Chapter 11:

Medico legal system A comparative study with USA, UK, Australia

and India

Chapter 11: Medico legal system A comparative study with USA,

UK, Australia and India

2.1 Introduction
45
Medicine is in practice all around the world, making its way even into the most
remote countries. Similarly, the law related to medicine also exists in almost all
countries. However, the laws around medicine differ from state to state. The reason
for this is that medical law, like medicine, mostly has its source in customs and
traditions prevailing in different regions. The type of medicine practiced in an area
might be different from another and so the law relating to medicine also varies.
Medico-legal systems also differ based on the economic state of a country or even its
geographical position. For example, developed countries enforce stricter rules with
regard to medical practice while it is far more lenient in developing and undeveloped
countries. Similarly, a country situated in
Europe might be bound by the medico-legal system of the European Union.1

States have grappled with the enactment of appropriate medico-legal legislation for
years and the regime of law continues to develop. In this context, it is also important
to note that the international community has come together on several occasions to set
certain minimum and even ideal standards that States are encouraged to follow. The
aim of this chapter of the thesis is to study the existing medico-legal systems
introduced by international law and also those practiced by individual developed
countries. The medico-legal system in India will be discussed in length highlighting
the existing laws and regulations. This will provide scope for performing a
comparative analysis between the law in India and the laws in developed countries.

A comparison of the medical system and medical malpractice law in the developing
world is worth studying to appreciate just how much developing countries differ from
developed countries and why these differences really matters. Developing countries
like India are still struggling with poverty, infectious diseases, professional shortages,
underdeveloped health systems, weak infrastructure, large informal economies,
regulatory and civil society deficits, and other problems that tend to be secondary for
most developed countries. Money is an obvious yet defining distinction between

1 Council Directive 75/362/EEC of 16 June 1975 concerning the Mutual Recognition of Diplomas,
Certificates and other Evidence of Formal Qualifications in Medicine, Including Measures to Facilitate
the Effective Exercise of the Right of Establishment and Freedom to Provide Services(1975) OJ
L167/1 33n16.
46
developed and developing countries.2 Developing countries struggle with poverty and
resource constraints in a way that developed countries simply do not. These fiscal
realities limit what they can spend on health care and health infrastructure.3

Another, factor that distinguishes developing countries is that they are often beset by
other health policy priorities, which can relegate patients' rights to a secondary or
even tertiary concern. HIV/AIDS, malaria, SARS, swine flu, Covid 19 and other
infectious diseases plague countries like India, China, and many African nations. 4 For
example, in India, someone dies every minute from tuberculosis. 5 These countries
might rightly dedicate more time and attention to addressing public health crises than
things like medical malpractice.

Developing countries are often struggle with very low ratios of health care
professionals to the general population, which likely contributes to the reluctance to
over regulate them. The World Health Organization identified fifty seven countries
that face crisis level shortages of health care professionals, many of which are low
income, developing countries.6 These countries have an average of 1.1 doctors per
thousand populations, compared to 13.2 in the United States. 7The shortage of
physicians may create a monopoly atmosphere8 that gives health care professionals

2 Indeed, the phrase "developing country" is often used to denote low- or middle income countries, or
both. Although this usage can be imprecise-not every low- or middle income country has a growing,
"developing" economy-I will use this phrase for the sake of simplicity. See Mark V. Pauly et al., How
Private, Voluntary Health Insurance Can Work in Developing Countries, 28 HEALTH AFF. 1778,
1778 (2009) (classifying "truly 'developing' countries" as ones with "low but growing per capita
incomes").
3 Pauly et al.supra note 11, at 371.
4 Cortez, supra note 6, at 40.
5 Id. (citing Rueben Granich et al., Tuberculosis Control in India, 3 LANCET INFECTIOUS
DISEASES 595, 595 (2003)).
6 WORLD HEALTH ORG., GLOBAL HEALTH WORKFORCE ALLIANCE, LIST OF 57
COUNTRIES FACING HUMAN RESOURCES FOR HEALTH CRISIS (AS IDENTIFIED BY THE
2006 WORLD HEALTH REPORT), http://www.who.int/workforcealliance/countries/57
crisiscountries.pdf (last visited Dec. 6, 2011); Global Health Observatory, Health Workforce, WORLD
HEALTH ORG., http://www.who.int/gho/health-workforce/en/index.html (last visited Dec. 6, 2011).
7 Kate Tulenko, Countries Without Doctors?, FOREIGN POL'Y(June.11,2010),
http://www.foreignpolicy.com/articles/2010/06/11/countries without-doctors.
8 Pauly et al supra note 11, at 370 (listing twenty-one developing countries' percentage of gross
domestic product spent out-of-pocket on health care).
47
excuse to deter meaningful external regulation or accountability. Many patients in
developing countries are not receiving any care at all.9

