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16 Doctor-PatientRelation PDF
16 Doctor-PatientRelation PDF
16 Doctor-PatientRelation PDF
16
Doctor-Patient Relationship
Care, Consent and Negligence
Sapna Chadah
Assistant Professor
Administrative & Constitutional Laws
CCS, IIPA
Price: ` 50
ISBN : 81-86641-75-0
2014 edition
Reprinted 2015
Printed at : New United Process, A 26, Phase II, Naraina Indl Area,
New Delhi-110028
PREFACE
Medical profession has long been one of the most trusted social
institutions due to high standard of education, ethical standards that
protect the interests of patients and recognising that public trust is
the greatest asset. However, like all social institutions medicine has
also witnessed a fall from the public trust. Since the late 1990s, due
to constant commercialisation of the profession the relationship
between doctors and patients has undergone a change. The impact
of socio-economic developments on medical practice has been
phenomenal. Slowly and steadily, the medical profession has been
driven by the market forces resulting in decline of professional ethics.
The medical profession's mandate to take care of clients has to some
extent been undermined by the influx of money into health care. The
rise of patient consumerism, the advent of evidence-based medicine,
and the increasing power of the pharmaceutical industry are some
of the recent challenges to the profession. Interpersonal trust in
doctor-patient relation depends on the degree to which patients see
their doctors as competent, responsible, and caring. The
commercialization of medical care, conflicts of interest, media
attention to medical uncertainty and error, and the growth of managed
care are all challenging patients' trust in the profession.
The current situation of the medical market place makes it
increasingly difficult to cleanly separate market and profession. The
reigning metaphor of medical consumerism is that medical care is a
service like any other, and that patients are consumers who can
choose who should provide medical services and even what kind of
services to purchase. Increasingly health is viewed as 'commodity'
and individuals as health care 'consumers'. The consumerism has
become pervasive in health care, reflecting a changed relationship
between health care professionals and patients. The patient-physician
relationship has shifted away from a paternalistic relationship toward
a client-provider one. The growing health care costs, publicized
malpractice lawsuits, and excessive treatments and tests have further
contributed to the increasing distrust of physicians. The rise in
vi
Page
Preface v
Introduction 1
Changing Doctor-Patient Relationship 3
Regulation of Medical Profession 4
Negligence-Concept and Definition 15
Medical Negligence 16
Standard of Care 18
Duties of a Doctor 25
Duties of Doctor under Code of Medical Ethics 26
Liability under Other Laws 30
Liability for Professional Misconduct 31
Criminal Liability 31
Contractual Liability 39
Medical Services under Consumer Protection Act 39
Instances of Deficiency in Medical Services 43
Doctrine of Informed Consent 49
Burden of Proof 58
Applicability of Res ipsa loquitur in Medical Negligence 67
Emergency Care 71
Compensation 75
Vicarious Liability 82
Medical Negligence: What Patients should Know? 84
Conclusion 85
Annexure 87
DOCTOR-PATIENT RELATIONSHIP–
CARE, CONSENT AND NEGLIGENCE
INTRODUCTION
The right to health has been recognized as one of the basic human
rights. The Universal Declaration of Human Rights, 1948 in Article
25 establishes that “Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control”. Article 12 of the International
Covenant on Economic, Social and Cultural Rights, 1966 states: “The
States Parties to the present Covenant recognize the right of everyone
to the enjoyment of the highest attainable standard of physical and
mental health”. Right to life enshrined in Article 21 of the Constitution
of India includes right to health. The jurisprudence of personhood or
philosophy of right to life envisaged under the said Article enlarges
in its sweep to encompass human personality in its full blossom with
invigorated health, which is a wealth to the citizen to earn his livelihood,
to sustain the dignity of the person to live a life with dignity. In fact
the dream of healthy nation is engrafted in the Directive Principles
of State Policy as an integral part of the Constitution. Article 21 of
the Constitution of India casts obligation on State and medical
professionals to preserve life. Every doctor whether at a Government
hospital or otherwise has the professional obligation to extend his
services with due expertise for protecting life. No law or state action
can intervene to avoid or delay the discharge of the paramount
obligation cast upon the members of medical profession. The
obligation being total, absolute and paramount, laws of procedure
whether in statutes or otherwise, which would interfere with the
discharge of this obligation cannot be sustained and must, therefore,
2 DOCTOR-PATIENT RELATIONSHIP
Kounteya Sinha, Docs will have to spend more time with patients, Times of
2
people. This includes 50,000 for PHCs; 0.8 lakh for community health
centres (CHCs); 1.1 lakh for 5,642 sub-centres and another 0.5 lakh
for medical college hospitals. According to Union Health Ministry
data, the present doctor-population ratio is 0.5 per 1,000 and the
target by 2025 is 0.8 per 1,000. In the current scenario of doctor-
population ratio, the number of doctors required in the rural areas
was enormous and target of one-doctor-for-1,000 population cannot
be met before 2020. According to MCI estimates the targeted doctor-
population ratio of 1: 1000 would be achievable by the year 2031.
According to the 12th Plan document, 6,91,633 physicians are available
during the 11th Plan and expected availability for the 12th Plan by
2017 is 8,48,616 at annual capacity of 42,570 doctors.3
If shortage of doctors is one problem, their unwillingness to work
in the rural hinterland is another, creating artificial scarcity in the
area and high concentration in another. As per rural health statistics
2012, there were 1,48,366 sub-centres, 24,049 PHCs and 4,833 CHCs
functioning in the country. Forget about sub-centres, doctors are not
available even in CHCs. Compared to requirement for existing
infrastructure, there was a shortfall of 74.9 percent of surgeons,
65.1 percent of obstetricians and gynaecologists, 79.6 percent of
physicians and 79.8 percent of paediatricians. Overall, there was a
shortfall of 69.7 percent specialists at the CHCs.4
Changing Doctor-Patient Relationship
The doctor-patient relationship is at the center of conception of
medicine. The relationship between doctors and their patients is
shaped by our understanding of medicine as a vocational profession,
fundamentally concerned with well-being and promoting health.
