving
punishment."
Deficiency
In Services Amounting To Negligence In Consumer Protection Act
Practice of medicine is as old as existence of human race.
Originally, the priest functioned as preacher, teacher, judge as
well as healer. He was the first physician and his relationship
with his patients was unique and unquestioned. With the passage of
time not only has practice of medicine graduated to become
independent and noble profession, but his relationship has slowly
shifted from 'Next
to God'
to 'Friend,
Philosopher and Guide',
to 'respected professional' and, today, to service provider. With
increased consumer awareness, rising expectation, western trend of
medical liability litigation, Consumer Protection Act, and
judicial activism, increasing number of complaints are being filed
by dissatisfied patients resulting in growing distrust between
patients and doctors and increased cost of medical treatment.
Over the last fifteen years there has been increased speculation
on whether
"Medical Services"
are expressly or categorically included in the definition of term
"services" under Section 2(1)(o) of the Consumer Protection Act.
In
Indian Medical Association v. V.P. Shantha and Ors
the
principal issue which arose for decision before the Supreme Court
was whether a medical practitioner renders 'service' and can be
proceeded against for 'deficiency in service' before a forum under
the Consumer Protection Act, 1986. The Court dealt with how a
'profession' differs from an 'occupation' especially in the
context of performance of duties and hence the occurrence of
negligence. The Court noticed that medical professionals do not
enjoy any immunity from being sued in contract or tort (i.e. in
civil jurisdiction) on the ground of negligence.
However, in the
observation made in the context of determining professional
liability as distinguished from occupational liability, the Court
has referred to authorities, in particular, Jackson & Powell and
have so stated the principles, partly quoted from the authorities
:-
"In the matter of professional liability professions differ from
occupations for the reason that professions operate in spheres
where success cannot be achieved in every case and very often
success or failure depends upon factors beyond the professional
man's control. In devising a rational approach to professional
liability which must provide proper protection to the consumer
while allowing for the factors mentioned above, the approach of
the Courts is to require that professional men should possess a
certain minimum degree of competence and that they should exercise
reasonable care in the discharge of their duties. In general, a
professional man owes to his client a duty in tort as well as in
contract to exercise reasonable care in giving advice or
performing services.
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.
Torts Law:
Recourse To Claim Compensation
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. Such cases of negligence may include
transfusion of blood of incorrect blood groups, leaving a mop in
the patient's abdomen after operating, unsuccessful sterilisation
resulting in the birth of a child, removal of organs without
taking consent, operating on a patient without giving anaesthesia,
administering wrong medicine resulting in injury, etc
Review Of
Judicial Pronouncements In India
A review of Indian decisions on medical negligence would be
relevant in this regard. In
John Oni Akerele v. The King
a duly
qualified medical practitioner gave to his patient the injection
of Sobita which consisted of sodium bismuth tartrate as given in
the British Pharmacopoeia. However, what was administered was an
overdose of Sobita. The patient died. The doctor was accused of
manslaughter, reckless and negligent act. He was convicted. The
matter reached in appeal before the House of Lords. Their
Lordships quashed the conviction and summed up the position as
under:-
#
That a doctor is not criminally responsible for a patient's death
unless his negligence or incompetence went beyond a mere matter of
compensation between subjects and showed such disregard for life
and safety of others as to amount to a crime against the State;
#That the degree of negligence required is that it should be
gross, and that neither a jury nor a court can transform
negligence of a lesser degree into gross negligence merely by
giving it that appellation. There is a difference in kind between
the negligence which gives a right to compensation and the
negligence which is a crime.
#It is impossible to define culpable or criminal negligence, and
it is not possible to make the distinction between actionable
negligence and criminal negligence intelligible, except by means
of illustrations drawn from actual judicial opinion. The most favourable
view of the conduct of an accused medical man has to be taken, for
it would be most fatal to the efficiency of the medical profession
if no one could administer medicine without a halter round his
neck
The question of degree has always been considered as relevant to a
distinction between negligence in civil law and negligence in
criminal law. In
Kurban Hussein Mohamedalli Rangawalla v. State of
Maharashtra
while dealing with Section 304A of IPC, the following
statement of law by
Sir Lawrence Jenkins in Emperor v. Omkar
Rampratap, was cited with approval:-
"To impose criminal liability under Section 304-A, it is necessary
that the death should have been the direct result of a rash and
negligent act of the accused, and that act must be the proximate
and efficient cause without the intervention of another's
negligence. It must be the causa causans; it is not enough that it
may have been the causa sine qua non."
