24September2018

Andaman Chronicle

The Daily Diary of the Islands

Doctors Answerable By Law!

Just last week, the National Consumer Dispute Commission observed a doctor can be booked for medical negligence even if the situation doesn’t turn life threatening but reasonable degree of care is not taken while deciding on the course of treatment or while treating the patient. It’s finally happened. The once-equated-to-God doctor saab today falls squarely in the ambit of the Consumer Protection Act (1986). Today, a medical practitioner’s act of negligence or oversight can be examined in the purview of the Consumer Protection Act and relief can be obtained for any loss incurred. Not that there wasn’t a law to help address issues as such. It’s just that the going’s become a lot smoother for the patient who can obtain relief and avail justice without the usually long-winded legal tangle and can completely avoid courts, lawyers and all-related bother.

BY LAW: According to the Act, a Consumer is “any person who hires or avails of any services for a consideration, and includes any beneficiary of such service other than the person who hires or avails of the service, when such services are availed of with the approval of the first mentioned person.”

Service means “service of any description which is made available to the potential users, but does not include rendering of any service free of charge or under a contract of personal service.”

And, Deficiency “means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

It was following the landmark judgement in the Indian Medical Association vs V. P. Shanta that the Supreme Court of India laid down the law relating to professional negligence under Consumer Protection Act, 1986 and enunciated certain principles under which medical practitioners, government hospitals and private hospitals and nursing homes are covered under the consumer law.

DOCTORING PROFITS: Today, a lot of medical practitioners face flak for putting patients through undue tests and examinations as well as opting for surgical intervention even when not necessary. The reason being, doctors make a quick buck through commissions paid to them through chemists, laboratories, technicians and specialists for referrals. And, when there is a profit-motive involved in the practice, it makes for perfect sense to rope them into the Consumer Protection Act that aims to protect the consumer patient.

LONG-WINDED RELIEF: Usually, in the absence of the Consumer Protection Act, it was the Indian Penal Code’s Section 304-A that provided the relevant provision under which a complaint against a medical practitioner for alleged criminal medical negligence could be registered. Section 304-A provides that whoever commits culpable homicide not amounting to murder shall be punished for life or imprisonment for a term up to 10 years and fine as well. 

Also, Section 337 of the IPC deals with hurt caused by an act endangering life or personal safety of others.  And, Section 338 of the IPC relates to grievous hurt by an act endangering life and personal liberty of others. However, lack of care attracts only civil liability.  Therefore, only civil negligence may not be enough to hold a medical professional criminally liable.

HOLDING DOCTORS LIABLE: Doctors can be held responsible for:

* Liability in respect of diagnosis;

* Liability in relation to doctor’s duty to warn the patient about the risks involved, and

* Liability in relation to the treatment to be carried out.35

The Supreme Court held that the duty of a doctor will include (a) a duty of care in deciding whether to undertake a case and (b) a duty of care in deciding what treatment to give or a duty of care in administration of that treatment. Any breach of these duties gives a rise of action for negligent acts towards the patient.

BREACH OF ‘DUTY OF CARE’: The laws of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established, the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore, a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred.

The Supreme Court of India in a classic judgment said that in every mishap or death during medical treatment, the medical man cannot be made criminally liable for punishment. In the absence of adequate medical opinion, putting guilt on the medical man would be doing great harm or disservice to the medical community at large. “Every mishap or misfortune in the hospital or clinic of a doctor is not a gross act of negligence to try him for an offence of culpable negligence.”

The rights available to patients are basically indirect rights which arise from the performance of duties of health care professionals. However, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 does provide some safety and rights to patients. Sadly, the basic rights such as right to correct information about his condition, right to participate in treatment decisions, right to have discussion with the doctor(s) are relegated to textbooks and treatises instead of actual practice.

- By Gajanan Khergamker

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