However, the relationship between doctors and their patients has
been changing and is currently under more pressure than ever before.
The first physician and his relationship with his patients was unique
and unquestioned. However, the classical concept of doctor-patient
relationship prevalent in the olden days has undergone drastic changes
in the present age.
3
U Anand Kumar, (22nd September 2013), India has just one doctor for every
1,700 people, http://www.newindianexpress.com/magazine/India-has-just-one-
doctor-for-every-1700-people/2013/09/22/article1792010.ece#.Uw1xJmKSwwo
4
Ibid
4 DOCTOR-PATIENT RELATIONSHIP
5
Indian Medical Council Act, 1956, Section 3
6
Ibid Section 4
7
Ibid Section 5
8
Ibid Section 6
9
Indian Medical Council Act, 1956 Preamble
6 DOCTOR-PATIENT RELATIONSHIP
manner by any such person, enter his name in the Indian Medical
Register, provided that the Registrar is satisfied that the person
concerned possesses a recognised medical qualification.13 If the name
of any person enrolled on a State Medical Register is removed there
from in pursuance of any power conferred by or under any law
relating to medical practitioners for the time being in force in any
State, the Council shall direct the removal of the name of such person
from the Indian Medical Register.14
The Council may prescribe standards of professional conduct
and etiquette and a code of ethics for medical practitioners. The
violations of the Regulations made by the Council in this regard shall
constitute professional misconduct. 15 The Council has made
regulations for “Standards of Professional Conduct, Etiquette and
Code of Ethics” known as Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations notified in 2002, which
should be observed by medical practitioners. These are mandatory
and followed by all other State Medical Councils.
The Dentists Act, 1948
The Act was enacted to make provision for the regulation of
the profession of dentistry and for that purpose to constitute Dental
Councils.16 The Dental Council of India constituted by the Central
Government, is a Statutory Body incorporated under an Act to
regulate the Dental Education and the profession of Dentistry
throughout India.
As per the provisions of the Act, the functions of Dental Council
of India include – (i) Maintenance of uniform standards of Dental
Education – both at Undergraduate and Postgraduate levels. It
envisages inspections/visitations of Dental Colleges for permission
to start Dental colleges, increase of seats, starting of new P.G. courses;
(ii) To prescribe the standard curricula for the training of dentists,
dental hygienists, dental mechanics and the conditions for such training;
(iii) To prescribe the standards of examinations and other requirements
to be satisfied to secure for qualifications, recognition under the
13
Ibid Section 23
14
Ibid Section 24
15
Ibid Section 20A
16
The Dentist Act, 1948, Preamble
8 DOCTOR-PATIENT RELATIONSHIP
17
Indian Medicine Central Council Act, 1970 Preamble
18
Ibid Section 2(1)(e)
19
Homoeopathy Central Council Act, 1973 Preamble
DOCTOR-PATIENT RELATIONSHIP 9
h t t p : / / w w w. i n d i a n n u r s i n g c o u n c i l . o r g / a b o u t - i n d i a n - n u r s i n g -
21
22
General Information-About PCI. http://www.pci.nic.in/GeneralInformation/
AboutPCI/Introduction.aspx
23
The Clinical Establishments (Registration and Regulation) Act, 2010; http://
clinicalestablishments.nic.in/cms/Home.aspx
12 DOCTOR-PATIENT RELATIONSHIP
33
Ibid Section 12
34
Ibid Section 13
35
Ibid Section 18
36
Ibid Section 40
37
Ibid Section 41(1)&(2)
DOCTOR-PATIENT RELATIONSHIP 15
44
1968 (118) New Law Journal 469
DOCTOR-PATIENT RELATIONSHIP 17
the best of his ability and with due care and caution. Medical opinion
may differ with regard to the course of action to be taken by the
doctor treating a patient, but as long as a doctor acts in a manner
which is acceptable to the medical profession and the court finds
that he has attended on the patient with due care, skill and diligence.52
The Bolam case in common laws jurisdictions is weakened in recent
years by reasons of series of decisions in Australia [Rogers v. Whitaker:
(1992) 109 Aus LR 625 and Roenbreg v. Percival 2001 HCA 18];
Canada [Ribl v. Hughes: (1980) 114 DLR 3d 1] and the United States
and even in the United Kingdom. Bolitho v. City and Hackney Health
Authority, [(1997) 4 All ER 771 (HL)] is one of the cases where the
Court got away from yet another aspect of Bolam case.
Bolitho Case
In this case53 Patrick, a two years old boy was admitted to St.
Bartholomew’s suffering from croup and was treated under the care
of the senior pediatrics registrar, Dr. Janet Horn, and the senior house
officer in pediatrics, Dr. Keri Rodger. He suffered catastrophic brain
damage as a result of cardiac arrest induced by respiratory failure.
Dr. Horn was charged of medical negligence for breach of her duty
of care as she did not attend Patrick after receiving such telephone
calls or arrange for a suitable deputy to do so. The real question was
what would Dr. Horn or that other doctor have done, or what should
they have done. Whether Dr. Horn would have intubated (or made
preparations for intubation), and, even if she would not, whether
such a failure on her part would have been contrary to accepted
practice in the profession”. If she would not have intubated, would
that have been negligent?
