UNIT 3 – MEDICAL NEGLIGENCE AND LIABILITIES OF DOCTORS.pptx

this ppt is about the various kinds of liabilities faced by medical professionals including under the consumer protection law

1. UNIT 3 – MEDICAL NEGLIGENCE ; CPA, 2019 AND LIABILITIES OF A DOCTOR Ms. R.Yuvanaa Priyadharshini, SoL , SASTRA

2. MEDICAL NEGLIGENCE - DEFINITIONAL ASPECTS Negligence is simply the failure to exercise due care. The three ingredients of negligence are as follows: 1.The defendant owes a duty of care to the plaintiff.  2.The defendant has breached this duty of care .  3.The plaintiff has suffered an injury due to this breach.  Medical negligence is improper or unskilled treatment of the patient by a medical practitioner. Medical negligence is no different. It is only that in a medical negligence case, most often, the doctor is the defendant. The doctor/medical practitioner : Owes a DUTY OF CARE to the patient Has breached that duty Which has resulted in the injury of that patient

3. When does a duty arise?  It is well known that a doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-patient relationship is not established, the courts have imposed a duty upon the doctor. In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life” (Parmanand Kataria vs . Union of India). These cases are however, clearly restricted to situations where there is danger to the life of the person. Impliedly, therefore, in other circumstances the doctor does not owe a duty.  What is the duty owed?  The duty owed by a doctor towards his patient, in the words of the Supreme Court is to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care” (Laxman vs . Trimback ). The doctor, in other words, does not have to adhere to the highest or sink to the lowest degree of care and competence in the light of the circumstance. A doctor, therefore, does not have to ensure that every patient who comes to him is cured. He has to only ensure that he confers a reasonable degree of care and competence.

4. Reasonable degree of care  Reasonable degree of care and skill means that the degree of care and competence that an “ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question.” At this stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation. When does the liability arise?  The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.

5. Normally, the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘ res ipsa loquitur ’ (meaning thereby ‘the thing speaks for itself’) might come into play. The following are the necessary conditions of this principle.  1.Complete control rests with the doctor.  2.It is the general experience of mankind that the accident in question does not happen without negligence. This principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without negligence. In the absence of any such explanation, liability of the doctor arises.

6. When there is no liability  A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of judgment due to negligence.

7. LIABILITIES OF A DOCTOR 1. CIVIL LIABILITY :- The Supreme Court in  Indian Medical Association v. V.P. Shantha  [1995 SCC (6) 651]  included the medical profession as a ‘service’ under the Consumer Protection Act.  They held that a person seeking medical attention would be considered a “consumer”, based on the following criteria – The service provided was not free or for a nominal registration fee; If free, the charges were waived because of the patient’s inability to pay; The service was at a private hospital that charges all patients; or An insurance firm paid for the service rendered. Patients can file complaints against medical professionals for deficiency of service in the District, State and National Consumer Redressal Commissions.

8. 2. CRIMINAL LIABILITY :- What have the courts held regarding criminal liability arising out of medical negligence? The Supreme Court in  Jacob Mathew v. State of Punjab  [(2005) 6 SCC 1]  clarified that negligence differs in the case of civil and criminal law. While looking at medical negligence, the court cannot consider a simple lack of care, an error of judgment or an accident as negligence, if the doctor follows a practice that is the norm in the medical profession at the time. Merely because a better alternative course or method of treatment is available or simply because a more skilled doctor might adopt a different practice or procedure would also not amount to negligence. Also, failing to use extraordinary precautions that could prevent a particular event cannot be the standard for judging negligence. The Court further observed that to criminally prosecute a medical professional for negligence, it must be shown that they did something or failed to do something which any other medical professional in their ordinary sense and judgment would have done or failed to do.

9. Provisions under IPC:- According to Section 304-A of the Indian Penal Code, 1860, if a person commits a rash or negligent act which amounts to culpable homicide then the person will be punished with imprisonment for a term which may extend to two years or with fine or both. According to Section 337 of the Indian Penal Code, 1860, if a person commits a rash or negligent act due to which human life or personal safety of others gets threatened. The person will be punished with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or both. According to Section 338 of the Indian Penal Code, 1860, if a person commits a rash or negligent act due to which human life or personal safety of others gets threatened . The person will be punished with imprisonment for a term which may extend to two years or with imprisonment for a term which may extend to two years or with fine or both.