Another distinction between developed and developing countries is that a large

proportion of health spending in developing countries goes to providers in the
informal economy.10 In India, for example, untrained local practitioners and drug shop
owners have grown into the dominant type of provider of outpatient medical care. 11
These providers often called "rural medical practitioners, village doctors, quacks, and
other names" are generally fly under the radar of regulators. 12 People express concerns
about the quality of care provided by informal health practitioners. But patients use
them because they can be much less expensive and more accessible, and patients may
lack the requisite knowledge and information to choose higher quality providers. 13
Studies show that practitioners without formal medical training and credentials
generally provide poor quality care.14 In India, most providers in the informal
economy are seen to have a poor medical knowledge base and tend to follow
irrational, ineffective, and sometimes even harmful practices when treating minor
ailments.105 These providers tend to operate locally and individually, they are much
harder to regulate and hold accountable for any mistakes or negligence. There is no
proper law or regulation to control these practitioners.

Developing countries largely lack the regulatory capacity to set and enforce standards
on health care providers. In contrast, developed countries, like the United States, can
rely on overlapping layers of laws and regulations to encourage physicians, hospitals,
and other providers to meet at least some minimum standards.15 But even the larger,
wealthier developing countries, like India and China, lack an overall framework for

9 Id. at 56.
10 See Anne Mills et al that Can Be Done About the Private Health Sector in Low-Income Countries?,
80 BULL. WORLD HEALTH ORG. 325, 325 (2002) (noting that the private sector in).
11 Gerald Bloom et al Regulating Health Care Markets in China and India, 27 HEALTH AFF. 952, 954
(2008).
12 Id.
13 Millset alsupranote 32, at 326.
14 Das & Gertler, supra note 35, at w308.Das.
105
Bloom et al supra note 33, at 958.
15 Nathan Cortez, Embracing the New Geography of Health Care: A Novel Way to Cover Those Left
Out of Health Reform, 84 S. CAL. L. REV. 859, 897-98 (2011).
48
regulating their health sectors.16 For example, in theory, India can rely on the Medical
Council of India, various Departments of Health, the Indian Medical Association, and
other regulatory or quasi regulatory bodies to oversee practitioners. 17Many developing
countries focus on regulating licensing and entry into the medical professions, rather
than reviewing medical professionals performance retrospectively. 18
As a result,
medical professionals can escape meaningful regulation in these jurisdictions. Apart
from regulating medical professionals, developing countries often lack effective
hospital regulation19 and consumer protection regimes.20 Some of the regulatory
deficits in developing countries may be attributable to timing the health sectors in
these countries have grown considerably over the last few decades without a
corresponding growth in their regulating capacity.21

An underappreciated regulatory deficit in developing countries is the lack of a robust

private health insurance market. Private insurance can act as a channel for
regulation.22 In developed countries like the United States, both public and private
insurers often use their contracts with health care providers to "pursue regulatory
objectives"114 such as patient safety and quality outcomes. Again, developing
countries lack a key layer of regulation that is relatively common in developed
countries. Unfortunately, many developing countries lack strong civil societies to
account for their regulatory deficits.23To add on this picture, patients in developing
countries are less equipped than patients in the developed world to act as regulatory
sentinels, uncovering and reporting medical negligence. Patients in these countries are
less able to access, process, and understand information about the medical care they

16 Bloom et al supra note 33, at 953.

17 Id. at 957; Cortez, supra note 6, at 36-38.
18 See Kumaranayake et al supra note 35, at 360, 364 (noting this emphasis in Tanzania and
Zimbabwe).
19 Cortez, supra note 6, at 23 n.128 (examining hospital accreditation in India).
20 Mills et al supranote 32, at 327.
21 Generally Bloom et al.supranote 33 (observing this trend in both China and India).
22 In developed countries like the United States, both public and private insurers often use their
contracts with health care providers to "pursue regulatory objectives" such as patient safety and quality
outcomes. 114Insurers often leverage their purchasing power to protect their customers - patients. In
contrast, providers in developing countries often lack such incentives. A study of India and China
found that private insurance is an "underused" regulatory mechanism in both countries."
23 Bloom et al.supra note 33, at 953, 961-62 (noting the absence of a strong civil society in China but
the presence of one in India).
49
receive. 24 While it is acknowledged that laws differ from country to country, it is also
true that certain elements can be replicated by developing countries like India by
observing the regime of laws in developed countries.