The above said view of the law has been generally followed by High
Courts in India. The same view has been reiterated in
Kishan Chand
& Anr. v. The State of Haryana.
In Juggankhan v. The State of Madhya Pradesh,
the accused, a
registered Homoeopath, administered 24 drops of stramonium and a
leaf of dhatura to the patient suffering from guinea worm. The
accused had not studied the effect of such substances being
administered to a human being. The poisonous contents of the leaf
of dhatura were not satisfactorily established by the prosecution.
The Supreme Court exonerated the accused of the charge under
Section 302 IPC. However, on a finding that stramonium and dhatura
leaves are poisonous and in no system of medicine, except perhaps
Ayurvedic system, the dhatura leaf is given as cure for guinea
worm, the act of the accused who prescribed poisonous material
without studying their probable effect was held to be a rash and
negligent act. It would be seen that the profession of a
Homoeopath which the accused claimed to profess did not permit use
of the substance administered to the patient.
The accused had no knowledge of the effect of such substance being
administered and yet he did so. In this background, the inference
of the accused being guilty of rash and negligent act was drawn
against him. Thus the principle which emerges is that a doctor who
administers a medicine known to or used in a particular branch of
medical profession impliedly declares that he has knowledge of
that branch of science and if he does not, in fact, possess that
knowledge, he is prima facie acting with rashness or negligence.
Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr
was a case under Fatal Accidents Act, 1855. The duties which a
doctor owes to his patients came up for consideration. The Supreme
Court held that a person who holds himself out ready to give
medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for that purpose. Such a person
when consulted by a patient owes him certain duties, viz., a duty
of care in deciding whether to undertake the case, a duty of care
in deciding what treatment to be given or a duty of care in the
administration of that treatment. A breach of any of those duties
gives a right of action for negligence to the patient.
The practitioner must bring to his task a reasonable degree of
skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and
competence judged in the light of the particular circumstances of
each case is what the law requires. The doctor no doubt has
discretion in choosing treatment which he proposes to give to the
patient and such discretion is relatively ampler in cases of
emergency. In this case, the death of patient was caused due to
shock resulting from reduction of the fracture attempted by doctor
without taking the elementary caution of giving anesthetic to the
patient. The criminal negligence or liability under criminal law
was not an issue before the Court as it did not arise and hence
was not considered.
In
Poonam Verma v. Ashwin Patel and Ors
a doctor registered as
medical practitioner and entitled to practice in Homoeopathy only,
prescribed an allopathic medicine to the patient. The patient
died. The doctor was held to be negligent and liable to compensate
the wife of the deceased for the death of her husband on the
ground that the doctor who was entitled to practice in homoeopathy
only, was under a statutory duty not to enter the field of any
other system of medicine and since he trespassed into a prohibited
field and prescribed the allopathic medicine to the patient
causing the death, his conduct amounted to negligence per se
actionable in civil law.
In
Achutrao Haribhau Khodwa and Ors. v State of Maharashtra and
Ors
the Supreme Court noticed that in the very nature of medical
profession, skills differs from doctor to doctor and more than one
alternative course of treatment are available, all admissible.
Negligence cannot be attributed to a doctor so long as he is
performing his duties to the best of his ability and with due care
and caution. Merely because the doctor chooses one course of
action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the
medical profession. It was a case where a mop was left inside the
lady patient's abdomen during an operation. Peritonitis developed
which led to a second surgery being performed on her, but she
could not survive. Liability for negligence was fastened on the
surgeon because no valid explanation was forthcoming for the mop
having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'.
In
Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr.
the legal
decision is almost firmly established that where a patient dies
due to negligent medical treatment of the doctor, the doctor can
be made liable in civil law for paying compensation and damages in
tort and the same time, if the degree of negligence so gross and
his act was reckless as to endanger the life of the patient, he
would also be made criminally liable to offence under Section
304-A IPC. "Thus a doctor can not be held criminally responsible
for patient's death unless his negligence or incompetence showed
such disregard for life and safety of his patient as to amount to
a crime against the State".
In the case of
Jacob Mathew v. State of Punjab
three Judge Bench of Supreme Court by order quashed prosecution of
a medical professional under Section 304-A/34 IPC and disposed of
all the interlocutory applications that doctors should not be held
criminally responsible unless there is a prima-facie evidence
before the Court in the form of a credible opinion from another
competent doctor, preferably a Government doctor in the same field
of medicine supporting the charges of rash and negligent act.
The result of these decisions can be summed up as:
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