THE LEGAL AVENUES (other than CPA) AVAILABLE TO AGGRIEVED PATIENTS TO SUE AGAINST HEALTH PROFESSIONALS.
a) Medical Council of India and Dental Council of India.
b) Civil Courts.
c) MRTP (Monopolies and Restrictive Trade Practices Commission)
d) Public Interest Litigation.
e) Sections of Indian Penal Code, 1860
Regulation of The Practice of Medicine
a) Indian Medical Council Act,1956
Regulates the profession of Allopathic medicine by constituting Medical Council of India (MCI) and the State Medical Councils.
Authorizes the Medical Council of India (MCI) to recognize the medical qualifications granted by any Authority or Institution of India or other countries.
Authorized the MCI to maintain a register of medical practitioners to be known as the Indian Medical register, which consists of the entries of all the State Registers of medical practitioners.
Empowers the State Medical Councils to punish persons who falsely claim to be registered or misuse titles and when medicine is practiced by unregistered persons, with fine or imprisonment or both.
Authorizes the MCI to prescribe standards of professional conduct and etiquette or Code of Ethics for medical practitioners. The violations of these standards constitute infamous conduct (professional misconduct).
State Medical Councils are empowered to take disciplinary action when prescribed standards of professionals conduct and etiquette or Code of Ethics are not observed by the doctors and violations of which constitute professional misconduct / Infamous conduct.
Under the following circumstances, a doctor can be temporarily or permanently debarred from practicing medicine.
Improper or indecent conduct towards the patient
Conviction in a Court of Law
Failure or dereliction of duty in giving professional certificates, reports and other documents
Contravening the Drugs and Cosmetics Act, 1940
Selling scheduled poison
Performing or abetting an illegal operation
Receiving or giving commission or using touts
Employing unqualified persons
Associations with (drug) manufacturing firms
Running shops (dispensing chemists) etc.
Failure to give professional service for certain things on religious grounds.
An aggrieved patient can complain to the State Councils about a registered medical practitioner about an alleged wrong committed by him. The Council initiates proper hearing where the concerned doctor is given adequate opportunities to represent his side. If it arrives at the conclusion that the doctor has indeed committed an act, which involves an abuse of professional position that might reasonably by regarded as disgraceful or dishonourable by professional men of good repute and competence, the doctor is either given a warning notice or temporarily or permanently debars him for practicing medicine. The Council does not have any statutory powers to award any compensation to the aggrieved patient or legal heirs.
The Indian Medical Council Act, 1956 also provides certain privileges to all the registered medical practitioners.
Rights and Privileges of Registered Medical Practitioners Conferred by the Indian Medical Council Act, 1956.
Right to choose a patient
Right to add title, descriptions of the academic qualifications to the name
Right to practice medicine
Right to dispense medicines
Right to possess and supply dangerous drugs to the patients
Right to recovery of fees
Right for appointment to public and local hospitals
Right to issue medical certificates
Right to give evidence as an expert in a Court of Law
The aggrieved patients can file a case against the doctor for monetary compensation for which the patient to pay court fees that depends upon the compensation sought.
Probably, due to near acceptance of medical negligence as inevitable by the patients and their relatives or local settlements, not many cases have reached the apex court of law in the past.
The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act, 185536 and the Section 357 of Cr. P.C., 197337. But to avail it, an aggrieved patient have to wait for years and spend considerable amount of money on litigations.
The civil court cases take care the route of Sub-Court, District Court, High Court and Supreme Court.
Monopolies and Restrictive Trade Practices Act (MRTP), 1969
This Act is the precursor of CPA, 1986. Before the advent of CPA, this Act was the only resource to consumers against the unfair trade practices. The commission that looks into the disputes brought under MRTP Act based in New Delhi.
Public Interest Litigation (PIL)
An aggrieved patient can directly approach the High Court or the Supreme Court when his/her grievances was not properly redressed. PILs are usually resorted when public health programmes are not implemented properly. Some of the landmark judgements on Supreme Court on health are the result of PILs.
1Fatal Accidents Act, 1855
This has adopted the provisions of English Fatal Accidents Act of 1846 (re-enacted in 1976) with a little modification. This Act aims of providing compensation to the family of the deceased for loss occasioned by the death of a person caused by the actionable wrong. In fact, it does not specify its application to medical negligence cases but it is of wide import so as to apply to all such cases including road traffic accident cases. In Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godhole and An0ther (AIR 1969 SC 128) and Amalgamated Coal Field Ltd. v Mst. (Chhotibai & Others (1973) ACJ 365), this Act was used to award damages to the heirs of the deceased patients.
Section 1-A of Fatal Accidents Act, 1855
Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such, as would (if death had not ensured) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, not withstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
2 Section 357 of Code of Criminal Procedure 4973 (Act No. 2 of 1974)
(1) When a court imposes a sentence of fine a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment, order the whole or any part of the fine recovered to be applied.
(b) In the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the court recoverable by such person in a civil court;
(3) When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment, over the accused person to pay be way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for while the accused person has been so sentenced.