LANDMARK CASE

Dr. K. Mathiharan (Consultant Legal Medicine)
Institute of Legal Medicine
53/27, 5th Street, Padmanabha Nagar, 
Adayar,
Chennai - 600 020

The NCDRC’s order did not accept the claim of medical professionals who argued that the doctor-patient relationship is similar to master – servant relationship, which is a contract of personal service that should be exempted from CPA. But the NCDRC’s order decreed that the doctor – patient relationship is a contract for personal service and it is not master – servant relationship. It is also said that the doctor is an independent contractor and the doctor, like the servant, is hired to perform a specific task. However, the master or principal (the hirer) is allowed to direct only what is to be done, and done, and when. The ‘how’ is left up to the specific discretion of the independent contractor (doctor). So, the doctor-patient relationship is a contract for personal service and as such, cannot be excluded from CPA.Highlights of the Supreme Court of India judgment in
                                                   Indian Medical Association

                                                                   Vs

                                                   V.P. Shantha and Others 


As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals under this Section:

1. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
2. Private hospitals charging all patients.
3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.

It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to all patients.

Further, this judgment concedes that the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the complainant can be asked to approach the civil courts.

Also, this judgment says that the deficiency in service means only negligence in a medical negligence case and it would be determined under CPA by applying the same test as is applied in an action for damages for negligence in a civil court.

As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and the independent medical / dental practitioners except primary health centers, birth control measures, anti malaria drive and other such welfare activities can be sued under the CPA.

Structure of Consumer Forums / Commissions and Their Jurisdictions

Structure of Consumer Forums / Commissions and Their JurisdictionsThe maximum time limit for a claim to be filed under CPA is 2 years from the date of occurrence of the cause of action. There is no court fees to be paid to file a complaint in a Consumer Forum / Commission. Further, a complainant/opposite party can present his case on his own without the help of a lawyer.

As per the Consumer Protection Rules, 1987, a complaint filed in the Consumer Forum / Commission shall be adjudicated, within a period of 90 days from the date of notice by opposite party and within 150 days if it requires analysis or testing of commodities.

Regulation of The Practice of Medicine

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.

1. Improper or indecent conduct towards the patient
2. Conviction in a Court of Law
3. Failure or dereliction of duty in giving professional certificates, reports and other documents
4. Contravening the Drugs and Cosmetics Act, 1940
5. Selling scheduled poison
6. Performing or abetting an illegal operation
7. Receiving or giving commission or using touts
8. Employing unqualified persons
9. Associations with (drug) manufacturing firms
10.Advertisements
11.Running shops (dispensing chemists) etc.
12.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.

1. Right to choose a patient
2. Right to add title, descriptions of the academic qualifications to the name
3. Right to practice medicine
4. Right to dispense medicines
5. Right to possess and supply dangerous drugs to the patients
6. Right to recovery of fees
7. Right for appointment to public and local hospitals
8. Right to issue medical certificates
9. Right to give evidence as an expert in a Court of Law

Civil Courts

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.

Indian Penal Code and Medical Negligence 

Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpraxis in India.

A physician can be charged with criminal negligence when a patient dies from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross negligence. Before the administration of anaesthesia or performance of an operation, the medical man is expected to follow the accepted precautions.

In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is, however, not liable for an error judgment. The law expects a duly qualified physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cures.

It has long been recognized that criminal liability of a physician may result from a high degree of negligent conduct. What the law calls criminal negligence is largely a matter of degree; it is incapable of a precise definition. To prove whether or not it exists is like chasing a mirage. It requires that any of the following to be established in a case of criminal medical negligence.

“Gross Lack of competency or gross inattention, or wanton indifferences to the patient’s safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient.” (Hampton v State 38; State v Lester)

In R. v Bateman (1925), Dr. Bateman was prosecuted for manslaughter and the charges of negligence made against him were:
i) Causing the internal ruptures in performing the operations of ‘version’;
ii) Removing part of the uterus along with the placenta;
iii) Delay in sending the patient to the infirmary.

The trial court convicted him. But the Court of Appeal held: “ ….. in order to establish criminal liability, the facts must be such that, …. the negligence of the accused went beyond a mere matter of compensation between subjects and should such disregard for the life and safety of others as to amount to a crime against the state and conduct punishment.”

When a FIR (First Information Report) is filed against a doctor for the death of a patient who was under his treatment, under this Indian Penal Code Section 304-A the doctor can be arrested. A doctor charged under this section can obtain bail and if proved guilty, the doctor can be punished with a maximum of two years imprisonment or fine or both. But, if the patient is alive, the doctor is charged under the Indian Penal Code Section 337 and 33843.

