Authored by: SIDHANT MALHOTRA
AMITY LAW SCHOOL, NOIDA
A study confirms that there is a 110% rise in the number of medical negligence cases that are reported every year. The study also produces out the fact that 12% of the cases decided by the consumer protection forum are linked to medical negligence out of which 90% are the cases including hospitals. Between 60 to 66 percent of the cases filed are because hospitals do not take decent consent from relatives before performing certain procedures or changing hospitals, or because of improper documentation throughout the course of diagnosis and treatment.
What is Medical Negligence?
The definition of ‘Medical Negligence’ has continued unchanged over the time- “Failure to exercise reasonable skill as per the general norms and the prevalent situation is termed as medical negligence.”
Medical Negligence is the tort which exercises cognizance of the following:
- A legal duty either express or implied to treat patient need exist.
- Breach of such legal duty, if any, in relation to the expected conduct and performance of the people from the same profession.
- Presence of damage produced by such breach which must result in injury which needs to be neutralized.
The 2 things which are indispensable before hearing any case relating to medical negligence have been noted down below:
- When evaluating the measure of care as adopted in the practice by the medical practitioner, the measure of care is assessed bearing in mind the knowledge obtainable at the time contemporary to the occurrence of the incident, and not at the date of trial.
- At the time of development of medical negligence caused due to failure to use some particular medical equipment, the charge will not be successful if the medical equipment was not present or accessible at that time of time on which it is recommended as must have been applied.
What is not Medical Negligence?
- It is imperative to quote Lord Denning’s judgment in Roe vs. Minister of Health, where he has tried to justify an act that would not amount to medical negligence: “But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. The initiative would be stifled and confidence is shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.”
- Without a 2nd though, the doctor has complete autonomy in adopting and administering the appropriate therapy or treatment which he considers fit for the particular patient and puts forward to furnish to his patient and such autonomy is relatively higher in instances of emergency.
- Consequently, any default to cure, complication, an occurrence of an infection, or even death, cannot be viewed in segregation and labeled as being an act of medical negligence. A defeat of operation and side effects cannot always be said to be due to medical negligence.
Medical Services Within the Purview of Consumer Protection Act
It was only after the judgment of Supreme Court in Indian Medical Association vs. VP Shantha, that medical profession has been replaced under the purview of Consumer Protection Act,1986 vide Section 2(1)(o), 1986 of the act.
What Can Be Considered As ‘services’?
- Contract of Service – It means a relationship between a master and servant which involves complete obedience of a just and reasonable order provided by the master to the servant with respect to the mode and manner of performance of the order. This does not fall under the ambit of COPRA.
- Contract for Service – It indicates to a contract in which one party accepts to furnish services, for instance, professional or technical services to or for some other person in the discharge or conduct of which, he is not bound by any control or direction but employs his professional skills and exercises his own intelligence and comprehension.
In order to bring the ‘service’ within the ambit of the definition of services provided in Section 2(1)(o) of COPRA following basis needs to be adhered to:
- Service(s) shouldn’t be free of charge
- Service(s) under a contract of personal duty is not covered under the Consumer Protection Act.
Consequently, medical services under the contract of personal services or rendered free of cost will not be within the purview of the definition of the services itself provided under Section 2(1)(o) of COPRA.
“Free” Medical Services Covered Under Consumer Protection Act
In the judgment rendered in the Indian Medical Association vs. VP Shantha, the court chose to consider a conventional approach for cases pertinent to ‘free medical care’. It differentiated between the following circumstances-
1.Services which are furnished free of cost to everyone availing them;
2.Services which must be availed by payment by everybody availing of them;
3. Services which are availed usually by payment, nonetheless, are made available free of cost to the persons who cannot afford to pay for them.
The Apex court in this landmark judgment found that services performed by doctors and hospitals which fall in the 2nd and 3rd category will be covered within the purview and definition of a “service” as defined in Section 2(1)(o) of COPRA. Hence, persons who avail free service are “beneficiaries” and as such are covered within the ambit of definition of “consumer” under Section 2(1)(d) of the Act.
Additionally, any forum investigating a case involving an issue of medical negligence in any jurisdiction must take into consideration at least the following 3 considerations before coming down to a decision. These are that:
- a legitimate and disciplinary method must be strictly inducted on firm, virtuous and scientific grounds.
