MЕDICAL NЕGLIGЕNCЕ LAWS AND RЕMЕDIЕS IN INDIA

SUBMITTED BY:

SANJITH C

SUBJECT NAME:

CRIMINAL LAW

BATCH NUMBER:

WEEK NUMBER:

EXERCISE NUMBER:

JUNE – 2021

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 ABSTRACT

Doctors are regarded as deities who are seen. The medical profession is grown
commercialized in recent years. Doctors use deceptive techniques to admit unsuspecting patients
and therefore earn large sums of money. The government has taken on a number of laws in order
to prohibit these abuses. The Consumer Protection Act of 1986 was used to accomplish this. A
good understanding as to how judiciary handle cases involving medical negligence is essential
for doctors. The demand for these kind of expertise is greater than ever before, given the Indian
institutions' increased emphasis on the sanctity of people lives and agony, which is probably
justified. Though judiciary bodies attempt to pinpoint offenders and recidivism in cases of
medical negligence, they also try to strike a middle ground among a doctor's liberty to make
decisions and a patient's right to be treated equally. Throughout the arbitration proceedings,
courts prefer to offer doctors enough latitude and specifically recognize the intricacy of the
human anatomy, the ambiguity of modern medicine, the fundamental subjective of the system,
actual room for judgement mistake, and the significance of doctors' independence. The
legislation doesn't always set a limit on how high of a criterion can be applied, however it does
set a minimum criterion under which patients could be treated. Judiciary forums have also
indicated a greater need for doctors to communicate with patients while treatment, particularly
when the treatment course is challenged, has substantial adverse effects, and other treatments are
available.

INTRODUCTION

People are social animals who seek and believe in harmony in their lives and
environment. One of the principal factors they invented the idea of laws is because of this. This
establishment aided every person in seeking redress if he or she had been wrongfully damaged
by the actions of another person or group of people. This solution was in the nature of monetary
recompense or imprisonment for the perpetrator of the wrongdoing. The laws of the society were
primitive at first, as were the communities themselves. Laws have evolved in tandem with the
development of society. This creates a link among society at large, in which law serves as a tool
for social development, and justice, as Pound phrased it, "must be stable but not stagnant."
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 During the last century, rapid breakthroughs in medicine have changed the area of
medicine. Amidst all of these advancements, the medical profession in India must be at a
crossroad, facing severe moral and legal challenges in the practise of medicine. The medical
profession, which was traditionally seen as honourable, is now being lumped in with other
professions in terms of liability for harms. A patient regards his doctor as if he or she were God,
capable of doing no wrong. Doctors are, after all, just humans. And it's human to make mistakes.
Doctors are prone to making mistakes. They could be irresponsible. It's possible that the support
staff is inattentive. Some careless acts could lead to a far more bigger disaster. It's vital to figure
out who was careless and in what conditions in that kind of a situation. These issues are brought
to court in a democracy oriented to the judicial system, and judges are meant to make decisions.
Judges, on the other hand, find it challenging to identify doctor carelessness because they are not
versed in medical science. These judgments are predicated on the advice of specialists. Judges
make decisions based on the fundamental statutory provisions and the legislation of the nation.

Those core principles are prudence and reasonableness. Medical negligence is classified
into three categories under Indian law: criminal negligence, civil negligence, and negligence
under the Consumer Protection Act. Three laws have distinct remedies for redress in the forms of
penalty and restitution. Below given is an analysis of the medical negligence statutes stated
previously. This study examines the legal landscape of medical negligence in India within
context of numerous judicial decisions, attempting to comprehend what is required of a doctor as
a reasonable person, as well as the employer's (hospital) liability.

NEGLIGENCE

Negligence is a breach of duty due to the failure to execute anything that a prudent and
reasonable person might do, or for performing anything that a wise and reasonable person would
not do, based on the principles that normally govern the behaviour of human society. The
plaintiff has incurred injury to the person or property as a result of the defendant's failure to
exercise reasonable care and ability or competence toward that individual to whom the defendant
bears the responsibility of exercising reasonable care and capability. 1 As per Winfield,

1
Law of Torts, Ratanlal & Dhirajlal, Twenty-seventh Edition 2016, edited by Justice G.P. Singh; page-470

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“Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired
by the defendant to the plaintiff”

The very first interpretation of negligence has three components:

1) A legal obligation on the part of the plaintiff to use reasonable care in relation to the
defendant’s actions within the scope of the duty.
2) Breach of the aforementioned duty.
3) Damage as a result of the preceding.

Essentials:
In a negligence case, the plaintiff must show the essential components:
 The defendant owes the plaintiff a duty of care
 The defendant was the one who breached the duty;
 As a result of this, the defendant experienced harm.

PROFESSIONAL NEGLIGENCE
Professional Liability:
It covers all of that professionals must adhere, including rules of conduct when providing
care or assistance in their area. A professional liability lawsuit might be filed in the case that the
service provider fails to follow professional norms of ethics.