The Indian Courts have been very careful not to hold qualified physicians criminally (instances of quacks for criminal negligence are there) liable for patients’ deaths that are the result of a mere mistake of judgment in the selection and application of remedies and when the death resulted merely from an error of judgment or an inadvertent death.

RELATED CASES

The complainant alleged that her husband died due to the complications arising after kidney biopsy. The State Commission held that the complainant had suppressed the crucial facts in her complaint. Besides serious life threatening diseases, the deceased was already suffering from tuberculosis and staphylococcus aureus septicaemia (a serious infection of the blood by bacteria). These are very serious diseases with a very high mortality rate especially when the heart, lung and brain get infected. Hence, the complainant had not come with clean hands and thus disentitled herself to relief under this jurisdiction of the C.P. Act. Complaint dismissed with Rs. 1,500/- as costs (SUBH LATA v. CHRISTIAN MEDICAL COLLEGE (Punjab SCDRC O.C. No. 14 of 1994 decided on 15.6.1994; 1994 (2) CPR 691; 1995 (1) CPJ 365; 1995 CCJ 512

The complainant’s 18-year-old son was suffering from chronic renal failure and was advised renal transplantation. He was admitted in the hospital and dialysis was done for which a venous catheter was introduced in the right thigh and kept in situ (same position of the body) as he would require frequent dialysis. But due to lack of proper care like frequent dressing and medical attention, this site developed pus formation leading to A.V. Fistula, which resulted in gangrene of the right leg. In order to save the life of the patient, amputation of the leg was necessary. The patient died after 20 days. The opposite did not appear in the State Commission. The case was decided in favour of the complainant on the basis of the affidavits filed by the complainant and another experienced doctor who testified in favour of the complainant. A compensation of Rs. 2,00,000/- with Rs. 1,000/- as costs to be paid by the opposite party within 30 days from the receipt of this letter, failing which the amount shall carry interest at the rate of 18% per annum till realization. SHIVAJI GENDEO CHAVAN v. CHIEF DIRECTOR, WANLESS HOSPITAL & Anr. (Maharashtra SCDRC Complaint No. 451 of 1993 3.12.1994 (3) CPJ 43)

The complainant was operated for gallstones but subsequently he developed structure near the bulbous urethra due to which he could enjoy sex and could not pass urine easily. He ultimately had to be operated at a Urological Hospital for relief and heavy amount had to be spent due to negligent performance of his first operation. The State Commission observed as under and the complaint was dismissed. There is absolutely no evidence to establish that there was any negligence on the art of the opponent in performing the operation on July 30,1992 and that it was a result of such negligence that second operation became necessary. First operation was on account of multiple gallstones whereas the second operation became operation became necessary. First operation was on account of small strictures near bulbous urethra. Connection between the two operations has not been established. In other words, it is not proved that the second operation became necessary on account of negligence in the performance of the first operation. There is no certificate of the doctor of the urological hospital at Nadiad wherein it is alleged to have been stated that the second operation became necessary on account of the first operation on record. In the absence of any expert evidence, we cannot hold the opponent who has stated that he had performed the operation on the complainant carefully and that the complainant had not complained of pain when he was discharged from the hospital and thereafter. There is also some force in the opponent’s submissions that if the complainant was suffering from intense pain as alleged by him, he would not have waited for seven months to consult Dr. Rajguru. There is nothing in the documentary evidence placed on record, which would support the allegations made by the complainant. The complaint dismissed without costs. JAYANTILAL GOVINDALAL PARMAR v. MANAGING TRUSTEE & Ors. (1997 (1) CPJ 295:1997 (2) CPR 9 (Gujarat SCDRC)

The complainant was admitted in a private hospital for pain in the neck on the right shoulder. Investigations reveled that he was a diabetic and had right hydronephrosis with obstruction at right uretrovesical junction. The complainant underwent surgery by retroperitoneal approach. The affected portion of the ureter was removed and uretric reimplantation was done. During the postoperative period, the complainant developed high fever and further investigations showed that a stapler pin was seen in the gastrointestinal tract. The complainant got discharged against medical advice. The allegation was that the pin was left there during the operation. The surgeon stated that the surgical staplers are V or U shaped and used in clusters in surgeries involving large intestine. The stapler pin seen in the x-ray is not a stapler pin. It resembles the stapler pins used un food pockets. Evidently, this stapler pin should have been swallowed. The State Commission held that there is no negligence or deficiency of service on the part of the hospital and dismissed the complaint without costs. C.J. LAWRENCE v. APOLLO HOSPITALS (Tamilnadu SCDRC O.P. No. 8/94 Decided on 05.08.1998).