10. Defences under IPC :- Section 80 of the Indian Penal Code, 1860, says that anything which happens as a result of an accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense. Section 81 of the Indian Penal Code, 1860, states that if anything is done merely by the reason that it is likely to cause harm but if the same is done without any intention to cause harm and in good faith in order to avoid other damages to a person or his property is not an offense. Section 88 of the Indian Penal Code, 1860, says that no one can be made an accused of any offense if he performs an act in good faith for the good of other people and does not intend to cause harm even if there is a risk involved and the patient has given the consent explicitly or implicitly.

11. 3. CONTRACTUAL LIABILITY :- Liability of health professionals under the Contract Act1872 mainly depends on the express or implied terms agreed upon by the patient or his representatives and the doctor or hospital. \ Consent for treatment on payment of fees on the part of a patient can be treated as an implied contract with the doctor, who by undertaking treatment on acceptance of fees, promises to exercise proper care and skill. The Indian Contract Act, which came into force in 1872, contains detailed provisions with regard to offer, acceptance, proposal, vicarious liability etc. A detailed review and examination of the cases reveals that, though the provisions have a direct bearing on the services being provided by doctors and hospitals, it has very limited application to medical negligence. Thus, contractual liability is a part of civil liability of the doctors under the Consumer protection Act, 2019. In India, a doctor's liability to a patient is primarily contractual, established by the relationship for service under the Consumer Protection Act and the Indian Contract Act, implying an agreement where the doctor promises to provide care with proper skill and diligence in exchange for fees. Patients injured due to a deficiency in this contractual service can sue in consumer forums for compensation, as established by the Supreme Court in Indian Medical Association v. VP Shantha

12. CONSUMER PROTECTION ACT, 2019 AND  APPLICATION OF THE ACT TO THE MEDICAL  PROFESSIONALS INTRODUCTION :  The Consumer Protection Act (CPA) is a comprehensive legislation implemented in the year 1986 in India to promote and safeguard the concerns of consumers. The old Act has been repealed now and the new Consumer Protection Act, 2019 has come into effect, with necessary modifications catering to the ever-changing needs for the community and the consumers at large.  SCOPE AND AMBIT OF THE ACT:  All goods and services, including telecom and housing construction, and all modes of transactions (online, teleshopping, etc.) for consideration. Free and personal services are excluded. The Act adds three types of practices to the list, in addition to the already existing false representation, misleading advertisements, unfair trade practices, deficiency in services. They are failure to issue a bill or receipt; refusal to accept a good returned within 30 days; and disclosure of personal information given in confidence, unless required by law or in public interest. Contests/ lotteries may be notified as not falling under the ambit of unfair trade practices.

13. Claim for product liability can be made against manufacturer, service provider, and seller. Compensation can be obtained by proving one of the several specified conditions in the Act.  Unfair contracts are defined as contracts that cause significant change in consumer rights. It Lists six contract terms which may be held as unfair.  Act makes Consumer Protection Council’s advisory bodies for promotion and protection of consumer rights. Establishes CPCs at the District, State and National Level.  Establishes the Central Consumer Protection Authority (CCPA) to promote, protect, and enforce the rights of consumers as a class. CCPA may: issue safety notices; pass orders to recall goods, prevent unfair practices, and reimburse purchase price paid; and impose penalties for false and misleading advertisements.  Jurisdiction of the Consumer forum: District : Up to Rs one crore; State : Between Rs one crore and up to Rs 10 crore; National : above Rs 10 crore.

