Year : 2022 | Volume
: 8 | Issue : 2 | Page : 98--104
Legal aspect of medical practice: A sojourn
Rajesh Harsvardhan1, Rishabh Kumar2, Ayush Mehrotra3,
1 Head, Department of Hospital Administration, SGPGIMS, Lucknow, Uttar Pradesh, India
2 Advocate, High Court, Lucknow Bench, Lucknow, Uttar Pradesh, India
3 Resident Administrator, Department of Hospital Administration, Dr. RMLIMS, Lucknow, Uttar Pradesh, India
Department of Hospital Administration, SGPGIMS, Lucknow, Uttar Pradesh
The Consumer Protection Act (CPA), 1986 evolving over the strands of time by legal and judicial proceedings has given the consumers of healthcare services a legal recourse to air their grievances. Although it is important to punish guilty medical professionals, it is also equally important to protect medical professionals who act in good faith from harassment. Hence, courts need to strike a perfect balancing act.
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Harsvardhan R, Kumar R, Mehrotra A. Legal aspect of medical practice: A sojourn.J Indira Gandhi Inst Med Sci 2022;8:98-104
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Harsvardhan R, Kumar R, Mehrotra A. Legal aspect of medical practice: A sojourn. J Indira Gandhi Inst Med Sci [serial online] 2022 [cited 2022 Oct 7 ];8:98-104
Available from: http://www.jigims.co.in/text.asp?2022/8/2/98/355321
”Salus Populi Suprema Est Lex” - The Welfare of the People is the ultimate Law.
- Cicero (106 BC - 43 BC)
In India, consumers had a poor interface to go for legal recourse to air, alleviate or find recourse to their grievances in the field of health and welfare. After the Consumer Protection Act (CPA), 1986 and key amendments of March 2003 consumers have become further assertive while buying (and using) goods and services.
The wider ambit of the CPA as envisioned and later elaborated by parliamentary and judicial underpinnings (and interpretations) was the best our Indian citizenry got. The CPA gave became a forum for legal remedy to their complaints. Consumer courts (CCs) helped the Indian citizenry to get back their money from shopkeepers, builders (or conglomerates), nursing homes (and healthcare institutions), or goods/service sellers of all kinds, and lastly from reputed Government organizations such as railways, bus companies, and so forth.
The civil society organizations (consumer societies) on lines of CCs are also rendering advice on consumer issues. Consumer Rights Education and Awareness Trust at the local level and Consumer Education and Research Society, Ahmedabad, at the national level also help consumers across pan India.
The Recent Landmark
A Judgement by the Honorable Supreme Court (SC) stated that medical services for which tariff has been charged on patient, falls under the jurisdiction of CPA 1986, creating a turf for the stretched-out dispute between doctors (and healthcare providers) and consumers on the issue.
As this issue is repeatedly brought under deliberation for courts, counter-claims or statements are being made from and within the medical fraternity, probably as a larger part of an approach that, CCs aren't armed or competent enough to critically evaluate on convoluted health matters leading to a medico-legal lawsuit, pointing toward the opening of wider scope for biasedness. Once the powers of courts have been amplified, Medical councils (purported to be better armed than CC), be duty-bound to take up these issues. The CPA might in many cases adjudicate against the interests of patients as there might be no legal-defensive medicine. This point of view gives out a lot of air to this argument but fails to shed light on the way forward. Now, as this dust has matured, it is worth scrutinizing how our medical fraternity has responded to the very stand it tried to vocalize.
It is estimated that 98,000 people die every year in the United States because of mistakes committed by medical professionals, as published (in the year 2000) in the famous work – To Err is Human! One can well imagine the figures in India in the current scenario. However, this law doesn't target to punish all the acts of a medical professional causing injury to a patient. It is primarily concerned with negligence. Medical negligence arises from an act of omission or commission by a medical practitioner, which a reasonably competent and careful practitioner would have committed under normal circumstances. A medical practitioner is expected to act in a reasonably skillful behavior by adopting ordinary practiced skills of the profession with care. However, there is room for ambiguity within judicial interpretation as what is “reasonable” and “ordinary” is in fact a question. Essentially, medical practitioners are bound to exercise an ordinary degree of care and not to the highest possible degree ethically too (Hippocratic Oath). Ordinarily, if a medical practitioner has shown reasonable care, then he can't be held liable for negligence. A meager difference in opinion can't be a ground for fixing accountability on part of a healthcare practitioner. Their duties to patients are clearly spelled out and are empowered to decide whether to admit or not any specific case; they must decide when and what treatment is to be prescribed, and when is to be administered or stopped. A breach in any or all of these obligations gives the patient the right to action under negligence.
