28 Aug Legal remedies for medical negligence
Medical practitioners/ doctors are the most important part of our society. In the Indian Society, the doctors owe certain duties toward their patients who put their utmost faith in them. The doctors have duty to take reasonable due care towards the treatment of their patients.
But many doctors are not taking reasonable care and operate the patients in negligent and casual manner which leads to some minor or serious kind of injury to the patients. Medical Negligence can be seen in various aspects such as there can be medical negligence during operations, diagnosis, delivery of child etc. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to herein above, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued.
Since the medical field is vast, making it is difficult to cover all the aspects of it, we can devolve the basic concept to determine medical negligence on the basis of following three components:
1. Existence of due care: It is well known that the doctors owe duty of care towards his patients. The doctor should confer a reasonable degree of care and competence. The reasonable degree of care means degree of caution and concern, an ordinarily prudent and rational person would use in similar circumstances. In the judgment of LaxmanBalkrishna Joshi vs. Trimbak Bapu Godbole And Anr, the Hon’ble Supreme Court has clearly stated that“practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care”.
2. Breach of due care: If a reasonable and skilled person was able to foresee the risk but he did not take any step to overcome the risk then he would be liable for breach of due care.
3. Damage caused by the breach: There should be some kind of injury or damage by such breach of due care, then only the negligence will be constituted.
- Criminal liability: It arises only in case of death of the patient which occurred due to the medical negligence. In those circumstances, an aggrieved person can approach Criminal Court under Section 304-A of Indian Penal Code, 1860 (“IPC”) by claiming relief for the negligence.
- Civil liability: Under Civil Law, an aggrieved person either can file a civil suit before the Civil Court or file a Consumer Complaint before the Competent Consumer Forum under Consumer Protection Act, 1986 (“CPA”) against the medical practitioners or hospitals who have committed medical negligence by claiming damages in form of compensation.
Vital principles for medical negligence
It is important to test whether the medical negligence comes under negligence or not. The Apex Court in its own landmark judgment of Kusum Sharma & Ors vs. Batra Hospital & Medical Research & Ors clearly settled the following principles which must be kept in mind while dealing with the medical negligence cases:
- Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
- Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
- The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
- A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
- In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
- The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
- Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
- It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
- It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
- The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurising the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
- The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
Remedies under the Consumer Protection Act, 1986
Consumer Protection Act (“CPA”) was enacted by the Parliament of India on 24th December, 1986. An act was established for the protection and betterment of the interest of the consumer.The consumer or a person on behalf the Consumer can file a complaint against the medical negligence.
Who is a customer?
As per Section 2 (1) (d) of the Consumer Protection Act, 1986, a person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. The definition of the Consumer also includes the patient who avail the services of medical practitioner for his treatment.
As per Section 2 (1) (c) of the Consumer Protection Act, 1986, a Complaint means any allegation made by the Consumer in writing before the Consumer Forum against the deficiency or negligence against the services hired by the Consumer.
Where can a complainant file the compliant?
- Before the Learned District Consumer Forum (“DCF”) if the value of claim/compensation towards deficiency/negligence is less than Rs. 20 Lakh.
- Before the Hon’ble State Consumer Dispute Redressal Commission (“SCDRC”) if the value of claim/compensation towards the deficiency/negligence is more than Rs. 20 Lakh and less than Rs. 1 Crore.
- Before the Hon’ble National Consumer Dispute Redressal Commission (“NCDRC”) if the value of claim/compensation towards the deficiency/negligence is more than Rs. 1 Crore.
The proceedings of the Complaint shall be initiate before the Competent Forum in the following manner:
- Firstly, the Consumer/Aggrieved Party shall file a Complaint in written before the Competent Forum.
- After admitting the Compliant, the Competent Forum sends a notice to the Opposite Party and directs them to file the Written Version within 30 days of the receipt of the notice.
- Thereafter, the Complainant may file the Rejoinder to Written Version of the Opposite Party.
- Both parties then file their evidence along with expert opinion and medical literature, if any.
- Upon perusal of all documents and hearing both sides, the Competent Forum passes their judgment.
An Appeal can be prefer against the judgment of the District Forum before Hon’ble State Consumer Dispute Redressal Commission within 30 days from the date of receipt of orders. Thereafter, an Appeal will then go from Hon’ble State Commission to Hon’ble National Commission and Hon’ble National Commission to Hon’ble Supreme Court.
- A Complaint can be filed before the Competent Forum within two years from the date of cause of action/deficiency in service arises
- An Appeal can be filed before the Competent Forum within thirty days from the receipt of the impugned order.
- A Revision Petition can be filed before the Competent Forum within ninety days from the receipt of impugned order.