2.2 Medico legal systems in developed States

As discussed in the previous part of this thesis, developed countries in the West
follow a stringent regime of medico-legal ethics and adopt stricter enforcement
mechanisms. Medico-legal legislation has existed in such States for decades and as a
result, the legal system around doctor-patient relationship has evolved in these
countries over the years. Countries such as the USA and UK have thriving systems to
regulate the relationship between doctors and patients and thus, they see better
healthcare being offered to their citizens. For the purposes of this thesis, it is
important to examine the medico-legal systems in different developed countries in
order to draw an analogy between their laws and the laws that will be proposed herein
for India.

The primary areas include the level of expenditure, the nature of healthcare support,
and the nature of coverage. According to report, the USA spends close to 18 per cent
of its GDP on healthcare compared to less than just 4 per cent of GDP by India. The
average per capita expenditure in the US is more than $10,000 and less than $100 in
India. In the USA there is broad and extensive quality support through both public and
private facilities. In India, the private sector dominates quality healthcare delivery
which restricts access for many middle class or poor citizens. Even though healthcare
in India is more economical than healthcare in the USA, there is a stark difference in
access to healthcare services in both countries. In spite of the wide availability of
health insurance plans in India, a lot of people in India especially from the
economically weaker section are unable to afford quality medical services. Despite
the nominal premium, health insurance is unaffordable for most of these people. This
is not the case in the USA as people have better access to healthcare services than
people in India.
The economy of the US and India say a lot about the facilities available for the
citizens. Since it is a developed country, people in the USA have better access to basic
24 McPake & Mills, supra note 2, at 813.
50
amenities like healthcare, sanitation, clean drinking water, etc. Moreover, the
government has prioritized its focus on the improvement of the healthcare services
offered in the country. The situation, however, is different in India. Though India is a
developing country with dense population, a good number of people live below the
poverty line and do not have access to basic amenities including clean drinking water,
proper food, sanitation, etc.

2.3 Medical system in USA

For decades, the USA followed a system of paying medical fees to doctors on a fee-
forservice (FFS) basis.25 This is similar to the method of payment in India where
doctors are paid fees for their service by the patients. Due to this, doctors often visited
patients at their homes and provided treatment. Such doctors came to be known as
family doctors.26 The relationship between family doctors and their patients was a
close and confidential one. The patients possessed great trust in the doctors and held
them in high regard. However, during World War II, things began to change when the
government made it mandatory for medical costs of employees to be borne by
employers. 27
Although the FFS system of fee payment continued, a new practice
developed where
the fees would be paid by emplo

2.3.1 Organisation of the medical system in USA

25
<http://www.ebri.org/publications/facts/index.cfm?fa=0302fact>.
26 Cecilia Gutierrez &Peter Scheid, The History of Family Medicine and Its Impact in
USHealthCareDelivery,<https://www.aafpfoundation.org/content/dam/foundation/documents/who-
weare/cfhm/FMImpactGutierrezScheid.pdf>.
27 Roger Stark, Changes in patient and doctor relationships in United States health care,
WASHINGTONPOLICY.ORG,(Nov.1,2015),https://www.washingtonpolicy.org/publications/detail/ch
anges-in-patient-and-doctor-relationships-in-united-states-health-care.
51
Fig. 2.1 International Profiles of Health Care Systems, 2020

2.3.2 Medical negligence in USA

In the U.S.A, medical malpractice is a subset of tort law, which is the body of law that
deals with civil wrongs and includes negligence, gross negligence, professional
negligence, recklessness, and acts of intentional harm. Medical malpractices are fall
under the umbrella of professional negligence.

Medical professionals are held to a higher standard of competence than

nonprofessionals. They are supposed to have a great deal of knowledge regarding
various medical conditions and treatment protocols, and are responsible to deliver a
high standard of care.

Medical malpractice cases in U.S.A are centered around wrongs committed by

medical professionals or medical facilities that cause injuries to their patients. An
individual may have a medical malpractice case if they, their child, or their dependent
has sustained an injury after practitioners committed one or more of the following
acts:

52
 i. Misdiagnosis or delayed diagnosis
ii. An inappropriate choice of treatment
iii. Errors in the execution of treatment
iv. Medication mistakes
v. Failure to follow up with a patient after treatment
vi. Failure to obtain a informed consent before treatment

Medical malpractice suits in U.S.A usually filed in the State trial court, unless the case
involves Federal funding, a military medical facility, or a Administration
facility, then it will be filed in a Federal District Court. A claim may also be filed in a
Federal court if the parties involved are from different states, or if there was an
accused violation of a fundamental constitutional right.