14. Composition of members:  District : Headed by a president and at least two members.  State : Headed by a president and at least four members.  National : Headed by a president and at least four members.  Central Government will appoint the members of the commission through notification.  Alternate dispute redressal mechanism: Mediation cells will be attached to the District, State, and National Commissions.  Penalties: If a person does not comply with orders of the Commissions, he may face imprisonment up to three years, or a fine not less than Rs 25,000 extendable to Rs one lakh, or both.  E commerce is included in ambit, which defines it as direct selling, e-commerce and electronic service provider. The central government may prescribe rules for preventing unfair trade practices in e-commerce and direct selling. Thus the 2019 Act expands the scope of the definition of Consumer so as to include the consumers involved in  online transactions and it now squarely covers the E-commerce businesses within its ambit. The 2019 Act has also  widened the definition of Unfair Trade Practices as compared to the 1986 Act which now includes within its ambit  online misleading advertisements; the practice of not issuing bill/memo for the goods and services; failing to take  back defective goods or deactivate defective services and refund the amount within the stipulated time mentioned in the bill or memo or within 30 days in the absence of such stipulation; and disclosing personal information of a  consumer unless such disclosure is in accordance with law. 

15. Other provisions of the Act can be analyzed elaborately as follows All service rendered to a patient by a medical practitioner is covered under the CPA except when the service is provided free of cost, especially in charitable or governmental dispensaries and hospitals, and primary health centers. If a patient or the relations of a patient feel that the suffering or death of a patient is because of either negligence by the concerned doctor or the health facility, they can complain to the Medical Council of India or to the Consumer Court. The Act covers all the medical practitioners and does not limit itself to the allopathic system in order to ensure accountability and keep a check on quackery by non-allopathic practitioners. Similar sorts of acts has even been implemented across the world and has shown encouraging results in the field of medical care   Despite the rise in the number of cases that are filed against medical practitioners since enforcement of the Act, a study has revealed poor awareness among the medical and dental professionals. Further, it has been observed that the quality of medical services offered to the ordinary man has also improved significantly since implementation of the act. Thus, there is an immense need to update the understanding about the Act among all the stakeholders - patient, doctors, and hospital management

16. Concept of Unfair Contract:    The 2019 Act has also introduced the concept of unfair contract. 'Unfair Contract' is defined under Section 2(46) and it refers to any contract between a consumer and a manufacturer or service provider or trader whose terms brings about a significant change in the consumer rights under the Act. These terms are namely such as:  1.requirement of excessive security deposits by the consumer in for facilitating the performance of obligations under the contract;  2.imposing penalty for breach of contract on the consumer which is not in proportion with the loss suffered due to such breach;  3.not accepting early debt repayment along with the applicable penalty;  4.allowing one of the parties to terminate the contract without any reasonable cause or unilaterally; 5.entitling one party to assign the contract to the detriment of the consumer and without his consent; 6.imposing unreasonable condition, obligation or charge on the consumer that puts him in a disadvantageous position;

17. Consumer Rights:  Under the Act, consumers have six main rights, which are listed as follows:  the right to be protected against the marketing of goods, products or services which are hazardous to life and property;  the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices; the right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;  the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate fora;  the right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and  the right to consumer awareness

18. E-Complaints:    Section 17 of the Act provides that a complaint regarding unfair trade practice, violation of consumer rights or misleading and false advertisements can be filed in electronic mode also to the District Collector, the Regional Office Commissioner or the Central Authority.  In spite of certain lacunas in the Act, the Consumer Protection Act, 2019 is a positive step towards development and reformation of consumer laws in the country. Sec 2(11) of the COPRA 2019 , defines " deficiency " as 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 and includes—  ( i ) any act of negligence or omission or commission by such person which causes loss or injury to the consumer;  and (ii) deliberate withholding of relevant information by such person to the consumer; How does adjudication of liability take place?  The process before the competent forum will be set in motion in the following manner. When the Complainant files a  written complaint, the forum, after admitting the complaint, sends a written notice to the opposite party asking for a  written version to be submitted within 30 days. Thereafter, subsequent to proper scrutiny, the forum would ask for either  filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature, and  judicial decisions. 

