In the law of negligence, professionals such as lawyers, doctors, architects, etc. are considered to be in that category of persons who profess some special skills. 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.
A person engaged in some particular profession is supposed to have the requisite knowledge and skill needed for the purpose and has a duty to exercise a reasonable degree of care in the conduct of his duties. The standard of care needed in a particular case depends on the professional skill expected from persons belonging to a particular class. A surgeon will be just by the standard of an average practitioner of class to which he belongs or holds himself out to belong. In the case of a specialist, a higher degree of skills is needed. The essential components of negligence are three:
- Duty to take care of any person.
- The aforementioned duty was breached.
- The breach of duty resulted in damage.
Taking only medical negligence into account, when a medical practitioner attends his patients, he owes him following duties of care as per the judgment given in Dr. L.B. Joshi v. Dr. T.B. Godbole1:
- A duty of care in deciding whether to undertake the case.
- A duty of care in deciding what treatment to give.
- A duty of care in the administration of the treatment.
A breach of any of the above-mentioned duties gives a right of action for medical negligence to the patient.
Provisions with Respect To Medical Negligence
Medical negligence can have civil as well as criminal liability and is dealt with certain provisions of the following laws:
Indian Penal Code, 1860
Section 304A (inserted by the Indian Penal Code Amendment Act 27 of 1870) of the Indian Penal Code, 1860 encapsulates the law regarding causing death by negligence. It covers those cases where a person causes the death of another person by such an act which is rash or negligent but there is no intention to cause death and no knowledge that the act will cause death. The punishment prescribed under this section is either imprisonment for a term which may extend to two years or fine or both.
Essential ingredients which need to be proved under section 304A of IPC are:
- There must be the death of the person in question.
- The accused must have caused such death.
- That such act of the accused was rash or negligent and that it did amount to culpable homicide.
A landmark case regarding this provision is Juggan Khan v. State of Madhya Pradesh2, the facts of which are as follows:
- The Appellant who was a registered homeopath administered 24 drops of mother tincture stramonium and a leaf of dhatura to Smt. Deoki, aged 20 years, who had been suffering from guinea worm for 6 weeks.
- She was accompanied by her mother, uncle, and aunt to the clinic of the Appellant in pursuance of the advertisement made by the Appellant, that he treated guinea worm. After having his medicine, she started feeling restless and fell ill and eventually died.
- The Supreme Court held that a doctor administered poisonous medicine to his patient without thoroughly studying what might be the effects of such medicine is liable under section 304A of the Indian penal code for causing death by rash and negligent act.
Regarding the burden of proof, it generally lies on the Complainant. The onus is on him to prove that the doctor was negligent in his duty which he breached and it eventually resulted in causing damage. Whether the allegations are against an average doctor or a highly skilled doctor, things can go wrong anywhere but, it has to be proved that the alleged negligent doctor did not take reasonable care which he was ought to take. The law regarding the same was confirmed in the case of Calcutta Medical Research Institute v. Bimalesh Chaterjee3.
The defense against the aforesaid provision is provided under Sections 80, 81 and 88 of the Indian Penal Code, 1860 the essentials of which are:
- Accident or mishap caused.
- Without any criminal intention or knowledge.
- While doing a lawful act through lawful means.
- With reasonable care and caution.
- Act likely to cause harm.
- An act has done in good faith without any intention to cause harm.
- To protect or avoid damage to a person or property.
- Act performed in good faith for the benefit of other people.
- Though high risk involved no intention to cause harm.
- Explicit or implicit consent given by the patient.
- Tort & Consumer Protection
Under civil law, damages are given in the form of compensation. It’s not necessary that only if the doctor is negligent in performing his duty then only the Plaintiff would be entitled to get damages. Suppose the staff of the hospital was negligent in performing their duties towards the patient admitted then the hospital can be held vicariously liable for the negligence of their staff.
Regarding consumer protection, one must know who falls under the ambit of the definition of “consumer”. As per the Consumer Protection Act, 1986 (amended in 2019), a customer means anyone who:
- Buys any good.
- Hires any service.
- Make purchases online.
- Uses the goods or services to earn a livelihood.
As soon as any person becomes a consumer under the aforementioned definition of “consumer” under the Consumer Protection Act, 1986, then he/she can sue the seller or the service provider for the deficiency of services provided by him under Section 2(1) (o) of the said act. Therefore, all the medical services provided fall under this act which was clearly explained in the case of Indian medical association v. VP Shantha and Ors4, the Apex Court held that:
- Service rendered to a patient by a medical practitioner (except for the services rendered free of charge) by way of consultation, diagnosis, and treatment, both medical and surgical, would fall within the ambit of “service” as defined in Section 2 (1)(o) of the Consumer Protection Act.
- The fact that the medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/ or State Medical Councils would not exclude the service rendered by them from the ambit of the Consumer Protection Act.
- A service rendered free of charge to everybody would not be a service as defined in the Act.
- The hospitals and doctors cannot claim it to be a free service if the expenses have been borne by an insurance company under medical care or by one’s employer under the service condition.
