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Healthcare Law And ADR

In recent times, healthcare law has been witnessed as an emerging field of law. Cases with regard to healthcare are rising exponentially leading to severe impact on healthcare system. According to reports, India witness 5.2 million cases of medical negligence each year. In 2018, 2600 cases were seen merely in district level

With the rising cases in healthcare law, it is of paramount importance to keep a check on healthcare system and make laws which would prevent malpractices and medical negligence in the healthcare area

It is very important for alternate dispute resolution mechanism to resolve certain cases of health law which don't require court assistance or litigation procedure in order to quickly and fairly resolve medical disputes and health law cases.

What is healthcare law

According to the United Nations, Health laws are for all aspects of health. There are rules and responsibilities of government, health workers, medical practitioners, companies, civil society and a country's population. Together these rules make up the legal framework or legal architect for health. It deals with duty of care of medical practitioner and healthcare workers, rights of patients, practice of caregivers, etc.

It deals with cases where there is negligence on part of medical practitioner, wrong treatment by medical practitioner, any duty of care which should be done by the practitioner or any healthcare worker/ staff which he/she didn't do leading to any medical issue/ problem/ liability, etc.

Healthcare laws are the bunch of rules and regulations that regulates Medical Practitioners and healthcare workers. It may be witnessed that in many cases, it may be witnessed that healthcare workers working in hospitals, clinics, medical departments, etc. have malicious intentions or may not foster treatment, etc. with proper care or attention and being negligent from time to time.

Cases w.r.t healthcare law includes:

  1. False claim, fraud case against medical practitioner, healthcare worker, pharmacist, etc.
  2. Disputes between patient-doctor, management-patient, doctor-hospital staff, etc.
  3. Negligence on the part of the doctor, medical practitioner, healthcare staff, etc.
  4. Suggestion or provision of wrongful medicines, drugs, etc.
  5. Leaving any instrument of treatment inside the body of the patient.
  6. Erroneous billing or any bad management policy of the hospital, etc.
  7. Non-fulfillment of contractual obligations.
  8. Any malicious act of a medical professional/health worker.

Duties of Doctor and Healthcare Workers

As the doctor, healthcare worker or any physician agrees to do the operation of the patient, he/she agrees and enters into an unwritten contract and he/she shall be bound by it.

The doctor agrees to contract and hence he/she shall be bound to:

  1. He/She is bound to complete the operation till the patient is assigned under his/her custody. Only in certain circumstances like the patient dies even after reasonable care, the patient enters into a vegetative state or a coma wherein recovery or returning to a normal state is difficult or not possible, the doctor/health worker is allowed to terminate the operation or abandon the patient. A consent is also required before the doctor commits such an act or terminates the operation.
  2. The doctor or the healthcare worker is bound to take reasonable care of the patient during and after the operation. His/Her conduct shall not be negligent at any time, and there shall not be misconduct done by the doctor in such a scenario.
  3. The doctor during the operation shall show reasonable skills and shall perform the operation accordingly. The skills of the doctors and the methodology for the operation are crucial for the patient's well-being and are expected by the doctor.
  4. The doctor or the practitioner is also not allowed to do or commit any act that is beyond the power and scope of such a scenario. Such an act can be hazardous to the patient's health and, in many cases, can be life-threatening.
  5. The doctor is also bound not to reveal or disclose any professional communication or any secret communication that has taken place between the doctor and the patient or any third party.
Such skills are important to be utilized by medical professionals in order to attain a successful operation or in order to yield positive results. PB Desai vs. State of Maharashtra 2013 (15) SCC 481 was a landmark judgement which helped in laying down such guidelines and rule of the medical operation during and after the operation. They stated that "Patient must not be neglected" under any circumstance.

What is medical negligence?
Medical Negligence occurs when the doctor or medical professional fails to provide the standard of care or was negligent during the continuance of the operation. There may be rashness, recklessness, negligence or carelessness on the part of doctor or medical professional. In a medical negligence, the doctor, nurse, medical practitioner or management, etc. may be responsible for the negligent act depending upon the facts and circumstances of the case.