2.3.2 Measures

Medical malpractice law in the U.S.A has generally been left up to the State rather
than the Federal government. Certain aspects of malpractice regulations can vary
widely from State to State. Many states have also adopted recent changes that are
referred to as tort reform measures. Few of the tort reform measures include:

i. Shortening the statute of limitations (the time period in which a plaintiff can
pursue legal action).
ii. Ending joint and several liability (a situation in which one defendant is
responsible for paying all of the damages if other defendants involved in the
same case lack the resources to pay).
iii. Permitting damages to be paid in instalments rather than as a lump sum. iv.
1V. Putting a cap on damages that can be awarded.
v. Requiring an affidavit from a medical expert testifying to the merits of the case
before a claim can be filed.

2.3.2.2 Alternative Dispute Resolution Methods

In America an estimated somewhere between 210,000 and 400,000 patients die each
year due to medical error and many are sustained with injuries that leave them with
lifelong disabilities. It is the third leading cause of death in the United States.

53
Moreover, according to a national survey28 21% of Americans have personally and
31% who have been involved in the care of a family member or friend experienced
medical error. The tort reform measures may be effective in limiting the number and
success of malpractice lawsuits, but necessarily address the underlying issue of
the malpractice epidemic in America. Many medical and legal professionals in
America agree that all parties involved would benefit by a system involving open
communication, learning from mistakes, and conflict resolution without adversarial
procedures.

Alternative Dispute Resolution (ADR) models attempt to accomplish just that. Unlike
the traditional medical culture in which physicians and other professionals are
discouraged from acknowledging their mistakes or discussing what happened with the
injured patient and their family, ADR models promote straightforward
communication and peaceful resolution.

2.4 Medical system in UK

The UK is known for having one of the best medical services in the world, mostly due
to its famous National Health Services (NHS).29 The NHS is a national organisation
with hundreds of branches all over the UK, which provides medical services,
including surgeries, organ transplants and cancer treatment, to all patients free of
charge. However, the UK did not always have free health services. Until the 19 th
century, the medical practice was more akin to a business than a profession and
consisted of doctors, nurses, midwives etc. Wealthy patients would often employ the
services of the best physicians and such physicians did not mind tending to the rich
lords since they could earn more money.30 The relationship between patients who
were of a wealthy class and physicians was that of a master and a servant, with the
distinction that the physician was treated as a higher class of servant due to his
medical expertise.31

28 https://www.infectioncontroltoday.com/view/survey-finds-21-percent-americans-report-
personalexperience-medical-errors.
29 National Health Services, About us, (nhs.uk) https://www.nhs.uk/about-us/#.
30 GEOFFREY RIVETT, FROM CRADLE TO GRAVE FIFTY YEARS OF THE NHS 430-45(1d
ed.1997).
31 ROY PORTER, THE GREATEST BENEFIT TO MANKIND: A MEDICAL HISTORY OF
HUMANITY736-48(1d ed.1997).
54
2.4.1Organisation of the medical system in UK

Fig. 2.2 International Profiles of Health Care Systems, 2020

2.4.2 Medical negligence in UK

The UK has implemented a strict regime of laws that address medical negligence or
clinical negligence. The NHS, which is the public provider of health services, is a
governmental organisation which is bound by clinical negligence laws. Primarily,
clinical negligence in the UK is seen as an offence of tort. Doctors and physicians are
seen to owe a duty of care towards their patients and are expected to act cautiously
while providing treatment. However, certain acts by medical professionals can also
attract criminal prosecution by the State. To determine negligence 3-part test is
conducted to establish whether there was indeed an act of clinical negligence or not.
The process, therefore, relies on establishing fault on the part of the doctor, hospital,
etc. The person making the claim must establish on the balance of probabilities that
negligence has occurred by the hospital or doctor. Compensation will be paid to return
the claimant to the position they would theoretically have been if the harm would not
have occurred. The monetary value will attach not just to actual expenses incurred but
additionally to the loss of amenity experienced and the pain and suffering endured in
consequence of the injury. There are a few more philosophical objectives of
promoting accountability and ensuring that those at fault are deterred from future acts
of carelessness by the need to pay compensation. This deterrent effect is somewhat
reduced by a standard fee for professional indemnity for NHS-employed doctors
unless the doctor is engaged in independent practice. The Clinical Negligence Scheme
55
for Trusts (CNST) does include such a deterrent element, since the premiums payable
by a Trust to indemnify its activities can be reduced by having appropriate measures
in place to reduce the likelihood of claims using a three-level rating system that takes
account of the robustness of safety and governance processes in operation. 32This test
includes an investigation of whether the medical professional owed a duty of care to
the patient, whether there was a breach in the duty of care and whether the patient
suffered harm directly due to the breach. 33 In order for a claim to be successful, all
parts of the test must be fulfilled. Any compensation aims to restore the patient to the
position in which they would have been had the clinical negligence not occurred.34 In
order for criminal negligence to be proven, it must be established that serious harm
has occurred due to incompetence or gross negligence on part of the physician. While
this mechanism was considered as providing appropriate remedy to victims of clinical
negligence, it suffered from drawbacks such as the slow pace at which the cases
moved, the procedural hurdles in courts and the lack of legal knowledge on part of the
claimants.