In this case House of Lords observed that: In the Bolam case
House of Lords has stated that the defendant had to have acted in
accordance with the practice accepted as proper by a “responsible
body of medical men” and had referred to “a standard of practice
recognised as proper by a competent reasonable body of opinion”
and “respectable” body of professional opinion. The use of these
adjectives -responsible, reasonable and respectable—all show that
52
Achutrao Haribhabu Khodwa & Ors. vs State of Maharashtra & Ors. (1996)
2SCC 634
53
Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771
22 DOCTOR-PATIENT RELATIONSHIP
the court has to be satisfied that the exponents of the body of opinion
relied upon can demonstrate that such opinion has a logical basis. In
particular in cases involving, as they so often do, the weighing of
risks against benefits, the judge before accepting a body of opinion
as being responsible, reasonable or respectable, will need to be
satisfied that, in forming their views, the experts have directed their
minds to the question of comparative risks and benefits and have
reached a defensible conclusion on the matter.
When the evidence shows that a lacuna in professional practice
exists by which risks of grave danger are knowingly taken, then,
however small the risk, the court must anxiously examine that
lacuna—particularly if the risk can be easily and inexpensively
avoided. If the court finds, on an analysis of the reasons given for
not taking those precautions that, in the light of current professional
knowledge, there is no proper basis for the lacuna, and that it is
definitely not reasonable that those risks should have been taken, its
function is to state that fact and where necessary to state that it
constitutes negligence. In such a case the practice will no doubt
thereafter be altered to the benefit of patients. On such occasions
the fact that other practitioners would have done the same thing as
the defendant practitioner is a very weighty matter to be put on the
scales on his behalf; but it is not conclusive. The court must be vigilant
to see whether the reasons given for putting a patient at risk are
valid in the light of any well-known advance in medical knowledge,
or whether they stem from a residual adherence to out-of-date ideas.
In cases of diagnosis and treatment there are cases where, despite
a body of professional opinion sanctioning the defendant’s conduct,
the defendant can properly be held liable for negligence. That is
because, in some cases, it cannot be demonstrated to the judge’s
satisfaction that the body of opinion relied upon is reasonable or
responsible. In the vast majority of cases the fact that distinguished
experts in the field are of a particular opinion will demonstrate the
reasonableness of that opinion. In particular, where there are
questions of assessment of the relative risks and benefits of adopting
a particular medical practice, a reasonable view necessarily
presupposes that the relative risks and benefits have been weighed
by the experts in forming their opinions. But if, in a rare case, it can
be demonstrated that the professional opinion is not capable of
DOCTOR-PATIENT RELATIONSHIP 23
Duties of a Doctor
Doctors generally have certain duties towards their patients.
Some of the important duties which have been recognized are:
To exercise a reasonable degree of skill and knowledge and
a reasonable degree of care;
To exercise reasonable care in deciding whether to
undertake the case and also in deciding what treatment to
give and how to administer that treatment;
To extend his service with due expertise for protecting the
life of the patient and to stabilize his condition in emergency
situations;
To attend to his patient when required and not to withdraw
his services without giving him sufficient notice;
To study the symptoms and complaints of the patient carefully
and to administer standard treatment;
26 DOCTOR-PATIENT RELATIONSHIP
(1965) 1 SCR 14
57
32 DOCTOR-PATIENT RELATIONSHIP
58
(1996) 4 SCC 332
59
Dr. Suresh Gupta vs. Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422.
DOCTOR-PATIENT RELATIONSHIP 33
Jacob Mathew vs. State of Punjab and another (2005) 6 SCC 1 para 49
62
36 DOCTOR-PATIENT RELATIONSHIP
held as follows:
1. Service rendered to a patient by a medical practitioner
(except where the doctor renders service free of charge to
every patient or under a contract of personal service), by
way of consultation, diagnosis and treatment, both medicinal
and surgical, would fall within the ambit of ‘service’ as defined
in Section 2(1)(o) of the Act.
2. The fact that 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
constituted under the provisions of the Indian Medical
Council Act would not exclude the services rendered by them
from the ambit of the Act.
3. A ‘contract of personal service’ has to be distinguished from
a ‘contract for personal services’. In the absence of a
relationship of master and servant between the patient and
medical practitioner, the service rendered by a medical
practitioner to the patient cannot be regarded as service
rendered under a ‘contract of personal service’. Such service
is service rendered under a ‘contract for personal service’
and is not covered by exclusionary clause of the definition
of ‘service’ contained in Section 2(1)(o) of the Act.
4. The expression ‘contract of personal service’ in Section
2(1)(o) of the Act cannot be confined to contracts for
employment of domestic servants only and the said expression
would include the employment of a medical officer for the
purpose of rendering medical service to the employer. The
service rendered by a medical officer to his employer under
the contract of employment would be outside the purview of
‘service’ as defined in Section 2(1)(o) of the Act.
5. Service rendered free of charge by a medical practitioner
attached to a hospital/Nursing home or a medical officer
employed in a hospital/Nursing home where such services
are rendered free of charge to everybody, would not be
“service” as defined in Section 2(1)(o) of the Act. The
payment of a token amount for registration purpose only at
the hospital/nursing home would not alter the position.
42 DOCTOR-PATIENT RELATIONSHIP
the breathing and avoid mixing of particles from the food tube into
the air pipe of the human system. As the tube was not introduced, it
resulted in the food particles entering into the air pipe and blocking it,
thereby affecting the breathing of the patient and thereafter leading
to cardiac arrest. The National Commission held that in such
circumstances, the principle of res ipsa loquitur would apply because
the deceased went for biopsy but died of an event, which was not
disclosed by the appellant. It was held that cardiac arrest was
consequence of deficiency in administering anaesthesia.
In Nizam Institute of Medical Sciences vs Prasanth S.