Negligence by Professionals:

This principle was articulated by the Supreme Court in Jacob Mathew v. State of Punjab2
: Any rational person who enters a career that needs a certain level of understanding in order to
be termed a professional in that discipline implicitly ensures the individual dealing with him that
the expertise he claims to possess will be handled with a reasonable degree of care and prudence.
He doesn't always guarantee the outcome to his consumer. A lawyer doesn't really promise his
client that he or she will win the lawsuit in every instance. In any scenario, a doctor will not
guarantee the patient's complete recovery. A surgeon doesn’t and couldn’t guarantee that the

2
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180

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operation will always be helpful to the patient being operated on, much less to the degree of
100percent benefit. The sole guarantee that this professional can offer or be acknowledged to
have provided by implicit assumption would be that he possesses the necessary skill in the
department of profession that he is performing, and that he will be practising that abilities with
reasonable skill while performing the activity assigned to him. This is what a client can
anticipate when seeking a professional. According to this criterion, a professional may be held
accountable for negligence based on one of two findings: either he lacked the requisite expertise
that he claimed to have, or he can't exercise the expertise that he had possessed with reasonable
skill in the specific circumstance.

Because India's rules and judgments are heavily influenced by the system of law, it's also
vital to check into some English instances. In the case at hand, the Honourable Court cited Mc
Nair, J's observation in Bolam v. Friern Hospital Management Committee 3, when a scenario
arises that necessitates the application of a specialized skill or ability, the criterion to determine
whether carelessness occurred is not the same as the person on the top of a Clapham omnibus.
The criterion is that of an average skilled individual who is practicing and claiming to have that
particular skill.

According to Halsbury’s Laws of England4, a medical practitioner must have the

following level of expertise and care: The professional should provide a reasonable level of
expertise and understanding to his assignment, as well as exhibit reasonable caution. The law
does not require the highest or the lowest extent of care and competence, decided in accordance
with specific facts of each case, and an individual is not liable for negligence because somebody
else with higher expertise and ability might have recommended a different treatment or operated
in a different manner; nor is he liable in negligence if he has fully complied with a practicable
standard of care and competence.

Violating from standard procedure is not always indicative of negligence, as stated in the
preceding explanation. To prove culpability on that basis, it must be demonstrated that:

1) There is a common and accepted practise;

2) The defendant has not embraced it; and
3
Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582
4
Fourth Edition, Vol.30, Para 35. Quoted in Jacob Mathew v. State of Punjab AIR 2005 SC 3180

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 3) That the approach followed will not have been chosen by any professional man of
ordinary skill operating with ordinary caution.

Negligence by Medical Professionals:

When a person consults a doctor, the doctor owed the patient various responsibilities,
including a duty of care in determining whether to bring the matter; a duty of care in selecting
what treatment to deliver; and a duty of care in administering that treatment. If any of these
rights are infringed, the patient has the right to sue the doctor for negligence.
In the case of Jacob Mathew v. State of Punjab5, the Supreme Court of India delves into
the definition of medical negligence. “A basic lack of care, a lapse in judgement, or an accident
are not evidence of medical professional negligence. A doctor cannot be held accountable for
negligence simply because a viable option method or technique of treatment was also accessible
or just because a better competent doctor wouldn't have even decided to adopt or adhere to the
accused's practise or approach. When it relates to refusing to implement measures, the question is
whether those measures were used that ordinary men have judged to be adequate; a failure to
apply unusual or exceptional measures that could have averted the particular occurrence cannot
be used to judge the accused negligence.
Similarly, the standard of care is considered in light of facts known at the moment of the
occurrence not at the time of the trial, when evaluating the practise as applied. Likewise, if the
allegation of negligence is based on the failure to utilise certain equipment, the accusation will be
dismissed if the equipment was not widely accessible at the moment which is at the moment of
the occurrence when it was recommended it could've been utilized.

Degree of Negligence:

Under 2005, the Delhi High Court established three levels of negligence in civil law. 6:

a) lata culpa, gross neglect

5
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180
6
Smt. Madhubala vs. Government of NCT of Delhi; Delhi High Court, 8 April 2005

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 b) levis culpa, ordinary neglect,
c) levissima culpa, slight neglect.

Every act of negligence on the part of the doctor will not result in a penalty. Slight
neglect will almost certainly not be condemned, and normal neglect, as the name implies, will
not be condemned as well. When these two are combined, we have two categories: negligence
for which the doctor is liable and negligence for which the doctor is not liable. The demarcation
should be relatively visible in most circumstances; nevertheless, the issue arises when the
separating margin is narrow.

Doctor’s duty of care:

When a doctor attends to a patient, he bears him specific responsibilities. 7

1) A duty of care in deciding whether to undertake the case;

2) A duty of care in deciding what treatment as advise;
3) A duty of care in the administration of the treatment.

REMEDIES

A victim of medical malpractice has rights in civil, criminal, and constitutional law, as
well as against the government.

Civil Law

Affected people have a civil law remedy under the law of contract or tort against medical
practitioners, including government doctors, who commit acts of medical negligence. He can
take his case to a Civil Court under Contracts or Torts Law, or to a Consumer Forum under the
Consumer Protection Act. The Consumer Protection Act of 1986 was enacted in order to better
safeguard customers' interests and to give a quick and economical redress.