Judicial Perspective – When & Where To Approach for Enforcement of Rights
The complaints under the Consumer Protection Act, 1986 are filed in the following commissions whose pecuniary jurisdictions were recently revised under the amendment carried out for the Consumer Protection Act in 2019:
- The District Commission for less than Rs. 1 Crore.
- The State Commission for more than Rs. 1 Crore but less than Rs. 10 Crores.
- The National Commission for more than Rs. 10 Crores.
Apart from the aforementioned judicial authorities, one can approach and file a writ petition in the High Court under Article 226 & Article 227 of the Indian Constitution & in the Supreme Court under Article 32 of the Indian Constitution for the preservation of their fundamental right to life guaranteed under Article 21 of the Indian Constitution. The Supreme Court of India in various cases has viewed that the right to life as enshrined in Article 21 of the Constitution of India also includes the right to health and medical treatment. The right to life would be meaningless unless medical care is assured to a sick person5.
The provisions regarding appeals were also amended under the amendment carried out for the Consumer Protection Act in 2019. The limitation period for an appeal against an order to an appellate authority are now as follows:
- From Orders of District Commission to State Commission – Within 45 days of the order passed
- From Orders of State Commission to National Commission – Within 30 days of the order passed
- From Orders of National Commission to the Supreme Court – Within 30 days of the order passed
Some More Cases Regarding Medical Negligence
- A doctor registered as a medical practitioner and entitled to practice in homeopathy only, prescribed an allopathic medicine to the patient.
- As a result, 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.
- The doctor who was entitled to practice in homeopathy only was held under a statutory duty not to enter the field of any other system of medicine.
- Since he was passed into a prohibited filled and prescribed the allopathic medicine to the patient causing his death, therefore, his conduct amounted to negligence and was actionable under civil law.
- The patient had been suffering from hepatitis during his stay in the hospital. This fact was not taken note of before surgery was performed on him, which led to the deterioration of his condition.
- The report of the expert team clearly indicated that there was negligence in the treatment of the patient and vital parameters were not taken note of before performing the surgery.
- It was also reported by one of the members of the team that the patient was suffering from jaundice and if the operation would be done during jaundice, the condition could become more serious.
- In view of the above facts, the Madhya Pradesh High Court held the doctors of the hospital liable for medical negligence in the treatment of the patient.
- The Plaintiff got himself operated upon for sterilization for getting money by falsely stating that he was married and had two children.
- The father of the Plaintiff pleaded that the Plaintiff was of unsound mind and was not capable of consenting to the operation and that the defendant should be liable for performing the operation of vasectomy on an unmarried person.
- The Court found that when the Plaintiff went for the operation there was nothing to indicate from his conduct or behavior that he was mentally ill, rather he showed a proper understanding of the things.
- Under the circumstances, it was held that there was no negligence on the part of the medical authorities in performing the said operation and they were therefore not liable for the same.
- The Plaintiff was a young college student complaint of fever and loss of appetite. There was a bit of a boil near the lower side of his abdomen.
- After some initial treatment for malaria etc. The Plaintiff got admitted to Bombay hospital. The doctors diagnosed cancer of lymph glands of the initial curable stage.
- He was given a treatment of chemotherapy and radiation. The Plaintiff was discharged but was advised to visit the hospital every fortnight for chemotherapy.
- But the Plaintiff started to take treatment from other doctors as well. Due to certain complications, after a few years, a major operation was performed on him.
- The Plaintiff claimed compensation of rupees 47 lacs from the Bombay hospital alleging that all these complications had occurred due to the negligence of the medical staff of the Bombay hospital.
- It was found that the treatment given by a Defendant hospital was necessary to save the Plaintiff’s life and they were not at all negligent in performing their duties and therefore were not held liable.
In the case of medical negligence, it all boils down to an error of judgment. In the case of M/s Spring Meadows Hospital v. Harjot Ahluwalia10, the lordships of the Supreme Court said that and error of judgment is not necessarily negligence.
The error of judgment may or may not be negligent. It depends on what kind of error it is. If it is such an error that a reasonable man practicing the medical profession wouldn’t ordinarily commit then that error of judgment is negligent whereas if it is such an error which any medical practitioner might commit even while acting with ordinary care then and that error of judgment is not negligent.
A simple lack of care or error of judgment is not proof of negligence on the part of a medical professional. So as long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence mainly because a better alternative course method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
- A.I.R. 1989 P. & H. 183, at 185.
- A.I.R. 1965 SC 831.
- III (1995) C.P.J. 1 (S.C.); A.I.R. 1996 S.C. 550.
- Sharma MK, “right to Health and Medical Care as a Fundamental Right” A.I.R. 2005, p. 255.
- (1996) 4 S.C.C. 332.
- A.I.R. 2012 M.P. 21.
- 1987 ACJ. 628.
- A.I.R. 1998 Bom. 373.
- (1998) 4 S.C.C. 39.
Student, ILS Law College, Pune
Siddhant is an aspiring lawyer who is pursuing his final year of 3 years LL.B from ILS Pune. He is a diligent & meticulous person who possesses experience in both Corporate & Litigation sector and wishes to aware the general public regarding some crucial aspects of law in as simple language as possible. Siddhant is always willing to groom himself and prove to be a valuable asset to any organization he becomes a part of.