Dhananka and others 75 the respondent Prasant S. Dhananka, a
student of Engineering, was admitted to the hospital for excision of
tumour. Immediately after the surgery, the complainant developed
acute paraplegia with a complete loss of control over the lower limbs,
and some other related complications, which led to prolonged
hospitalization and he was ultimately completely paralyzed with no
change in his sensory deficit. This made him incapable of all normal
chores. The Supreme Court held the opposite parties negligent as
they failed to take proper care in diagnosis and operation and there
was lack of informed consent. The complete investigations prior to
the actual operation had not been carried out. If a MRI or Myclography
had been performed, the intraspinal extension could well have been
revealed at the pre-operative stage which could have led to the
intervention of a Neuro Surgeon at the time of removal of the tumour
and the paraplegia perhaps avoided. On the question whether the
required consent for the excision of the tumour had been taken from
the complainant or his parents, the Court held that no consent for the
operation had been taken. The consent given by the complainant for
the excision biopsy cannot, by inference, be taken as an implied
consent for a surgery. It is clear from the evidence that there was no
urgency in the matter as the record shows that discussions for the
deferment of the proposed excision biopsy had taken place between
the complainant, his parents and the doctor and the consent for the
procedure had been obtained. However, any implied consent for the
excision of the tumour cannot be inferred. Confirming the findings
of the Commission, the Supreme Court held that the attending doctors
75
II (2009) CPJ 6 (SC)
DOCTOR-PATIENT RELATIONSHIP 47
77
NCDRC First Appeal No. 428 of 2004 decided on 28th August, 2012
DOCTOR-PATIENT RELATIONSHIP 49
adopting unfair trade practice within the meaning of section 2 (1) (r)
of the Consumer Protection Act, 1986 as well as violating the Code
of Ethics Regulations (Regulation No. 6.1) by publishing misleading
advertisement. The National Commission rejected the doctor’s
contention because the advertisement clearly held out to the
prospective patients about a kind of guarantee ‘to get rid of spectacles
and contact lenses’ and ‘to see the world at large without spectacles’.
Such a proclamation was sufficient to allure unwary intended patients
that their vision would be corrected to 6 /6 situation without the use
of the spectacles and contact lenses. In fact it was this advertisement
which had attracted the complainant to approach the respondent for
correction of his vision which could not be achieved to the extent
mentioned in the advertisement so the proclamation appeared to be
misleading. In the result appeal was partly allowed and hospital and
doctor were directed to pay lump sum compensation of `1, 00,000/-
to the complainant and also to give an undertaking before the
Commission that he will not publish any such advertisement in future.
Doctrine of Informed Consent
Informed consent means the consent of the patient to the
performance of the health care services provided by a registered
medical practitioner, that prior to the consent having been given, the
medical practitioner has informed the patient of the nature of the
proposed procedure or treatment, of those risks and alternative
treatment or diagnosis that a reasonable patient would consider
material to the decision whether or not to undergo treatment or
diagnosis.78
The doctrine of informed consent has developed in the law as
the primary means of protecting a patient’s right to control his or her
medical treatment. Under the doctrine, no medical procedure may
be undertaken without the patient’s consent obtained after the patient
has been provided with sufficient information to evaluate the risks
and benefits of the proposed treatment and other available options.
The doctrine presupposes the patient’s capacity to make a subjective
treatment decision based on her understanding of the necessary
medical facts provided by the doctor and on her assessment of her
78
K.Mathiharan & Amrit K. Patnaik, (Ed), Modi’s medical jurisprudence and
toxicology, 23rd Edn. 2005, Lexis Nexis, Butterworths at p. 100
50 DOCTOR-PATIENT RELATIONSHIP
83
IV (2007) CPJ 131 (NC)
84
Saroj Chandhoke vs. Ganga Ram Hosp. & Anr. III(2007)CPJ 189 (NC)
DOCTOR-PATIENT RELATIONSHIP 55
88
K.Mathiharan & Amrit K. Patnaik, (Ed), Modi’s medical jurisprudence and
toxicology, 23rd Edn., 2005, LexisNexis, Butterworths at p. 100
89
I (1987) ACC 445, AIR 1987 Ker 52
DOCTOR-PATIENT RELATIONSHIP 57
the patient on the day of his admission in the hospital. On the next
day his condition deteriorated fast and surgery could not be performed
on him and later he died. The main contention of the appellant was
that no surgery was done on the patient on day of admission because
of the reluctance of the patient to undergo a surgery saying that “he
had similar attacks before and he used to get relief with injections
and other medicines.” Therefore, other measures were taken to
ameliorate the condition of the patient, which grew worse by the
next day. Finally, the court delivered a verdict in favour of the
plaintiffs stating that consent under such an emergent situation is
not mandatory. The High Court observed that the consent factor
may be important very often in cases of selective operations, which
may not be imminently necessary to save the patient’s life. But
there can be instances where a surgeon is not expected to say that
‘I did not operate on him because, I did not get his consent’. Such
cases very often include emergency operations where a doctor
cannot wait for the consent of his patient or where the patient is
not in a fit state of mind to give or not to give a conscious answer
regarding consent. Even if he is in a fit condition to give a voluntary
answer, the surgeon has a duty to inform him of the dangers ahead
of the risks involved by going without an operation at the earliest
time possible. When a surgeon or medical man advances a plea
that the patient did not give his consent for the surgery or the course
of treatment advised by him, the burden is on him to prove that the
non-performance of the surgery or the non-administration of the
treatment was on account of the refusal of the patient to give
consent thereto. This is especially so in a case where the patient is
not alive to give evidence. Consent is implicit in the case of a patient
who submits to the doctor and the absence of consent must be
made out by the patient alleging it.
Section 92 of IPC offers immediate immunity for registered
medical practitioner to proceed with appropriate treatment even
without consent of the patient in an emergency situation when the
victim is incapable of understanding the nature of the treatment or
when there is no legal heirs to sign the consent.