19. CASE LAWS Indian Medical Association v. Santha The Supreme Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient. In other words, doctor would guilty of negligent only when it is proved that he has fallen short of the standard of reasonable medical care. It is the risk of complaint to prove the negligence of the doctor. “Merely because the operation did not succeed, the doctor cannot be said to be negligent”.  Dr. Balram Prasad and other v. Dr. Kunal Shah and Others, This case, decided on October 24, 2013, Supreme Court of India awarded highest amount of compensation to the tune of Rs. 6 cores plus interest. As the case was pending for 15 years, even with simple interest of 6% will amount to another Rs. 6 cores, totaling to Rs. 12 cores as the amount of compensation for medical negligence due to which petitioner’s wife passed away, in this case hospital along with four other doctors had been held to be guilt of medical negligence. This amount gives and alarm to all medical professionals, hospitals, and their staff that they should be diligent and careful while treating patients.

20. Kusum Sharma v. Batra Hospital and Medical research Center and Other , In this case the court observed that, when the conduct of a medical practitioner, falls below the level of standards of reasonably competent medical practitioner in the same field they said medical practitioner would be liable for medical negligence, giving rise to deficiency in medical service in terms of section 2 (1) (g) of Consumer Protection Act.(of the repealed Act).  Marrin F. D’Souza v. Mohd. Ishfaq In this case court held that, the doctor and nursing homes need not be unduly alarmed, about the performance of their function. The law rules that and as long as doctor do their duty with reasonable care duty they will not held liable even if their treatment was unsuccessful. Rajinder Singh v. Batra Hospital and Medical Research Centre and Anr . 2000;(III) CPJ 558. As per the law, a defendant charged with negligence can escape liability, if he shows that he acted in accordance with the general and approved practice. It is not required in the discharge of his duty of care that he should use the highest degree of skill, since this may never be acquired. Even a deviation from normal professional practice is not necessary in all cases evident of negligence

21. Kidney Stone Center v. Khem Singh Alias Khem Chand The complainant Khem Singh alias Khem Chand was suffering from a stone in prostatic urethra. The Kidney Stone Center at Chandigarh promised to remove the stone without surgery on payment of Rs. 10,000/- by the complainant. The opposite party failed to remove the stone from the complainant’s prostatic urethra. The District Forum ordered the refund of fees of Rs. 10,000/- along with interest.  Laxmi Rajan v. Malar Hospital Ltd T he complainant a married woman aged 40 years, noticed development of a painful lump in her breast. She went to the opposite party hospital for examination, diagnosis and treatment. The lump had no effect on the uterus, but her uterus was removed without any justification. The complainant’s hope for child had thereby ended. It was held to be a case of deficiency in service on the part of the doctor, for which he was held liable to pay compensation of Rs. 2, 00,000/- to the complainant.

22. Geea Sapra v. Dr. B. L. Kapoor Memorial Hospital In this case where the ventilator in the hospital was not functioning due to which the patient died, the hospital was held liable to pay compensation for death. Two separate claims of medical negligence and deficiency in service held to be maintainable.   Indrani Bhattacharjee v. Chief Medical Officer and Other In this case, where ECG of the patient was not found normal, failure of the doctor in advising the patient to consult cardiologist and to reduce smoking and drinking, instead giving him medicines for gastric trouble etc. amount to glaring deficiency in service.

23. CONCLUSION Consumer Protection Act, 2019 when compared with the 1986 Act shows, that it provides for greater protection of consumer interests taking into consideration the current age of digitization. The 2019 Act also deals with the technological advancements in the industry, provides for easier filing of complaints and also imposes strict liability on businesses including endorsers for violating the interest of the consumers. However, the test of time will prove the fate of the 2019 Act as and when it is notified by the Central Government, which, prima-facie, appears to be much more consumer-friendly than the 1986 Act and also includes the current industry trends of e-commerce.   The Consumer Protection Act, protect the interest of the consumers. It provides simplified procedure for resolving the consumer’s grievances. Through this Act consumers can protect their interest against deficiency in services. This Act provides a forum to the victims of negligence or deficiency in medical services by providing cheap, speedy and efficacious remedy. The judges observed that the legal system has to do justice to both patients and doctors. And the fear of medical professionals should be taken into consideration balancing the legitimate claims of the patients too.

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