Liability Under the Consumer Protection Act
In 1995, a Judgement by the Honorable SC in Indian Medical Association versus Shantha case had brought the healthcare professionals within the realm of a “service” as defined in the CPA. It defined the nature of relationships between patients and medical professionals as contractual. Henceforth, all patients who had sustained wrongs in the course of treatment could now sue medics in “procedure-free” and consumer-friendly courts for reimbursement for their wrongs.
The CC has also held that although services being provided by healthcare practitioners are of a personal nature and they can't be treated as contracts of personal service (which are excluded from the CPA). There are also contracts for service, under which a medical professional can be sued under CPA in CC. A “contract for service” implies a contract whereby one party undertakes to render services (such as professional or technical services) to another, in which a service provider isn't subjected to a detailed direction, supervision, and control. The provider exercises due technical or professional competency and uses learned knowledge and discretion. A “contract of service” also implies a relationship between master and servant and involves an obligation to submit to orders given during the nature of work or task being performed and as to its modalities of execution or compliance. This nature of “contract of service” is beyond the domain of the CPA, mentioned under Section 2 (1)(o) of the act.
The CPA won't rescue, if the service is rendered free of cost, or if only a nominal registration fee had been paid. However, if patients' charges have been waived off because of their inability to pay, they are to be considered consumers of service and can sue under CPA.
Liability Under Law of Tort
As per civil laws, the fine junction where CPA ends, the Law of Torts takes over to protect the goods of patients. This law applies even if services provided by medical professionals are free of cost. Therefore, in cases, where services being offered by a healthcare professional or hospital don't fall within the ambit of “service” as defined in by CPA, patients can take legal remedy of negligence under the Law of Torts and claim reimbursement. Here, the onus lies on the patient to substantiate that the medical practitioner was negligent and wrong as an outcome of this. This may include incorrect blood group transfusion, leaving a mop in the patient's open wound after operating, failed sterilization resulting in childbirth, purported removal of vital organs without consent, administering the wrong drug, etc.
Liability Under Criminal Law
In cases of obvious negligence criminal proceedings can suo moto be initiated against treating professional punishable under Section 304 (A) of the Indian Penal Code (IPC) for actions leading to loss of extremity or death in extreme cases by an act of reckless or negligence, e.g., demise of a patient during operation by an incompetent professional. According to Honorable SC's recent decision, the level of negligence prerequisite to punish a professional under Section 304 (A) of IPC must be clearly evidenced of criminal negligence which demonstrates gross negligence or recklessness on his part. The professional can't be sued under this provision for mere lack of necessary care.
Criminal liability won't be applicable if the patient collapses during the process of caregiving due to a miscalculation in decision-making or death. Every civil negligence can't be criminal negligence, and for civil negligence to be of criminal nature, it should be dubbed gross negligence. Very rarely a professional is sued for murder or an attempt to murder as they never plan to kill their treating patients-bounded rationality and ethical principles of this profession, and therefore don't hold the prerequisite levels of guilt-ridden purpose. When a professional treats a patient where in normal circumstances there is a high level of risk of death involved, they do in good faith. A professional can't be reprimanded for the mindset to hurt a patient under IPC. Sections 87, 88, 89, and 92 of IPC provide immunity to treating professionals under criminal prosecutions who had acted in good faith for patients. The onus lies on the defense to give evidence that had the professional not acted in that way, under those circumstances, would be fatal for the patient. On the contrary, a professional who had willfully used a piece of unsterile equipment for operation can't be declared guilty free under the above-mentioned sections of IPC.