Waiver- A patient may repose his confidence on a doctor
and request him not to furnish any information, in which case
the doctor may get a privilege of withholding information.
58 DOCTOR-PATIENT RELATIONSHIP
Burden of Proof
The general rule of negligence is that the burden of proving
negligence lies on the party who alleges it. It is for the patient
complainant to establish his claim against the medical man. If the initial
burden of negligence is discharged by the claimant, it would be for the
hospital and the doctor concerned to substantiate their defence that
there was no negligence. Thus the complainant must allege specific
act of negligence and prove how that amounts to negligence. This has
to be supported by expert evidence or medical literature on the subject.
A charge of negligence affects the professional status and reputation
of a doctor. Therefore, the burden of proof on the part of the
complainant alleging negligence of the doctor is correspondingly greater.
A finding not based on any expert evidence cannot be sustained. In
Clark vs Maclenna90, it has been held as under:
“Although in an action in negligence the onus of proof normally
rested on the plaintiff, in a case where a general duty of care
arose and there was a failure to take a recognised precaution
and that failure was followed by the very damages which that
precaution was designed to prevent, the burden of proof lay on
the defendant to show: first that he was not in breach of any
duty and second, if he had not been in breach of duty , that the
damage suffered by the plaintiff did not result from the breach.
Accordingly, doctor owned a duty to his patient to observe the
precautions which were normal in the course of treatment that
he gave. Whether a patient suffered damages after there had
been departure from the orthodox course of treatment, the court
had to enquire whether the doctor had taken all proper factors
into account prior to taking action in order to determine whether
that departure was justified.”
The Supreme Court in Indian Medical Association vs V.P.
Shantha & Ors.91 has observed as under:
“It is no doubt true that sometimes complicated questions
requiring recording of evidence of experts may arise in a
complaint about deficiency in service based on the ground of
90
1983 (1) All ER 416
91
III (1995) CPJ 1 (SC)
DOCTOR-PATIENT RELATIONSHIP 59
Malay Kumar Ganguly vs Sukumar Mukherjee & Ors. III (2009) CPJ 17(SC)
92
60 DOCTOR-PATIENT RELATIONSHIP
98
III (1996) CPJ 220 Punjab SCDRC
DOCTOR-PATIENT RELATIONSHIP 63
vision in left eye was on that account. It may be observed at this stage
that there is a gap of about two weeks in between the treatment taken
from the opposite party and subsequently, taken from Dayanand
Medical College. During this interval of about 15days, there is no
evidence as to the type of treatment taken by the complainant. Only
reference is made to the argument of learned counsel for the opposite
party –the appellant that infection was noticed in right eye at the time
of admission of the complainant in the Dayanand Medical College and
such infection which was bacterial could occur within 3-4 days and
caused damage to the eye. This infection found subsequently could
not be correlated with the operation of the eye performed by the
opposite party.
In N.S. Sahota vs New Ruby Hosp. & Ors.99 Complainant’s
wife was admitted in the respondent hospital. The complainant alleged
that Dr. Mandeep Singh Sethi could not properly diagnose the disease
of his wife and whatever treatment was given by him was not proper.
The State Commission held that after going through the records, it is
clear that the doctors tried to the best of their knowledge and ability to
save the life of the patient. There is nothing on record to suggest that
the opposite parties were negligent in the management of the patient.
There was nothing to infer that the diagnosis made by Dr. Sethi or his
line of treatment was not proper especially when her daughter Dr.
Kuldip Kaur, M.D. and Dr. Harmanjit Singh Heera, MD (son in law of
deceased) have said nothing in their affidavits against the line of
treatment given to the deceased by the opposite party no. 3. Even
otherwise, their affidavits seem to be based on sentimental grounds
being close relations of the deceased. The case in hand is not a case
of obvious or apparent negligence on the part of the opposite party in
the matter of diagnosing the disease. In order to prove negligence it
was expected of the complainant to produce medical expert. Since
the present case does not fall in the first category of cases of apparent
negligence on the part of doctor, the evidence produced by the
complainant himself is considered insufficient to prove negligence of
the doctor, more so, in the absence of any medical witness produced
on the subject. In the matter of giving proper treatment or delay, if any,
in referring the patient for specialised treatment depends upon the
opinion given by the experts. There is no evidence on record that the
II (2000) CPJ 345 Punjab SCDRC
99
64 DOCTOR-PATIENT RELATIONSHIP
SCDRC)
DOCTOR-PATIENT RELATIONSHIP 65
101
[1997] 4 All ER 771
102
2009 CTJ 352 (SC)(CP)
66 DOCTOR-PATIENT RELATIONSHIP
true cause of the accident is not known to him, but is solely within
the knowledge of the defendant who caused it. Plaintiff can prove
the accident but cannot prove how it happened to establish negligence
on the part of the defendant. Where thing is shown to be under
control and management of the defendant or his servants, and the
accident is such as in ordinary course of things does not happen if
those who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant,
that the accident arose from want of care.Therein the doctrine of
res ipsa loquitur has been applied. The maxim has been applied in
instances like where due to complications death of the patient
occurred in four walls of the operation theatre where patient’s relatives
had no access, the onus lies on the defendant to explain the events
that lead to the death of the patient,105 where mop (towel) was left
inside the peritoneal cavity of the patient during sterilization operation
resulting in death of the patient,106 sponge was left inside in the
abdomen of the patient during caesarean operation,107 leaving artery
forceps inside the abdomen of the patient during caesarean
operation,108 where dental surgeon slipped needle into the stomach
of the patient at the time of irrigating the mouth after extraction of
right molar teeth of the patient.109 Deficiency in service may be due
to obvious faults such as removal of wrong limb or performance of
an operation on the wrong patient or giving injection of a drug to
which the patient is allergic without looking into the outpatient card
containing the warning110 or use of a wrong drug during the course
of anaesthesia or leaving inside the patient swabs or other items of
operating equipment after surgery. In Spring Meadows Hospital
vs. Harjol Ahluwalia111 the Supreme Court has held:
“Gross medical mistake will always result in finding of
negligence. Use of wrong drug or wrong gas during the course of
anaesthesia will frequently lead to the imposition of liability and in
105
Arunaben D. Kothari vs. Navdeep Clinic 1996 (3) CPR 20 (Guj)
106
Achutrao Haribhan Khodwa vs. State of Maharashtra (1996) 2 SCC 634
107
Aleyamma Varghese vs. Dewan Bahadur Dr. vs. Varghese 1997 (1) CPR 310 (ker)
108
Ms. Sau Madhuri vs. Dr. Rajendra 1996 (3) CPR 174 (NC)
109
Amblappa vs Sriman D. Veerendra Heggade 1999(3) CPR 72 (Bangalore)
110
As in Chinkeow vs. Government of Malaysia (1967) 1WLR 813 P.C.