Dr. Laxman Balkrishna vs. Dr. Trimbark Babu Godbole (AIR 1969 SC 128) along with AS Mittal vs. State of U.P. (AIR1989 SC 1570) laid down the duties of a doctor while conducting an operation. These duties are
  1. Duty of care in deciding whether to undertake case or not
  2. Duty of care in deciding what treatment to give
  3. Duty of care in administration of treatment
It may provide liability to the doctor and to provide compensation to the plaintiff

Negligence is the breach of duty of care by the defendant which leads to the damages to the plaintiff. Defendant had omitted a duty which he had owed to the plaintiff Negligence is omission which a reasonable man would have normally done or any act which a reasonable man would have not done. Ingredients of negligence are:
  1. Defendant owed a duty of care
  2. There was a breach of such duty
  3. It led to damages to the plaintiff
Such kind of act or omission in field of medicine/ healthcare by a medical practitioner/ doctor amounts to medical negligence

What is Alternate Dispute Resolution
Alternate Dispute Resolution is a mechanism wherein a neutral third party is appointed generally so that the parties resolve their disputes amicably. This method resolves the matter without the involvement of court or outside the court settlement.

With the rising amount of pendency of cases and increasing number of cases, The ADR mechanism has become the need of the hour. Disputes under ADR mechanism are resolved without much conflicts or disputes arising.

  1. It is less time consuming
  2. It is a cost-effective method of dispute resolution
  3. It protects the interest of the parties, and both parties may be satisfied with the decision
  4. It reduces the court procedure and reduces the intervention of the court
  5. ADR helps in maintaining the relation between the party

  • There are no or less formal rules and formal procedure in an ADR mechanism
  • In some cases, the parties or any party is/are not satisfied with the decision given by the counsel
  • It is not applicable to criminal cases which are more heinous in nature and certain civil cases as well
  • The decisions are not binding in nature
  • There is limitation on the counsel to the award being provided in any dispute of ADR mechanism

METHODS OF ree will of the parties. The disputes are resolved amicably, and after both the parties agree to the decision of the mediator, which would be neutral and unbiased. Mediation is majorly done wherein the disputes relate to marriage, divorce, settlement or disputes between the husband and wife w.r.t settlement or domestic violence, etc.
  • Lok Adalat - It is a mode of ADR wherein criminal cases which are compoundable or cases of civil nature and are minor in nature are resolved. It is bound by the Legal Service Authorities Act (LSA) act and is preceded over by retired judicial officers. For Example - Cases belonging to Motor Vehicle Accidents (MVA) Act or cases regarding challans and traffic challan may be settled in Lok Adalats. These are bound according to the Article 39A Constitution of India. The resolution of disputes is done according to the method of compromise rather than of conclusion. Lok Adalats are also prescribed under Section 89 CPC (Code of Civil Procedure). According to Section 21 LSA Act - Decision of Lok Adalat would be final and binding in nature. There are no court fees required in case the matter is referred to the Lok Adalat.
  • Conciliation - It may be similar to arbitration but involves less amount of formalities than an arbitration mechanism. A conciliator is appointed by both the parties to dispute, and he/she meets the parties separately and thereby resolves their dispute. According to Section 62 of Arbitration and Conciliation Act - there must be a dispute arising before the parties in order to come to conciliation.
    • There are no or less formal rules and formal procedure in an ADR mechanism
    • In some cases, the parties or any party is/are not satisfied with the decision given by the counsel
    • It is not applicable to criminal cases which are more heinous in nature and certain civil cases as well
    • The decisions are not binding in nature
    • There is limitation on the counsel to the award being provided in any dispute of ADR mechanism

    There is limitation on the counsel to the award being provided in any dispute of ADR mechanism of a dispute arising between the parties, in order to conciliate, one party must send the other party a written invitation to conciliate, if the other party accepts the conciliation invitation, proceedings shall begin and if they reject, no conciliation proceedings would take place. Section 30 Arbitration and Conciliation Act allows conciliation process to function even if the arbitral proceedings are going on

    With the rapid emerging technology, the country has taken a drastic shift towards online mode of business, communication, etc. It arose with the advent of the unfortunate pandemic COVID-19. Similarly, Online Dispute Resolution or The ODR mode of dispute resolution took a fateful turn. Although ODR arose in late 90s but have become as an admitted mode of dispute resolution since the arrival of the COVID-19.

    In this mode of dispute resolution, the methods of ADR like mediation, negotiation, arbitration, etc. takes place in manner similar to what a physical form of ADR takes place but, the meetings and sessions of ADR takes place in an online manner through video conferencing and online meetings.