Earlier professionals used to argue that only those selling goods were encompassed under CPA. In its judgment in a case where Lucknow Development Authority, was a party, the Honorable SC defined service as including “not only day to day buying and selling. But even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer.” Using this wider interpretation, the court finds no reason to exclude professionals.
The court duly recognizes that healthcare professionals work in an environment where success isn't certain every time because of external factors that are beyond their control. The CPA therefore, requires that the treating professional should possess a minimum level of competence, exercising reasonable skill and care when attending to a patient. Healthcare professionals argued in the past that as medical councils (now National Medical Commission) oversee their medical practice, there is no felt necessity for the CC to concern itself with practitioners. The SC has rejected this argument by pronouncing that as “It would thus appear that medical practitioners, though belonging to the medical profession are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected.“
On the front where nontechnical judges are pronouncing their verdict on medical cases, the SC points out that amateur adjudicators act as a remedy against unwarranted technicality. “A structured and representative tribunal incorporates legal competence with the merits of amateur decision-making by having competent members with knowledge, experience, and expertise in handling problems relating to various fields to protect the interests of the consumers.”
Eminent Jurist Soli Sorabjee argues for taking great precaution in making selections to the District Forums and State Commissions, so as to ensure the integrity and garner public confidence. Mr. Sorabjee further says which is equally applicable to all healthcare professionals, thus: “Viewed in its proper perspective the judgment need cause no worries to a competent and honest professional. It must be remembered that professionals are for the people, the consumers of their services.”
The Honorable SC in a landmark judgment has pronounced that medical fraternity (practitioners and hospitals) charging fees are covered under the CPA. This doesn't mean that aggrieved patients will have smooth sailing in all cases of negligence. Experience demonstrates that after a medical misadventure, the treating practitioner/hospitals refuse to give an Xerox copy of medical records to patient or his relative. In the absence of complete medical records, it isn't possible or difficult to ascertain by practitioners or court, whether there was any negligence or purported fault by the concerned practitioner or hospital. Oddly, it is they (concerned practitioner or hospital) who convey to patients or their attendants that their medical records would be given only if ordered upon, hence compelling for greater litigations and settlements. Medical practitioners/hospitals must bear in mind that a patient has a right to a copy of his medical records.
It might even be in the practitioner's good interest to give medical records as a norm. In countless cases, the patient or relatives may not even want to file a case after having obtained the opinions of other domain experts on the probable causes leading to unwanted outcomes. Even after obtaining medical records and domain expert opinion, the concerned can approach a CC for the resolution of grievances. CC also assert to obtain the opinion of an expert to support their cause. Although many practitioners might covertly admit that there was a chance that the patient could have been treated better (against the undesired outcome), their fraternal feeling disallows them to pen down a contrary opinion to that.
The fraught in the medical profession, as in others, is-the dearth of ethics. Deliberate neglect, negligence, and lack of knowledge (or expertise) are some of the common claims made against medical professionals. No professional would deliberately neglect his patient, although sometimes there are episodes of negligence due to variables. However, what is awful nowadays is the miserable ignorance of the basics of scientific practice. Many professionals try to cover up their incapacity by either referring even simple ones to specialists or by succumbing their patients to uncalled-for and inflated pathological investigations. Although there are cases where this may be a necessity, there is a felt perception amongst the general populace of a nexus between the medical practitioners and the diagnostic agencies, which is often highlighted upon too.
This judgment of the SC of bringing in of medical profession under CPA should not be viewed as an aggravation but as a trial. India is and has been proud of its medics and their extraordinary achievements. It is now for the profession to demonstrate that it is worthy of their trust.
The Sad Reality
The SC's ruling bringing the medical practice under the ambit of the CPA has emanated at the correct time. Not long, this profession used to be a noble one with medics being oath-bound to work for humanity with paramount commitment and lacking desire for materialistic coziness. But in recent times many of our professionals in the private settings have turned this into a money-making machine.