Criminal Law

7
Dr. L.B. Joshi v. T.B.Godbole, AIR 1969 185

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 In cases of extreme medical negligence, the afflicted person can report to the police or
file a complaint with a Magistrate under Sections 304A, 336, or 337 of the Indian Penal Code.

Constitution

A victim of medical malpractice can file a Writ in the appropriate High Court or the
Supreme Court under Article 32 of the Indian Constitution.

OTHER REMEDIES

Under the Medical Council Act and Regulations enacted thereunder, the affected person
can also file a complaint with the Medical Council of India or the State Medical Council.

Agencies authorized to take the case under the consumer protection act

In the hierarchy, the District Forum is the first court. Within 30 days, the State
Commission has jurisdiction to hear appeals against orders of any District Forum within the
state. An appeal to the National Commission can be lodged within 30 days of the State
Commission's order.

Pecuniary jurisdiction of forms

The District Forums have jurisdiction under the Consumer Protection Act to hear
complaints up to a limit of ₹5 lakhs. The State Commissions have pecuniary jurisdiction over
complaints worth between 5 and 20 lakhs of rupees. The National Commission has jurisdiction if
the claim exceeds ₹20 lakhs.

Period of limitation

A new Section 24-A of the Consumer Protection (Amendment) Act of 1993 specifies the
time limits. It states that a complaint will not be accepted unless it is filed within two years of the
date of the cause of action.

CONCLUSION

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 A patient does not engage into a contractual agreement when he visits a doctor for
treatment of his disease, but there is an implied contract, and any lack of sufficient care might
make such a doctor accountable for violation of professional obligation. Because consumers are
such a powerful group, the Government passed the Consumer Protection Act of 1986 in order to
seek quick and effective remedies in cases of medical malpractice. The doctors argue that
because their services constitute a "Contract of personal service," they are exempt from the Act's
provisions. In the case of V.P Shanta, however, the Supreme Court rejected this approach. Now
would be the time for rational thinking to dominate, and learned members of this great profession
to propose some proactive methods at their own level to prevent malpractices from jeopardising
professional dignity. Retrenchment in continuous learning needs to be ripped, and we need to
face the facts. At the same moment, it is the legislature's responsibility to entrench such measures
in the Consumer Protection Act, as well as other relevant cases, to ensure that all incidents of
medical negligence are thoroughly investigated before being prosecuted.

Many commercial hospitals have misused the discipline of medicine by treating patients
as operating income clumps of tissue that may be probed, poked, and sliced up at any time.
Excessive intervention becomes the rule when the focus shifts from honest therapy to cold
revenue targets. Doctors at prominent branded hospitals often order thorough blood work and
nuclear imaging for many of their patients – and when the results are normal, the patient breathes
a sigh of relief and compliments the doctor for being so careful! The cycle continues until,
unfortunately, a patient develops a severe underlining illness that necessitates immediate
treatment. The Indian judiciary has served as the sole saviour in the middle of this shambles.
The legal system, on the other hand, must find a careful balance between a doctor's autonomy in
making decisions and a patient's entitlement to be treated equitably. Unfortunately, the days of
blindfolding your doctor's advise are long gone. With the inevitable rise of profiting in medical
treatment, it is now more important than ever for people to understand their rights.

SUGGESTIONS

The idea of negligence can be understood only when there is clarity about the duty of the
doctor, assisting staff and the hospital as a whole. In several cases, there is a problem of

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overlapping duties and thus, it becomes difficult to draw a line between the duty of A and B. In
any case, the doctor is under an obligation and is directly liable for the acts performed by him.
For the assisting staff, it is the duty of the hospital and the person himself. Both have a joint and
several liability. Thus, it is advisable to have clear-cut duties laid down for different persons.
But, in practice, this is not so easy. It cannot be done perfectly. The choice is to try doing it in an
imperfect manner or not doing it at all. Prudence says that there can be an endeavour to put in
black and white the duties of different persons working in a hospital. It provides a basic
framework, which helps in deciding matters in situations of confusion and failure.

REFERENCES

Statutes:

1. The Constitution of India

2. The Consumer Protection Act, 1986
3. The Medical Council Act, 1956
4. Indian Penal Code, 1860

Books:

 Ratanlal & Dhirajlal, Law of Torts, Negligence by Professionals, 27th Edition, 2016.
 Bangia, R K, Law of Torts, Professional and Medical Negligence, 24th Edition, 2017.

Web Sources:

 https://www.lexology.com/library/detail.aspx?g=b271f61b-9bc7-4d12-9e88-
4c058fd8951b
 https://www.medicalnewstoday.com/articles/248175
 http://www.legalservicesindia.com/article/1170/Medical-Negligence.html

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 https://www.google.com/amp/s/www.thehindu.com/news/national/tamil-nadu/medical-
negligence-shrc-recommends-5-lakh-compensation-to-family-of-pregnant-
woman/article33639133.ece/amp/

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