    The agreements, reports and such similar documents would be submitted online after being attested. It is beneficial as is cost effective, time saving, there would be speedy resolution, cross border disputes can be resolved easily, etc. It may be applicable in medical field as well.

    Healthcare Law and ADR mechanism:
    Health law is gaining importance and pendency of these cases have become the need of the hour in modern law. With the adamant of consumer awareness, more people are becoming aware towards the field of health law and there by the cases relating to medical litigation are exponentially rising daily. 400% increase in health law related cases can be witnessed recently. Moreover, due to the pandemic of COVID-19, there have been seen a boom in health related issues and which has in turn lead to the rise of health law cases in India.

    Why should ADR mechanism be preferred over Judicial mechanism in certain cases?
    1. It is a cost-effective method
    2. It would save a lot of time which may be consumed during litigation proceedings
    3. It would not hamper much the rights of the parties
    4. It would reduce the burden and pendency of cases in judiciary
    5. It would not slow down the functioning of hospital and treatment of patients as it will utilize less time of the doctors, medical practitioners, etc. as compared to judicial and litigation mechanisms
    6. Such a process would be effective in maintaining the Doctor-Patient relationship
    7. A secrecy of the doctor, patient, medical staff, hospital management, etc. would be maintained as ADR is done privately, unlike the judicial process which is done in open court
    Doctor-Patient relation and maintenance of secrecy are essential in the healthcare field and it is the duty of the arbitrator or any other person appointed to resolve the dispute through ADR mechanism to resolve the dispute quickly, efficiently and by maintaining relationship along with keeping the secrecy of the case within the clients and himself/ herself without letting the other people know about the same. Such a case shall be resolved only after both the parties are heard and are satisfied with the decision and are ready to compromise as the decision states it to be.

    The Supreme Court of India under Afcons Infrastructure vs. Cherian Varkey Constructions emphasized that disputes shall be settled through Alternate Dispute Resolution in many matters. Such matters may include commercial matters and civil matters which may also include the matters relating to health law or the medical law per se

    Balram Prasad vs Kunal Saha and Anrs. 2014(1)SCC327- in such case, a US based NRI women aged 36 years who was a graduate of psychology from New York died due to the medical negligence by the doctor. The Supreme Court of India provided compensation to the husband of the deceased to the extent of Rs. 5.8 Crore + interest @6 p.a. from the date of complaint till the date of its payment.

    But the case arose in 1998 and was disposed of in 2014 i.e. 16 years. In such a case, if ADR would have been applied with proper rules and procedure, the case would have been disposed of earlier and in a swift manner. Moreover, due to long pendency of case, appellant had to visit court more than 12 times and due to such process, he lost his job and had to struggle excessively in order to win the case and get the compensation. In such a case, ADR would have been feasible in order to resolve the dispute

    Varied types of issues can be resolved in ADR mechanism which relates to Healthcare Law. Those disputes which involve petty crime being done or any civil dispute arising in healthcare field can be taken up in the ADR. Tortious liability and where in the practitioner had been negligent but had caused less damage or there was less harm to the patient or doctor can be dealt under ADR.

    Cases which can be dealt in ADR include:
    Cases of wrongful treatment, medical negligence, breach of trust, etc. Disputes in medical field are resolved through Medical Council of India or Indian Medical Association through their panel which include experienced people having knowledge of law and medical. Yet in other countries, proper mechanism for the resolution of disputes are created along with proper facilities and a proper mechanism.

    Currently, there is no proper establishment of ADR mechanism in India which would resolve the disputes and no act defines and lays down the guidelines with respect to establishment of Alternate Dispute Resolution mechanism in the field of medicine and guidelines where such resolution can be established