The mushrooming of nursing homes and corporatization of healthcare with a capitalistic mindset have ransacked the soul of this profession. The new pyramid of values on each minor procedure these so-called private facilities charge is widening the gap between the haves and have not's. This successive decline in standards of care being provided can largely be attributed to, the inevitable fallout of capitation fee colleges., If parents pay crores to see their offspring acquire prestigious medical education, they in turn expect returns commensurate return on their investment. Naturally, the imbibed temptation to make a quick buck subsumes core professional values; hence, outcomes can be predicted in advance.
It is no wonder that we keep hearing of professionals severing out the wrong limb, removing or operating upon the wrong breast, or eye, or leaving behind medical equipment or cotton swabs in the body aren't new. A recent survey exhibited that normal deliveries are rare in nursing homes; the Caesarean section is the rule of thumb. It's strange that the job dais (with limited devices and modern setup) used to do with such ease earlier in rural India can't be performed with the same efficiency by modern-day technocratic doctors powered by advanced diagnostics and devices. Medical professionals are now and then threatening to hike their already tall professional consultation fees to finance their lavish lifestyles and indemnity covers in the wake of awakened jurisdiction. Instead, they should develop ways and means to guarantee that their conduct doesn't attract the provisions of CPA. This is therefore a chance to clean. Hiking fees won't help. It's high time to come clean on their credibility.
Supreme Court Judgement on Criminal Medical Negligence: A Challenge to the Profession
The Honorable SC in Dr. Jacob Mathew's case gave the verdict that to make a medical professional criminally accountable for the expiry of a patient, it ought to establish that there was evidently incompetence or negligence on the part of the treating professional which clearly has crossed the limits of compensation based on civil liability. Criminal liability would be imposed only if the professional act in a way that endangered life (and safety) or lead to the death of the patient. The directives have also been spelled out in this case.
Negligence, simply, is failure to take due care and caution as regards to established scientific principles of medical care. It is a breach of a medical code caused by the omission or commission to act which a sensibly guided person-under those conditions which usually regulate the manner of human affairs – should haven't been done. It may also be something, which a prudent and pragmatic person would haven't done.
The essential sub-components of negligence are: “duty,” “breach,” and “resulting damage.” These definitions are rather relative and can change under circumstances. When trying to pull away a person from the grasp of an attacking animal, one can't ask whether this would have caused damage to a person's limbs. Medical professionals also face similar contingencies usually. While treating an accident victim under a life-threatening condition, a medic may have to attempt a crude but vital form of emergency procedure in an attempt to save the person's life. No negligence can be attracted upon in such cases.
Section 304 (A) of IPC, mentions that acts of rash or negligent behavior attract fines or detention for up to 2 years or both. The onus to gather evidence of criminal liability lies upon the complainant. An accused (medical professional) will be presumed innocent until evidence beyond a reasonable doubt is presented by the prosecution; a mere preponderance of probabilities would satisfy the civil liability. For the above-stated reasons, an act that is negligent as per civil court need not automatically be culpable negligence in criminal court too.
Also comes as medical care is a teamwork work (medical and paramedical staff) therefore the question arises whether different benchmarks for accountability and liability is to be fixed and whether treating professional be placed on a higher pedestal for fixing civil or criminal charges for their acts. The court had also mentioned on the record that as citizens become increasingly aware and conscious of their available rights (and remedies), the number of cases against healthcare professionals is going to rise under CPA on account of deficiencies in the levels of care being provided. As medical professionals are increasingly being put on trial under Section 304 (A) of the IPC (instigating the death of a person by an act of rashness or negligence which doesn't amount to culpable homicide) which is punishable with a fine or imprisonment up to 2 years or both. Professionals are also being trialed under IPC Section 336 (rash or negligent acts risking human life), Section 337 (causing harm to any person by acts of rashness or negligence risking human life), or Section 338 of the IPC (leading to grievous injury to any person by acts of rashness or negligence risking human life). The court also observed that frivolous allegations of rashness or negligence are often raised against medical professionals by persons who are short of basic medical knowledge, to extract undue reimbursement. This causes serious awkwardness and aggravation to medics who compulsorily seek bail to avoid arrest. If bail isn't granted, their imprisonment is bound to happen. Although they might be absolved of the charges at the culmination of tenure; in the interim the loss of reputation; is irreversible. Therefore repetition of such instances has to be restricted.
