Amplitude Of Medical Negligence Liability Of The Government Hospitals Under The Consumers Protection Act, 1986: A Critical Analysis Of Provisions And Ground Realities
Amplitude Of Medical Negligence Liability Of The Government Hospitals Under The Consumers Protection Act, 1986: A Critical Analysis Of Provisions And Ground Realities
INTRODUCTION:
On 31 Jan 2009, five new born babies were killed and one injured when a fire broke out at a government hospital in Patiala (Punjab). It is believed that a short circuit triggered the fire. The fire began in an incubator at around 0330 hrs. Five infants kept in the incubator were burnt alive. Four other children, undergoing treatment in the same ward, were rescued.1 . These are few instances which have been reported in media. Why people hesitate to visit the government hospitals even though the services are provided free of cost? It is mainly due to the conditions that have been prevailing in these hospitals such as the scarcity of medicines and doctors and risk involved. The Central Government as well as the State Governments have been allocating thousands of crores of rupees on medical services provided at various levels in states and union territories. Valuable resources of the nation are invested in these hospitals but the ground reality depicts a shoddy picture of the services provided at these hospitals. This paper would focus on the existing ground realities and judicial trends pertaining to the liability of medical professionals employed at government hospitals, under the Consumers Protection Act, 1986.
THE CONSTITUTIONAL SAFE GUARD OF MEDICAL CARE IN INDIA
The Directive Principles of State Policy under the Constitution of Indie require the state to make effective provision for public health, and for just and humane conditions of work. It is the primary duty of the state to raise the level of nutrition, the standard of living of its people and the improvement of public health. The Constitution of India, 1950, Arts 42 and 47 indicate that government had become conscious of this modern phenomenon and this provision may serve the function of providing a constitutional footing for further legislative and administrative action. InParamanand Katara vs. Union of India2 the Supreme Court of India has declared that the right to medical aid is an integral part of right to life. It is an obligation on the state to preserve life by extending required medical assistance. In fact, the apex court has held that right to health and medical care is a fundamental right under the Constitution of India, 1950. The Supreme Court in State of West Bengal vs. Paschim Bangal Khet Mazdoor Samity3 has held that providing adequate medical facilities for the people is an essential part of the obligation undertaken by the government in a welfare state. The Constitution of India 1950 under Article 21 imposes an obligation on the state to safeguard the right to life of every person and breach of which may enable him to move the Supreme Court on high court through writ petition.
CONCEPTUALIZATION OF THE TERM PROFESSIONAL NEGLIGENCE
Professionals such as doctors, lawyers, architects and others are included in the category of persons professing special skill. Any reasonable man practicing a profession requires particular level of learning and impliedly assures the person dealing with him that he possesses such requisite qualifications and that he will profess his skill with reasonable degree of care and caution. It follows that a professional man should command corpus of knowledge of the profession he is practicing. He should not lag behind other intelligent members of his profession in knowledge of new advances. He should be alert to the hazard and risk in any professional task he undertakes. He must bring to any professional task he undertakes expertise, skill and care similar to other ordinary members of his profession, but need bring no more. The standard is that of the reasonable average. He need not possess the highest nor a very low degree of care and competence. A person is not liable in negligence because someone of greater skill and knowledge would have prescribed different treatment or operated in a different way, nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art. The medical practitioner is liable only if his conduct fell below that of the standard of a reasonable competent practitioner in his field.
The Supreme Court in the leading case of Jacob Mathew v. State of Punjab and Anr4 has interpreted the term negligence. The Supreme Court observed that “A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence”.
“Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. ...the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort”.5
The House of Lords in the Hedley Byrne & Co Ltd v Heller & Partners Ltd6 created the rule of "reasonable reliance" by the claimant on the skills of the defendant. The House analyzed the duty to take care as an integral part of the term negligence. Lord Morris observed that “Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise."