2.5 Medical system in Australia

The doctor-patient relationship in Australia is aligned with that of practiced in the UK.
Doctors and patients are seen to have a contractual relationship between them where
the Doctor provides services and the patient provides consideration in the form of
fees. 35 The outcome of the contract, which is often unwritten, is seen to be the

pain.36

32 Clinical Negligence Scheme for Trusts (CNST) http://www.nhsla.com/Claims/Schemes/CNST/

(accessed 7 June 2010).
33 Daniele Bryden &Ian Storey, Duty of care and medical negligence, 11(4) Continuing Education in
Anaesthesia Critical Care & Pain, p.1(2011).
34 Id.
35 Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital 1 All.ER
643 [1985]; AC 871 904 (1985).
36 Rogers v. Whitaker 479 HCA (1992).
154
Breen v. Williams 57 HCA (1996).
56
The authority on the contractual nature of the doctor-patient relationship in Australia
was established by in Breen v. Williams. 154 In this case, Ms. Breen received treatment
from her physician Dr. Williams in respect of certain problem with her surgical
implants. Later, she approached Dr. Williams seeking access to the medical records
pertaining to the treatment received from him, which she intended to use to initiate
litigation. When Dr. Williams refused to share the records, Ms. Breen initiated a suit
against him in which she argued that Dr. Williams was obliged to provide her with the
records as the relationship between her and the doctor was a fiduciary one, which
meant that she had put complete confidence in the doctor for the purpose of the
treatment. While examining the case, the Supreme Court, observed that the doctor-
patient relationship was ordinarily a contractual one. The Court held that the
relationship was contractual in origin.37 It noted that it was only under exceptional
circumstances that the same could be held to be a fiduciary relationship. These
circumstances involved situations related to diagnosis, advice and treatment. Hence, it
did not extend to Ms. Breen for access to medical records which was for the purpose
of litigation. Therefore, Breen v Williams is considered to be the leading authority in
observing that the doctorpatient relationship in Australia was a contractual one in
nature as opposed to a fiduciary one.

The doctor-patient relationship in Australia is guided by the codes of the Medical

Board of Australia (MBA). The MBA is empowered to register medical practitioner,
develop codes and guides for the medical profession, investigate complaints about
physicians, conduct panel hearings, assess international medical professionals who
want to practice medicine in Australia and approve accreditation standards in medical
education.38 As such, the MBA has established the code of good medical practice for
doctors in Australia.39 The Code addresses different aspects of the medical practice in
Australia such as the provision of good care, medical professionals working with
patients and healthcare professionals, medical professionals and the healthcare
system, reducing

37 Id. at 102.
38 medicalboard.gov.au) https://www.medicalboard. gov.au/About.aspx.
39 Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia,
MBA1401 (March. 1,2014), https://www.medicalboard.gov.au/codes-guidelines-policies/code-
ofconduct.aspx. (
57
health, teaching, supervisions and assessing, and undertaking research. 40 In addressing
doctors and their responsibilities, the Code also aims to provide details to patients
regarding what they can expect from their physicians. It is drafted in consistency with
the Declaration of Geneva and the International Code of Medical Ethics. 41 The Code
is used by medical professionals, the MBA and for educational purposes. It applies in
both face-to-face consultations as well as to technology-based consultations between
doctors and patients.42

2.5.1 Organisation of the medical system in Australia

Fig. 2.3 International Profiles of Health Care Systems, 2020

2.5.2 Medical Negligence in Australia

40 Id. p.3.
41 WMA Declaration of Geneva, adopted by the Second General Assembly of the World Medical
Association, Geneva, September 1948.
42 A Code of Conduct for Doctors in Australia, (n 52) p.4.
58
act can injure another person must perform the act with reasonable care. Over the last
30 years, the Court in Australia has widened the scope of the law of negligence to
include medical negligence within its ambit. 43
When a case involving medical
negligence is brought before the Court, it first examines whether and to what extent a
duty of care is owed to the patient by the physician. This is followed by an inquiry
into the causation, which establishes the connection required between the negligent
act of the physician and the injury suffered by the patient for the existence of a
liability.