- patients will be better satisfied if the actual causes of harm are correctly recognized and befittingly acted upon.
- numerous incidents include a contribution from more than 1 person, and it is more likely to hold accountable the last discernible element in the chain of causation and essentially accuse this person of holding the ‘smoking gun’.
Burden of Proof
The patient or relatives have the weight to prove to prove the negligence, except in the cases where relatives have no access, for instance in a nursery, intensive care unit, operation theatre, etc. Res ipsa loquitur is a state of gross negligence where things speak for themselves and henceforth there is no need to prove.
In Fardon v.Harcourt Rivington, the court set out the ‘reasonable man test’ for foreseeable ability. “If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of reasonable man, then there is no negligence in not having to take extraordinary precautions.”
A study demonstrated that the majority of cases are from:
- Surgery branches
In a writ petition, Mr. R Raheja vs. The Maharashtra Medical Council the HC of Bombay has delivered a landmark judgment that the patient or his legal heir have the opportunity to acquire copies of the entire medical record on payment of reasonable costs.
Defenses for Medical Negligence
There are several defenses which are available to a medical professional accused of medical malpractice which has been enumerated below-
- Known complications
- Difference of opinion
- Unexpected or unforeseen results
- Contributory negligence
- Emergency care
Where to seek Redressal
Consumer disputes redressal agencies which are commonly called as Consumer Forums or Consumer Courts have been formulated under the act at national, state and district level. In India, the COPRA, 1986 envisages 3-tier grievance redressal mechanisms:
- National Consumers Dispute Redressal Commission
- State Consumers Dispute Redressal Commission
- District Consumer Disputes Redressal Commission
There is a distinct time limit provided for the disposal of cases under the Act. A notice is sent to the respondent after the charge is registered. The respondent forcibly has to reply within a time period of 45 days, failing which ex parte hearing can be held. An appeal can be filed in the higher commission, inside 30 days from the date of the decision.
An appeal can be deposited before the State Commission against the decision of the district forum. An appellate jurisdiction has been provided with the National Commission for a further petition against the decision of the State Commission. Any verdict provided by the National Commission can be challenged in the Apex Court of India as well.
It is important to note that a total of 44,47,487 out of 48,85,877 cases have been disposed of since the inception of the Consumer Protection Forums all over the nation, seeming a disposal percentage of 91.03%.
How to File a Consumer Complaint?
- The grievance can easily be filed on a plain paper.
- There is no necessity of stamp paper for any declaration.
- The complaint should have all the items of the aggrieved party and the party against whom the complaint is being filed.
- The complainant can register the complaint, in person or through his/her authorized agent or by post to be conveyed to the Redressal Agency.
- Engaging a lawyer is not compulsory to file a case under COPRA.
- The fees charged will depend upon the amount of the claim and is generally low.
Where to File a Complaint?
As for the Consumer Protection Act, 1986 a complaint can be filed in:
- If the value of the claim is further than one crore – National Consumer Disputes Redressal Commission
- If the value of the claim is higher than 20 lakhs but is within one crore – State Consumer Disputes Redressal Commission
- If the value of the claim is of 20 lakh – District Consumer Disputes Redressal Forum
Fee for Filing Complaint
Every complaint filed shall be accompanied by a fee in the form of crossed Demand Draft drawn on a national bank or via a crossed Indian Postal Order drawn in favour of the Registrar of the State Commission and payable at the particular place where the State Commission or the National Commission is based.
Section 26 has been given to keep a check on the tendency of filing false and trivial or vexatious complaints. Wherever the Consumer Disputes Redressal Forum is convinced that the complainant had approached the Forum without adequate justification, and frivolously, it provides for the following actions to be taken:
- Dismissal of the frivolous complaints.
- Orders while rejecting the complaint that the complainant shall compensate the opposite party such costs, not surpassing ten thousand rupees, as may be specified in the order.
Impact of Consumer Protection Protection Act on Healthcare Services
Negative impact on the medical sector:
- Administration and direction of defensive medicines by doctors
- A rise in the cost of healthcare services
- Filing of frivolous lawsuits leading to needless litigation
Positive impact on the medical sector:
- Quick grievance redressal
- Quality of healthcare services has become better
- Education of medical practice
- Improvement in self-examination by the medical practitioners about their profession
Authored by: SIDHANT MALHOTRA
AMITY LAW SCHOOL, NOIDA