Since the medical profession renders a noble service, it needs to be safeguarded from frivolous or unfair trials. With this perspective, the court went into deliberation and laid down as to what can be clubbed under actionable negligence w.r.t medical profession. The law as laid down is as follows:,
A simple lack of care, an error in judgment, or an accident, even fatal, won't constitute culpable negligence. If the treating professional had followed procedures as per current accepted and laid down Standard Operating Procedures at the relevant time, S/he can't be held accountable for negligence merely for a better or alternative course of treatment which was made available at that point of time, or simply because a senior professional wouldn't have chosen to resort to that practice at that point of timeProfessionals might be held accountable for negligence if they didn't possess all the required skill set that they had claimed off, or if they didn't exercise, reasonable caution and competence in patient care as expected from themThe word “gross” hasn't been mentioned in Section 304 (A) of IPC. However, as far as medical professionals are concerned, it is to be read and interpreted, with insistence on finding proof of gross negligence to hold a professional guilty or initiate criminal proceedings against himThe doctrine Res ipsa loquitur (the thing that speaks for itself; no other evidence needs to be insisted) is only a rule of evidence. It can operate under the domain of civil law, but that by itself cannot be pressed into service for determining the liability for negligence within the domain of criminal law. It has limited application in criminal negligenceStatutory rules or executive instructions incorporating definite guidelines governing the prosecution of medical professionals need to be framed and issued by the Central and State governments in consultation with the National Medical Commission (erstwhile Medical Council of India). Until this is done, private complaints must be accompanied by the credible opinion of another competent practitioner supporting the charge of rashness or negligence. In the case of police prosecutions, such an opinion should preferably be from a practitioner in government serviceMedical Professionals accused of rashness or negligence shouldn't be arrested simply because charges have been pressed against them; this must be done only if it is obligatory for advancing the investigation, or for gathering evidence, or if the investigating officer suspects that the accused will abscond or can influence the outcome of the investigation.
The Honorable SC hasn't mentioned on record that medical professionals can never be sued for medical negligence. It has only stressed the need for care and caution in prosecuting medics in the larger interests of society. An amount of extra immunity or insulation is allowed to them bearing in mind the noble service rendered by their fraternity and in view of the reports that plaintiffs often use criminal cases to pressurize medical professionals and to extract unfair reimbursement.
The principles mentioned above also apply to other professionals like engineers and lawyers as well. The decision in Jacob Mathew's case was a landmark judgment however, some of its principles have been mentioned in earlier judgments too.
This judgment, however, may give scope for censure that the court, vested with the power to infer the written law has, in its place, ventured to alter the law by inferring it the way it believed would be better for society. Since Section 304 (A) of IPC refers only to rash or neglectful acts, it is a cynical proposition that means rea (guilty intent) must be exposed for establishing a case of criminal negligence. The interpretation reading in the prefix “gross” before “negligence” (the latter alone appears in Section 304 (A) of the IPC) also attracts the same criticism.
One has to be optimistic that medical professionals will rise to the occasion and start discharging their roles with additional care and responsibility rather than trying to hide under the shield of court. Let not the profession be heartened by the shield, and turn less wary and cold-hearted into the patients who approach them. If this occurs, that will be a sad day for suffering patients. These newer judgments, reading many things, not in the written law, would result in a serious blow to their rights.
While it is obligatory to save medical professionals walking the righteous path, it is also obligatory to take to down those violating the oath that they took. Immunity to this group (violators) means greater suffering for vulnerable patients.
The actual nature of the medical profession makes it susceptible to civil and criminal trials. Many trials are filed to pester medics, or are filed to escape the expense of bills. In the post-V.P. Shantha era, it is difficult for medical professionals to ignore responsibility. It has also become easier for the public to force lax professionals to CC. While it is equally imperative to penalize guilty professionals, it is also equally imperative to protect professionals who act in good faith from pestering. The courts must strike a perfect balancing act. The Honorable SC once observed that a medical professional's job is to protect and prolong the life and the courts ought to assist in this cause as far as possible. It is also the call of duty for the courts to see that medical professionals are not harassed in the way of performing their duty.
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