111
I (1998)CPJ 1(SC)
70 DOCTOR-PATIENT RELATIONSHIP
112
III (2011) CPJ 360 (NC)
113
II (2000) CPJ 384 (MP SCDRC)
DOCTOR-PATIENT RELATIONSHIP 71
Emergency Care
In Pt. Paramanand Katara vs. Union of India & Ors.,114 the
Supreme Court speaking through Justice Ranganath Misra, in the
context of medico-legal cases, has emphasized the need for rendering
immediate medical aid to injured persons to preserve life and the
obligations of the State as well as doctors in that regard. In the case
a scooterist who was knocked down by a speeding car was taken to
the nearest hospital but the doctors there refused to attend on him.
They told that he be taken to another hospital, located some 20
kilometres away, which was authorised to handle medico-legal cases
and the victim succumbed to his injuries before he could be taken to
the other hospital. A human right activist filed a writ petition in public
interest under Article 32 of the Constitution on the basis of a
newspaper report concerning the death asking for the directions to
be issued to the Union of India that every injured citizen brought for
treatment should instantaneously be given medical aid to preserve
life and thereafter the procedural criminal law should be allowed to
operate in order to avoid negligent death, and in the event of breach
of such direction, apart from any action that may be taken for
negligence, appropriate compensation should be admissible. Disposing
of the Writ Petition, the Supreme Court has held:
Article 21 of the Constitution casts the obligation on the State
to preserve life.
There can be no second opinion that preservation of human
life is of paramount importance. That is so on account of the
fact that once life is lost, the status quo ante cannot be
restored as resurrection is beyond the capacity of man.
The patient whether he be an innocent person or a criminal
liable to punishment under the laws of the society, it is the
obligation of those who are in-charge of the health of the
community to preserve life so that the innocent may be
protected and the guilty may be punished. Social laws do
not contemplate death by negligence to tantamount to legal
punishment.
114
1989 (4) SCC 286
72 DOCTOR-PATIENT RELATIONSHIP
116
2000 (4) CPR 1 (SC)
117
II(2007) CPJ 63(NC)
DOCTOR-PATIENT RELATIONSHIP 77
for himself.”
In the present case the court took into account a number of
factors like requirement of nursing care, need for driver cum
attendant as the complainant was confined to wheel chair and need
for physiotherapy etc. for computing compensation. The Supreme
Court held that the complainant is a highly qualified individual and is
gainfully employed as an IT Engineer and earning a sum of `28
Lakh per annum and is about 40 years of age. The very nature of his
work requires him to travel to different locations but as he is confined
to a wheel chair he is unable to do so on his own. For his need for a
driver cum attendant a sum of `7.2 Lakh was awarded. A total sum
of `14,40,000/- was given towards nursing care. `10,80,000/- was
awarded for physiotherapy. Keeping in view the need for continuous
medical aid which would involve expensive medicines and other
material, and the loss towards future earnings etc., the opposite parties
were directed to pay a lump sum payment of `25 lakhs under each
of these two heads making a total of `50 lakhs. In addition, a payment
of `10 lakh was directed towards the pain and suffering that the
appellant has undergone. The total amount thus computed would
work out to `1,00,05,000 (`1 crore 5 thousand).
In this case the Supreme Court has rejected the use of multiplier
system to calculate the quantum of compensation. The court held
that the kind of damage that the complainant has suffered, the
expenditure that he has incurred and is likely to incur in the future
and the possibility that his rise in his chosen field would now be
restricted, are matters which cannot be taken care of under the
multiplier method.
In Dr. Balram Prasad vs. Dr. Kunal Saha &Ors. 119 the
Supreme Court considered the issue of compensation payable to the
claimant for the death of his wife due to the negligence of the hospital
and doctors. The appellant-doctors were aggrieved by the quantum
of compensation awarded by the National Commission and the liability
fastened upon them for the negligence on their part and had prayed
to set aside the same by allowing their appeals. The appellant-AMRI
Hospital also questioned the quantum of compensation awarded and
prayed to reduce the same by awarding just and reasonable
119
(2013) 40 SCD 897
DOCTOR-PATIENT RELATIONSHIP 79
Vicarious Liability
‘Vicarious’ means ‘one that takes or supplies the place of
another.’120 In vicarious liability one person takes the place of another
as far as liability is concerned. Under this principle the liability of the
hospital authorities extends to the fault of doctors and others
employees whether their employment is permanent, temporary or
casual, paid or honorary, whole time or part time as in the case of
visiting physicians or surgeons. Lord Denning in Cassidy vs. Ministry
of Health121 held:
“The authorities who run a hospital, be they local authorities,
Government boards, or any other corporation, are in law under
the self-same duty as the humblest doctor; whenever they accept
a patient for treatment, they must use reasonable care and skill
to cure him of his ailment. … They must do it by the staff which
they employ; and if their staff are negligent in giving the treatment,
they are just as liable for that negligence as is anyone else who
employs others to do his duties for him.”