    The healthcare field has introduced various modes and models of Dispute resolution; they include:
    1. The Veteran Affair (VA) model- In this model, the practitioner or the doctor are required to disclose each and every fact and circumstances of the error or the negligence occurred and also what the practitioner had done or would have done in order to mitigate or reduce the damage. Full disclosure agreement is made which is signed by all the parties. The defendant party or the party held liable is required to compensate the other party. Compensation in this model can be through corrective medical or surgical action or through monetary awards or compensation.
    2. The University of Michigan Model- It was adopted in 2001 by the Michigan Health Care System. Its basic objective was to compensate the patient in cases where medical expenses are exorbitantly high and unreasonable moreover, it leads to injury to the patient. It also focused to learn from the mistakes and the experiences of the patient. Herein, an open discussion takes places wherein errors and negligence of the medical staff and doctor are discussed and methods which can be used to avoid it.
    3. The Pew mediation and ADR Model- This model of ADR in Healthcare Law was introduced in 2002. It was basically introduced in order to improve to constraints, relationship and communication between the physician and the patient who is in distress. It also focused in briefing the disclosure communication and also it allowed and encouraged the usage of mediation as a procedure for settlement of disputes arising in the healthcare law. Such a process of dispute resolution helped in increasing the transparency between the patient and the physician and also helped in facilitating more discussion amongst patient and the physician.
    4. The Chicago Rush Medical Central Model- Such a model was developed in 1995 and is a mode of mediation. It involves certain steps and procedure which are to be followed by the parties in the dispute. In the beginning, an exchange of pre mediation submission is done then brief presentations are given from both the sides and the caucus is decided by the parties. Such a procedure also motivates both the parties as they are given opportunity to choose the mediators. The plaintiff is also given the opportunity to choose one lawyer from a group of specialized medical malpractice lawyers. Subsequently, the process of mediation begins.
    5. The Internal Neutral Mediator Method- An ombudsman is utilized in this method in order to resolve the dispute arising in the healthcare sector. An ombudsman act as a neutral party who is assigned to resolve a dispute. They are trained to participate in process of disclosure. After deep analysis and study, an ombudsman tries to lay down the required method or route which would be important to resolve the dispute and come up to a fair and a neutral decision. The internal neutral mediator method was first used in Maryland, United States of America.

    Different modes of ADR can be used in order to resolve the disputes arising in the health law. Such methods include Arbitration, Mediation, Conciliation and Lok Adalats. The Arbitration and Conciliation Act 1986 and Legal Service Authorities Act 1987 lays down laws and methods through which the process of resolution of dispute can be done in the Healthcare Sector. The method of ADR for healthcare law functions as: -
    1. Section 22A(a) Legal Service Authorities Act states establishment of permanent Lok Adalat for the "Public Utility Service" as defined under Section 22A(b) LSA Act.

      Section 22A (b)(v) LSA Act includes service of hospitals and dispensaries within the ambit of "Public Utility Activities" and can establish a Lok Adalat for the settlement of dispute after following certain conditions. Lok Adalat can be established in a given date wherein the disputes are resolved quickly and huge amount claims are settled in lower prices. Judges may as per their opinion may send the pending matter to the Lok Adalat after considering the facts and circumstances accordingly.
    2. Healthcare arbitration- It is not very commonly practiced form of dispute resolution taken up in the healthcare sector. The Court would refer the case to Arbitration and the parties would by their consent appoint an arbitrator who would act as a neutral party and would be hearing the disputes and would resolve them. He shall refer to and shall give the decision according to The Arbitration and Conciliation Act, 1996 and shall abide by the rules and regulations which are laid down in the act. Court would refer an arbitration in case only where the disputes amounts to such that of Medical Negligence, breach of contract, any tortious liability in healthcare field, any civil liability against the hospital or any person associated thereby in the incident, arbitration may also be referred in any fraudulent activity or any malicious activity involving money or such transactions. The arbitrator would after hearing the disputes of both the sides, provide the decision according to the facts of the matter. He, at last would create an Arbitration Agreement which must be signed by both the parties to dispute as well as the arbitrator being appointed and shall be accepted by both the parties.
    3. Healthcare Mediation- An appointed mediator would decide the outcome of the ADR mechanism by consent of both the parties. The decision may not be binding in nature to the parties to dispute. Only civil disputes or disputes involving minor or petty crimes shall be referred in Mediation.

    Health law and Indian Penal Code
    The basic objective of the Indian Penal Code is to classify various kinds of offences and providing punishment for them after considering all the facts, circumstances and considering the nature of offence. In the field of medicine, there may be certain cases or acts which may tend to criminal liability and may be of serious nature. For such circumstances, BNS may be required along with health law.

    Section 304A IPC criminalizes any act which is rash in nature or is done in a negligent manner and subsequently, it leads to death of any individual. Accused may be liable to pay fine or imprisonment not extending 2 years or both. Similarly, a medical professional who due to his/her negligent act causes death of his/her patient during the operation may be liable under Section 304(A) IPC.