The Civil Liability Act of Australia is an important law as it addresses different torts
including that of negligence. Initially passed by the State of New South Wales,44 each
State in Australia has its own version of the Civil Liability Act, but they are all based
on similar principles. However, the Act provides certain safeguards to professionals as
well, including doctors. It puts limits on the maximum compensation that may be
ordered to be paid by a physician to the patient. AUD400,000 is the cap on
compensation that may be ordered to be paid for non-pecuniary losses by patients. 45
The Act also bars Courts from imposing exemplary, punitive and aggravated damages
even if negligent acts by professionals causes grave injury or death. 46 Further, a duty
is imposed on patients to ensure they take reasonable care of their health and follow
prescribed treatment for their own safety. One of the most controversial provisions of
the Act is its identification of negligent acts by medical professionals where if an act
is widely accepted in Australia by peer professionals as competent practice, then the
medical professional is deemed to be competent to perform the act. 47 Thus, the overall
purpose of the Act is to put an end to excessive punitive damages being awarded by
Courts in Australia and to provide for better protection to professionals including
medical professionals.

-legal regime is well-developed and shows considerable actions

43 Hon. Justice Susan Kiefel AC, Developments in the law relating to medical negligence in the last 30
years, CLA.ASN.AU (June.1,2015), https://www.cla.asn.au/News/be-warned-medical-negligence/.
44 Civil Liability Act 2002, No. 22 (2002).
45 Id. Sections 16, 17 and 17A.
46 Id. Section 21.
47 Id. Section 50(1) .
59
aimed at improving doctor-patient relationships as well as cases of medical
negligence. However, with the Civil Liability Act, Australia presents a different
picture than that presented by the US and UK, putting into focus the rights of medical
professionals. It is easy to get carried away with the rights of patients and impose
stricter duties on medical professionals, but it is also important to consider that the
relationship between doctors and patients, although contractual in nature, is different
from a commercial one.
Due regard must be given to the medical profession and a correct balance must be
struck between medical negligence and the rights of the patients. However,
professional organisations such as the Medical Board of Australia and Australian
Medical Association take on the responsibility of watchdogs and aid in the
establishment of healthy doctor-patient relationships. The guidelines set by these
bodies aid in finetuning the behaviour of doctors towards their patients, peers,
students and society in general.

2.6 Medical system in India

Healthcare in India is primarily a subject under the State list in the Seventh Schedule
of the Constitution. 48
However, certain aspect of healthcare such as the medical
profession and medical education falls with the concurrent list of the Constitution. 49
Therefore, both State as well as Central governments in India are collectively
responsible to ensure a robust healthcare system in the country. The provision of
healthcare services is further divided between the public and private sectors. It has
also become common to see partnerships between the public and private sectors in
providing healthcare services. Funding for healthcare services in the public sector is
mainly derived through taxation and other modes of finance which is not dependent
on the collection of medical fees from patients. However, patients occupy the position
of consumers of healthcare services in both the public as well as private healthcare
domains.50

48 INDIA CONST.art.246.
49 Id. List III.
50 The Consumer Protection Act, 2019, No. 35, Acts of Parliament, 2019 (India).
60
Using the ownership criterion, one can divide the health care system in India into four
main categories.

i. Public sector This includes government hospitals, dispensaries, clinics and

primary health care centres.
ii. Not for profit sector This sector includes charitable institutions, voluntary
health programs, missions and trusts.
iii. The organised private sector This includes general practitioners, registered
medical practitioners, private hospitals and polyclinics.
iv. The informal private sector This consists of practitioners who lack any
formal qualification, priests, hakims, faith healers and vaidyas.51

While India is not an under-developed country and has attained the status of one of the
fastest growing economies, it also suffers from a lack lustre system of provision of
public services. These services have a direct effect on the health of people and thus,
public health currently faces serious challenges which must be addressed by the
government. A further problem in the provision of healthcare facilities is
discrimination which exists even today between people of different genders, religions,
regions, castes and economic statuses. This scenario is aggravated by the high costs of
healthcare in the private sector which further damages the overall economy of the
country. It is estimated that more than 50% of all poverty-stricken households in India
have high healthcare expenses to blame for their state of affairs. The same statistics
also suggest that almost 40 million Indians are pushed into poverty each year due to
high medical expenses.52

2.6.1 Organisation of the medical system in India

51 Dr.Bismi Gopalakrishnan, The Right to Health Uneasy Silence, LIVELAW.IN.(Aug.18, 2017),

http://www.livelaw.in/right-to-health-uneasy-silence/.
52 Rema Nagarajan, Health spending pushed 55 million Indians into poverty in a year: Study, THE
TIMES OF INDIA, Jun 13,2018, at https://timesofindia.indiatimes.com/india/health-spending-pushed-
55-millionindians-into-poverty-in-a-year-study/articleshow/64564548.cms
61
Fig. 2.4 International Profiles of Health Care Systems, 2020