The Supreme Court in Spring Meadows Hospital vs. Harjol
Ahluwalia122 held the hospital liable to pay compensation for the
negligence of its attending doctor and unqualified nurse, as the doctor
relied on the nurse to give intravenous injection to the patient instead
of the consultant doctor and thereby contributed to the irreparable
brain damage of the minor patient.
In Smt. Savita Garg vs The Director, National Heart
Institute 123, the Supreme Court while speaking on the question
whether non-impleading the treating doctor as party could result in
dismissal of the original petition for non-joinder of necessary party
has held as follows:
“It is the common experience that when a patient goes to a
private clinic, he goes by the reputation of the clinic and with the
hope that proper care will be taken by the Hospital authorities. It
is not possible for the patient to know that which doctor will
120
The Shorter Oxford English Dictionary, Vol. II, 3rd Edn, 1944
121
(1951)2 KB 343
122
I (1998) CPJ 1(SC)
123
(2004) 8 SCC 56
DOCTOR-PATIENT RELATIONSHIP 83
the concerned doctor who treated that patient that there was no
negligence involved in the treatment. Since the burden is on the
hospital, they can discharge the same by producing that doctor
who treated the patient in defence to substantiate their allegation
that there was no negligence. In fact it is the hospital who
engages the treating doctor thereafter it is their responsibility.
The burden is greater on the Institution/ hospital than that of the
claimant. The institution is private body and they are responsible
to provide efficient service and if in discharge of their efficient
service there are couple of weak links which has caused damage
to the patient then it is the hospital which is to justify the same
and it is not possible for the claimant to implead all of them as
parties.”
The State is vicariously liable for the tortious acts of its servants
or agents which are not committed in the exercise of its sovereign
functions or in the exercise of sovereign powers delegated to such
public servants. 124 The work of medical relief undertaken by
Government through Primary Health Centre is not a sovereign function
of the State and as such the defence of sovereign immunity must
fail. Accordingly, the State would be vicariously liable for damages
payable on account of negligence of its doctors and other employees.
The Supreme Court in State of Haryana vs. Smt. Santra125 held
the State of Haryana vicariously liable for negligence of the doctor
in a Government Hospital in performance of sterilization operation
resulting in birth of an unwanted child.
Medical Negligence: What Patients should Know?
While going to a doctor, take all previous medical reports.
Ascertain the qualifications and the experience of the doctor
in his area of specialization before consultation.
During consultation with the doctor, get your doubts regarding
the treatment clarified.
Before undergoing treatment consult another doctor and take
a second expert opinion to double check on all the options
available.
124
State of Rajasthan v Vidyawati AIR 1962 SC 933
125
I (2000) CPJ 53 (SC)
DOCTOR-PATIENT RELATIONSHIP 85
Conclusion
The medical profession was important and will always remain so
as it relates with human life. However, the doctor-patient relationship
has undergone a drastic change over the period of time and the influence
of market forces is clearly visible on it. In olden days the phenomenon
to sue doctor for negligence was a rare one but during the last decade
many complaints of medical negligence have been handled by consumer
foras. Today the educated and informed consumers seek good service
and are not ready to suffer in silence for the deficiency on the part of
doctors and hospitals. This has also made the doctors more cautious
while treating the patients. The patients are now being advised to
undergo several tests before the preliminary diagnosis to prevent any
kind of litigation later on. This has made the treatment costlier for the
ordinary patient. It is high time that the medical councils and internal
grievance redressal mechanism in the hospitals become more effective
to check malpractices in the profession to help the consumers get
redressal for their grievances without approaching adjudicatory bodies
under the CPA.
126
P.D.Shenoy, Medical negligence, Sterling Publishers Pvt. Ltd., 2013, pp.430-
433
DOCTOR-PATIENT RELATIONSHIP 87
Annexure
MODEL FORM OF NOTICE, COMPLAINT, AFFIDAVITAND REPLY
MODEL FORM-1 NOTICE BEFORE FILING THE COMPLAINT
Name and address (of the trader, dealer, firm, company, etc.)
............................................................ (Complete address)
IN RE: (Mention the goods/services complained of giving details)
.................................................................................................................
Dear Sir,
This is to bring to your kind notice that 1 had
purchased………….............from your ............................... for a
consideration of Rs……………………………...... paid in cash vide
your cash memo/Receipt/Invoice
No....................................................... (or through cheque No
........................... dated ................... drawn on
........................................bank for a sum of Rs ...........................
The said goods are suffering from the following defects:
(i) ............................................
(ii) ............................................ etc
I have reported the above matter to you several times (give
reference of earlier letters, if any) but despite all my pleadings
you have not made good the defect in the goods (ordeficiency in
services) which is indeed regrettable and highly unbusiness like.
On account of your aforesaid dereliction of duty and failure and
neglect to rectify the same I have suffered losses/incurred
expenses
...........................................................................................................................................................................................................
............................................................................................................................................................................................................
...........................................................................................................................................................................................................
...........................................................................................................................................................................................................
...........................................................................................................................................................................................................
(give details)
which you are liable to compensate to me.
You are hereby finally called upon to
(i) remove the said defects in the goods
and/or
(ii) replace the goods with new goods
and/or
(iii) return the price/ charges paid
88 DOCTOR-PATIENT RELATIONSHIP
RESPECTFULLY SHOWETH
INTRODUCTION
(In this opening paragraph the complainant should give his
introduction as well as that of the opposite party/parties.