    Except in certain cases, Section 3 of Medical Termination of Pregnancy act allows termination of pregnancy otherwise it is a punishable offence in Healthcare law. Medical Practitioners can also be held liable if they commit any act which may be done breaching Section 6 Pre-Conception and Pre-Natal Diagnostic Technique Act or Section 3A of Pre-Conception and Pre-Natal Diagnostics Technique Act the act which prohibits determination of the sex of the unborn child or prohibits the sex selection of an unborn child. Such act would lead to a criminal offence.

    Medical Practitioners, management, hospital or any staff may also be liable for other offence being committed within the hospital like cheating (Section 415IPC), Forgery (Section463IPC), Mischief (Section 425IPC), Criminal Breach of Trust ( Section 405IPC), Causing Miscarriage (Section 312IPC), etc.

    Hence, it can be clearly made out that each and every act of doctors and the hospital or its staff are bound by law and they can also be liable for criminal offence if the act is of such nature which induces a criminal liability. Medical Professional or the hospital must take special care of their actions and shall abide by the rules or law which are bound to them to be followed.

    A crime is instituted wherein a person does an act which is illegal in nature or is barred by law and such an act affects any individual or society, such acts are punishable under the law and are offence in eyes of law. It is applicable to every person who is a citizen/person of the country according to the Section 11 of IPC.

    Health Law and Law of Torts
    Torts are those civil wrongs which affect individuals and such damages are unliquidated or cannot be estimated in numeric or any other term. Section 2m Limitations Act defines torts as civil wrong which is not exclusively a breach of contract or breach of trust. There may be an act or any omission on the part of defendant which leads to damages to the plaintiff. In case of tort wrong, there should be a legal damage due to the act or due to the omission i.e. injuria sine damnum.

    In such case, a legal right of a person is hampered even though there is no injury and is enforceable in court of law. Where there is no hamper of legal right but the person suffers injury, such act is Damnum Sine Injuria. Law of Torts includes defamation, negligence, nuisance, strict and absolute liability, trespass to the person, abuse of legal procedure like malicious prosecution and false imprisonment, etc.

    Certain medical cases, a tort liability may arise.
    For example- in case where a doctor keeps a foreign object inside the body of patient, it would amount to nuisance as there is unlawful interference in the body of the patient and such may also give rise to certain health issues or safety concerns to the patient. Similarly, a doctor who fails to obey the duty of care owed by him towards his patient during the course of occupation and subsequently damage is caused amounts to medical negligence.

    Certain tortious liability in medical profession are:
    1. Negligence in Free Eye Camp/ Camps of State - State of Chandigarh vs. Gajendra Singh court stated that it is the duty of the state to keep up the justice and follow the assurance intended to be acted upon.
    2. Lack of preventive measures - Wherein, the medical staff or the management at the hospital do not provide preventive measures or do not have such measures like provision of gloves, sanitized syringes, masks, apron, etc., there may arise a tortious liability. In Suraj Mal Chhajer vs State of Tamil Nadu, a young doctor contracted Hepatitis-B and subsequently died due to the lack of provision of preventive measures.
    3. Penis cut off - Any deliberate or negligent act wherein the medical practitioner cuts off the penis of the patient amounts to arising of tortious liability against the doctor.
    4. Uterus removed without justification - There shall be prior consent to be taken before removing the uterus of a patient as it may arise liability against the doctor.
    5. Foreign matter left behind - Any foreign object left in the patient's body may affect the patient and may even lead to his/her death. The doctor may be liable for negligence.
    6. Lack of advanced equipment - If the hospital is using outdated or obsolete technology and such causes any harm, it would be a negligent act towards the patient.
    7. Doctor delays in operation - Wherein the medical practitioner or the management delays or retards the operation or admission of the patient, and such an act leads to harm or death of the patient, a tortious liability against the doctor or the manager may arise.

    The rising number of cases and pendency in judgement has shown an urge to dive into the process of ADR in health law. Health law is an important yet undiscovered field wherein a legal system deems to exist but such a system per se is outdated and primitive as compared to modern healthcare system. It is also important that there should be awareness amongst the individuals and groups regarding health law and general rights and duties of the doctors and the patients.

    Healthcare law has shown a positive result in the matter of awareness as well adjudication of cases. But during pandemic of COVID-19, the medical negligence cases and the malafide actions of the doctors and medical practitioners increased exponentially. In 2019, the highest number of cases of medical negligence were witnessed. All and all, the Healthcare industry has seen a boom with regard to the cases and awareness.

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