2.6.2 Medical Negligence in India

The medico legal framework in India that affects the medical profession and its
working, and which prevents malpractices holds an important place.In the context of
Indian law, medical negligence comes under three categories viz., criminal
negligence, civil negligence and negligence under Consumer Protection Act. Different
provisions regarding the remedy in the form of punishment and compensation are
there in these three laws.
2.6.2.1 Criminal law and medical negligence

Indian criminal Law has placed the medical professional on a different footing as
compared to an ordinary human. Section 304A 53 of the Indian Penal Code states that

53 The Indian Penal Code, No. 45, Acts of Parliament, 1860(India).

62
whoever causes the death of a person due to rash or negligent act not amounting to
culpable homicide will be punished with imprisonment for a period of two years, or
with a fine or both. Thus, when a person engaged in the commission of an offence
within the meaning of IPC and causes death by rashness or negligence, but without
either intending to cause death, or thinking it likely that he shall cause that, he should
be liable for the punishment of the offence which he was engaged in committing
added to the ordinary punishment of involuntary culpable homicide.

Criminal liability may be imposed on a doctor under particular situations wherein the
patient dies. The death must also be due to malicious intention or gross negligence.
Most of the time the doctor will also be responsible vicariously where the

under Tort law.

Despite the rights of a patient mentioned above, there are a few exceptions as well.
Sections 80 and 88 of the Indian Penal Code contain defenses for doctors accused of
criminal liability. Section 80 says that, nothing is an offense that is done by accident
or misfortune and without any criminal intention or knowledge in the doing of a
lawful act in a lawful manner by lawful means and with proper care and caution. As
per section 88, a person cannot be accused of an offense if she/ he performs an act in
good faith for

has explicitly or implicitly given consent.

2.6.2.2 Consumer Protection Act and medical negligence

In India, since 1990 a huge speculation and discussion as to whether medical services

Section 2(1)(o) of the Consumer Protection Act. Deficiency of service means fault,
shortcoming, imperfection, or inadequacy in the nature, quality, purity or manner of
performance that is required to be maintained by or under any law for the time being
in force or has been undertaken to be performed by a person in pursuance of a

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contract or otherwise about any service. A complaint under consumer law is filed in
the District
Forum if the value of services and compensation claimed up to 1 crore, before the
State Commission, if the value of the goods or services and the compensation claimed
exceeds 1 crore but not more than 10 crore and in the National Commission, if the
value of the goods or services and the compensation exceeds more than 10 crore.

The good and positive aspect of the Consumer Protection Act in India is that, there is
a minimal fee for filing a complaint before the District Consumer Redressal Forums.
In
1995, the Supreme Court decision in Indian Medical Association v. V.P Shantha

contractual patients the power to sue doctors if they sustained injuries in the course of
courts for compensation.

2.6.2.3 Civil law and medical negligence

In India the negligence under civil law encompasses many elements. Under the torts
law or civil law, this principle is applicable even if the medical professionals provide
free of service. It can be said that where Consumer Protection Act ends, tort law
begins.
In the cases where, services offered by the medical professionals or the hospital do not
the CPA, patients can take
recourse to tort law or civil law under negligence and claim compensation. Here, the
burden
has suffered injury. Such cases of negligence may include
transfusion of blood of different
removal of organs without consent and administering wrong medicine resulting in
injury. Persons who offer medical advice and treatment simply do not say that they
have the skill and knowledge to do so, that they have the skill to decide whether to
take a

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 Indian Medical Association v. V.P. Shantha, A.I.R. 1996 S.C. 550 ( India).
181

2.7 Comparative analysis of the medical system

Medical System USA UK Australia India
Health 8 % of GDP 9.8% of GDP 10.3% of GDP 3.9 % of GDP
expenditure by
Government

Public insurance 34% 100% 100% 20%

Private Insurance 67% 10.5% Supplementary 26%
coverage coverage
Quality care The Agency Care Quality Australian The National
for Healthcare Commission Commission on Accreditation
Research and ( CQC) Safety and Board for
Quality Quality in Hospitals and
(AHRQ) Health Care Healthcare
(ACSQHC) Providers
(NABH)
Protection of The Health The Access to My Health No single Act
Health record Insurance Health Records Act
Portability and Records Act 2012
Accountability (AHRA) 1990
Act
(HIPAA)1996

Table: 2.1
2.8 International Treaties, Conventions and UDHR

The doctor patient relationship is multi-layered, dynamic and based on mutual

function but rather an abstraction compassing the activities of two interacting systems
or persons. From differences in the relative power and control exercised by doctors
and patients different forms of doctor-patient relationship arise such as paternalistic
relationship, mutuality relationship, consumerist relationship and default
relationship.54Under such circumstances, it becomes difficult for an abstract regime of
law such as international law to lay down binding laws that are enforceable directly
on doctors and their patients. The main complications for international law in setting
54 OF MEDICINE, 1- 4 (22d ed. 2014).
65
down rules that govern doctor-patient relationships have to do with interpretation,
adjudication, enforcement and engaging remedial measures. These issues are more
easily dealt with by domestic law-making regimes rather than international treaties or
rules.