TRANSACTION
(In this paragraph complainant should describe the transaction
complained of, i.e., particulars and details of goods/ services availed;
items of goods/kind and nature of service; date of purchase of goods/
availing of service; amount paid as price/consideration, full or in
part towards the goods/service; Photocopies of the bill/cash memo/
voucher or receipt should be attached and properly marked as
Annexure – A,B,C and so forth or 1,2,3 and so forth).
90 DOCTOR-PATIENT RELATIONSHIP
DEFECT DEFICIENCY
(In this paragraph complainant should explain the grievance, i.e.,
whether the loss or damage has been caused by some unfair trade
practice or restrictive trade practice adopted by any trader or there
is some defect in the goods or there has been deficiency in service or
the trader has charged excessive price for the goods. One should
elucidate the nature of unfair trade practice adopted by the trader,
i.e., relating to the quality of goods/services; sponsorship; warranty
or guarantee for such period promised. The nature and extent of
defects in goods should be explained and so should the deficiency in
service. In case of excessive price one should specify the details of
actual price fixed by or under any law for the time being in force or
as set out on goods and their packing vis-a-vis the price charged by
the trader. Complaint can also be filed against offer for sale of goods
hazardous to life and safety when used. You should narrate your
grievance and rest assured it is being read /heard by compassionate
and pragmatic judges. Photocopies of relevant documents must be
attached.)
RECTIFICATION
(In this paragraph complainant should highlight what attempts were
made by him to set things right, i.e., personal visits or negotiations;
communication in writing if any; whether any legal notice was got
served and / or whether he has approached any other agency for
redressal like, Civil or Criminal Court of competent jurisdiction; the
stage of its proceedings, its outcome, if any, alongwith copies (certified
preferably) of such proceedings. The nature of response got from
the trader when irregularities were brought to his notice, should also
be disclosed here).
OTHER PROVISIONS
(In this paragraph reference may be made to any other law or rules
or regulations of particular procedure which is applicable to the case
and/or which has been violated by the trader and consumer’s rights
under the same. There are incidental statutory obligations, which
traders must fulfil and in case of their failure to do so the case in
prima facie made out and Forum would take cognizance).
DOCTOR-PATIENT RELATIONSHIP 91
EVIDENCE
(In this paragraph complainant should give details of documents and/
or witnesses he will rely upon to substantiate his case. The documents
attached as Annexures as stated above may be incorporated in a
proper list and a list of witnesses (if any) may be filed similarly).The
annexures should be attested as “True Copy”.
JURISDICTION
(In this paragraph complainant should liquidate the claim in the
complaint, i.e., upto 20 lakh; 20 lakh to one crore; or above and set
out the pecuniary jurisdiction of the Forum/ State Commission/National
Commission, as the case may be. The territorial Jurisdiction should
be highlighted to obviate any formal objection).
LIMITATION
That the present complaint is being filed within the period prescribed
under section 24A of the Act.
RELIEF CLAIMED
(In this paragraph complainant should describe the nature of relief he
wants to claim. i.e., for removal of defects in goods or deficiency in
service; replacement with new goods; return of the price or charges,
etc., paid and/or compensation on account of financial loss or injury
or detriment to his interest occasioned by negligence of the opposite
party and elucidate how you have calculated the amount of
compensation claimed).
PRAYER CLAUSE
It is, therefore, most respectfully prayed that this Hon’ble Forum/
Commission may kindly be pleased to
....................................................................... (Details of reliefs
which complainant wants the Court to grant)
Place: ................................... Dated: ...................................
Complainant Through ...................................
(Advocate or Consumer Association, etc.)
92 DOCTOR-PATIENT RELATIONSHIP
Verification
I, ............................. the complainant above named, do hereby
solemnly verify that the contents of my above complaint are true and
correct to my knowledge, no part of it is false and nothing material
has been concealed therein. Verified this ........................... day of
............................ 20 ...... at .......... Complainant.
Note: Although it is not compulsory, complainant may file an affidavit
in support of the complaint which adds to the truth and veracity
of allegations and gives credibility to the cause. It need not be
on a Stamp paper but one should get it attested from an Oath
Commissioner appointed by a High Court. The format is just
as simple.
DOCTOR-PATIENT RELATIONSHIP 93
Complainant
Opposite party
AFFIDAVIT
Affidavit of
Shri…………………………………………….S/o. Shri...............
Sd/-
(Opposite party)
INDIAN INSTITUTE OF PUBLIC ADMINISTRATION
The Indian Institute of Public Administration, established as an autonomous body
under the Registration of Societies Act, was inaugurated on March 29, 1954 by Shri
Jawaharlal Nehru who was the first President of the Society. The basic purpose of
establishing this Institute was to undertake such academic activities as would
enhance the leadership qualities and managerial capabilities of the executives in
the government and other public service organizations. The activities of the
Institute are organized in four inter-related areas of Research, Training, Advisory
and Consultancy Services and Dissemination of Information.
CENTRE FOR CONSUMER STUDIES
CCS is dedicated to consumer studies and is sponsored by DCA, GoI. The
objective of the CCS is to perform, facilitate and promote better protection of
consumer's rights and interests with special reference to rural India. The broad
areas of focus of the Centre comprise capacity building, advocacy, policy analysis,
research, advisory and consultative services, and networking.
The Centre seeks to network with national and International agencies and interface
with other stakeholders by serving as a bridging “think tank” with an intensive
advocacy role. The Centre provides a forum for creating dialogue among policy
makers, service providers, representatives of various business establishments and
their associations, professional bodies/associations, civil society organizations,
educational/research institutions, economic and social development organizations
as well as leading NGOs.