Public Health and Medical Infrastructure in India is highly prone to malpractices. The over-burden of the population coupled with a lack o...
Public Health and Medical Infrastructure in India is highly prone to
malpractices. The over-burden of the population coupled with a lack of awareness and
illiteracy leaves a citizen vulnerable. Medical Negligence is a serious cause
of concern as it can lead to a patient’s death and cause grievous injury.
Indian law is not patient-centric when it comes to medical
negligence. Proving medical negligence is not easy and often requires acute
medical expertise to prove that the Doctor administered the wrong drug or
scalpel, and the long medical bills have overpriced sanitizers and injections.
But, fortunately, Medical practice in India is fairly regulated through various
nodal bodies set up by the Government of India. These bodies have a clear set of
rules, protocols, and procedures that must be followed in every hospital and
clinic. Medical negligence can lead to very minor as well as very consequences
such as the death of the patient. Therefore, medical negligence can be categorized
as a cause of action under Torts, Civil Law, Criminal law as well as Consumer
law. The categorization depends on the nature of the consequences that followed. In
this article, we will help you to understand when a claim under the Consumer
Protection Act can be filed for medical negligence and the important legal
aspects to keep in mind.
What is Medical Negligence?
In order to establish medical negligence, we must understand the legal
object behind the concept of Medical Negligence. A mentioned earlier, every
medical practice and every medical practitioner is subjected to a certain
degree of ethics, professionalism, regulations, and protocols. These can be
commonly termed as medical standards. Breach of these medical standards gives
rise to patient’s rights, who in this case would be the consumer of medical
services.
In general, the common law principles related to negligence, breach of trust, and vitiated consent (also called the absence of informed consent) come into play. In other words, carelessness, recklessness, or negligence is against medical standards in general. The degree of care in medical cases is precise and higher than day-to-day standards. The reason is two-fold:
a. Even a small act of negligence can lead to loss of life or grievous injury.
b. Any malpractice (such as overcharging on medical-bill) seriously undermines the Right to Health, which is an essential part of Article 21 of the Constitution – Right to Life and liberty.
Simply put, medical negligence can be defined as the improper or unskilled
treatment of a patient by a medical practitioner. This can include various
kinds of negligence such as active, passive, non-consensual, collateral,
comparative, concurrent, continued, criminal, gross, hazardous, willful,
reckless, or negligence per se. When a medical practitioner fails to exercise
due care and pay proper attention, he is said to be negligent. The three
aspects of negligence are:
a. The defendant owes a duty of care to the plaintiff.
b. The defendant has breached this duty of care.
c. The plaintiff has suffered an injury or material loss due to this breach.
In Parmanand Kataria v. Union of India, the Supreme Court stated that
every doctor at any hospital, whether government or not, has a professional
obligation to extend his services with due expertise for protecting life. This
doesn't mean that the doctor must be able to cure every patient that comes to
him. However, he must apply a reasonable degree of care and expertise.
Therefore, a doctor lying about his expertise can be held guilty of medical
negligence. The phrase degree of care would also depend on the competence of
the doctor. However, the standard of reasonable care remains the same
throughout.
Informed Consent:
Informed consent is another crucial aspect of medical standards. A
patient must be fully apprised of the consequences and effects of a medical
procedure. Once the patient consents to the medical procedure after being
informed completely, only then the said medical procedure can be administered.
Establishing Liability:
Any injury or loss resulting from a breach of reasonable care is liable to
be compensated for. However, injury or loss must directly flow from the
actions of the medical practitioner. The petitioner must establish a proper
link between the injury and the cause (lack of reasonable care). Simply put,
you cannot file a case in consumer court against a medical practitioner because
their treatment was unsuccessful or had an unwanted side-effect (which was not
a probable outcome, such as, deafness, blindness, etc.)
Thus, the burden of proof on the complainant is always extra-ordinary. A mere allegation will not make a case of negligence unless it is proved by
reliable evidence and is supported by expert evidence. The commission cannot
constitute itself into an expert body and contradict the statement of the
doctor unless there is something contrary on the record by way of an expert
opinion or there is any medical treatise on which reliance could be based. Thus,
it is for the patient to establish a case against the medical professional and
not for the medical professional to prove that he acted with sufficient or
reasonable care and skill.
The burden of proof will rest on the defendant (medical practitioner) when the doctor was solely responsible for the treatment and in general, the procedure is so small or well-established that nothing has ever gone wrong. This is a principle of torts, namely, res ipsa loquitur’ (‘the thing speaks for itself’).
Consumer Protection Act &
Medical Negligence
The Hon'ble Supreme Court of India held in Indian Medical Association v. V.P. Shantha that medical professionals and services fall within the purview of Consumer Protection Act. A Medical Professional provides services as per section 2(1)(o). However, medical services provided as part of charity or free of charge will not fall within the purview of services rendered. However, in hospitals where a certain category of patients are treated free of charge fall within the ambit of COPRA.
Section 2(1)(o) of the Consumer Protection Act defines the ‘deficiency
of service’ which means any fault, imperfection, etc. in the quality or manner
of performance that is required to be maintained by or under any law or it has
been undertaken to be performed by a person in pursuance of a contract or
otherwise.
According to the Consumer Protection Act, 1986, the consumer is anyone who:
- Buys any goods or hires any services.
- Uses the goods or hires any service with the approval of any buyer or the service provider.
- Uses the goods and services to earn a livelihood.
An aggrieved consumer
may file a complaint in the Consumer Court. The facts of the case may vary from
person to person.
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