There is some consensus in the international community that doctors owe a duty of
care to patients. As such, international regime has made attempts to convince States to
sign treaties that oblige them to enact legislation that will ensure regulation of the
doctorpatient relationship. The Universal Declaration of Human Rights adopted by
majority

to all persons.183 It obliges States to ensure that their people are afforded a standard of
living that is necessary for them to live a healthy life with access to basic necessities
such as good, water, clothing, housing and medical care. It is important to note that
although the Universal Declaration of Human Rights was more of a declaration than a
treaty at the time of its drafting; it has now come to assume part of customary
international law.

Apart from the aforementioned sets of rules, there is no international convention or

treaty that regulates medical ethics or doctor-patient relationships. It is mostly up to
States to enact their own legislation or empower medical governing bodies with
authority to frame rules and take action against defaulters. The content of laws and
rules in different States do differ but most of them are based on certain fundamental
principles which are recognised by all States. Therefore, in terms of common features
propagated by the international legal regime, it is seen that the following are to be
treated as the basic principles of doctor-patient relationships that are to be adopted by
national governing bodies:

i. The principles of the WMA International Code of

Medical Ethics
ii. Obligation of care iii. iv.
Medical confidentiality
v.
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 vi. The principles enshrined in the Lisbon Declaration

While the international community has attempted to frame rules and guidelines
regulating the medical profession, its limited legitimacy, authority and jurisdiction
make the guidelines less strict and almost unenforceable in comparison with domestic
rules which have their source in Parliaments or Senates. Due to this, it is difficult to
achieve the same level of regulation for doctor-patient relationships all over the world.
Western countries adopt a higher standard of rules while developing countries in the
East are less strict regarding medical ethics.55

2.9 Conclusion

The chapter has looked into the international legal system governing medical practice
in the world and assessed the application of the same in the context of medical
practice in India. This has provided the thesis with considerable inputs regarding the
differences in the expectations from medical practitioners at the international level as
compared with that in India.

A large portion of the chapter is dedicated to making a comparative analysis of the

medical systems in different developed countries with that which is present in India.
As a case study, the medical systems in three countries namely USA, UK and
Australia have been studied in depth. The analysis with the USA has revealed that the
Indian medical system lacks in terms of implementing a healthy doctor-patient
relationship. As a result, India is more prone to witness medico-legal cases than the
USA. The comparative analysis with the medico-legal system in the UK is important
as India has inherited its legislative system from the UK. It is observed that the system
in the UK is different as it involves the operation of the National Health Services.
Therefore, the concept of medical expense does not become relevant in the UK in
medico-legal cases. In Australia, it is noticed that a high standard of medical ethics is
expected to be followed by the medical practitioners as compared to India. It is also
seen that the regulatory bodies for the medical profession take a strict view of medico-
legal cases and actively work towards their reduction. With regard to quality in health
55 Medicines Sans Frontieres, The Practical Guide to Humanitarian Law, GUIDE-
HUMANITARIANLAW.ORG (April.9,2002),
<https://guide-humanitarian-law.org/content/article/3/medical-ethics/>.
67
care, Australia is having The Australian Commission on Safety and Quality in Health
Care,
(ACSQH) a corporate Commonwealth Government agency and part of the Health
Portfolio which is the main body responsible for safety and quality improvement in
health care. The ACSQH has developed service standards that have been endorsed by
health ministers. These include standards for conducting patient surveys, which must
be met by hospitals and day surgery centres to ensure accreditation. In the same line
in
India though accreditation of health care providers does provide a mean for achieving
efficiency in the system of medical liability, but the process is very much in its
nascent phase. The accreditation committee of NABH, audits the legal regulations,
safety guidelines and service aspects of the hospitals and health professionals during
assessments. But in reality it is different as the guidelines are in paper. Only during
assessment period the standards are followed. There is no continuous follow-up of the
guidelines by the NABH committee which makes the accreditation meaningless. Also,
it is pointed out that, accreditation is to be made compulsory for all hospitals
irrespective of their size with proper punitive measures. All these studies have jointly
revealed that the quality of medical treatment and medical system in India is weak as
compared to those in developed countries in terms of prescription of norms as well as
their enforcement. Therefore, any reform in the medico-legal system must take into
consideration the formation of a robust mechanism to reduce cases involving medical
negligence.

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