MEDICAL NEGLIGENCE LIABILITY UNDER CIVIL LAW CRIMINAL LAW
Civil Law
There are two types of negligence, civil and criminal. A civil negligence lawsuit involves private individuals suing someone for a negligent act that violates their private rights. Civil negligence generally involves careless or ignorant behavior but not intent, e.g., carelessly ramming a car stopped at an intersection. Criminal negligence is more serious and involves committing a crime against society and intending to commit it. Criminal cases arise in which the local legal authorities charge a person with an offense under the criminal code, e.g., manslaughter. Criminal negligence involves wanton disregard for the safety or lives of others. Both civil and criminal cases may result from a single act of negligence.
Negligence in the medical world has assumed great importance in relation to the medical malpractices suits in various countries in Asia, Europe, and USA. In India damages may be claimed against the doctor before the Civil Court in case of negligence under the law of torts7. The Bolam Test which was evolved in Bolam vs. Friern Hospital Management Committee8 is widely accepted as decisive of the standard of care required by professionals and medical professionals in particular. It has been invariably cited with approval before courts in India and applied to as touchstone to test of pleas of medical negligence. Bolam test requires a professional that: (1) he must command the corpus of knowledge and not lag behind other assiduous members of his profession; (2) he must have such an awareness as an ordinarily competent practitioner would have of deficiencies of his knowledge and the limitations of his skill; and (3) he must be alert of the hazards and risks in any professional task he undertakes to the extent that other members of same profession.
The Supreme Court in Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr9 held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor no doubt has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
Criminal Law
Doctors employed at government hospitals may be prosecuted for criminal negligence, under section 304A10, section 33611, 33712, and 33813 of the Indian Penal Code 1861. The Supreme Court14 has pointed out that liability in civil law is based upon the amount of damages incurred; in criminal law, the amount and degree of negligence is a factor in determining liability. In Syad Akbar vs. State of Karnataka15 the Supreme Court has pointed with reasons with the distinction between negligence in civil and criminal proceedings, namely, the proof in civil case mere balance of probabilities is sufficient while in criminal case proof beyond reasonable doubt is required. Negligence must be gross not an error of judgment in both the cases.. It has been observed that the Criminal Courts as well as Civil Courts in India have failed to provide speedy and economical justice.
The criminal law has invariably placed the medical professionals on a pedestal different from ordinary mortals. The Indian Penal Code enacted as far back as in the year 1860 sets out a few vocal examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person's benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm. There are four exceptions listed in the Section which is not necessary in this context to deal with. Section 93 saves from criminality certain communications made in good faith.
The Supreme Court in the case of Jacob Mathew Vs. State of Punjab and Anr16 opined that “We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainants prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against”.
DIFFICULTIES IN DEFINING CRIMINAL NEGLIGENCE
In tort it is an amount of damage which is an issue but in criminal law it is the amount of degree of negligence that determines the liability. The degree of negligence has to be higher than that in civil law. Criminal negligence is “Gross & Culpable Neglect or failure” to exercise reasonable and proper care to guard against injury when it was the imperative duty of the accused person to adopt. The feature of grossness or degree those assume significance in negligence punishable is a crime where the negligence has to be gross or of a very high degree. Cases of criminal negligence arise from acts or omissions if the accused was under a legal duty to do the omitted act. To meet the standard for criminal negligence, the act or omission must show a wanton or reckless disregard for the lives or safety of other persons.
Lord Atkin in Andrews v. Director of Public Prosecutions17, stated, "Simple lack of care -- such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases.
The law laid down in John Oni Akerele v. The King18 by the House of Lords, has been accepted by the Indian Supreme Court in Jacob Methew Case19.Their Lordships have held:-
(i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.;
(ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation.... There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime.
(iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion....The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck."
JUDICIAL TRENDS ON MEDICAL NEGLIGENCE LIABILITY OF GOVERNMENT HOSPITALS
The Consumers Protection Act 1986 has been enacted to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith. Section 2 (o) of the Act has defined the term services20. Certain services like as free services are excluded from the ambit of the Act. The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 provides that a doctor is under obligation to take care of patients. The basic principle is that medical doctors and associated medical professionals are responsible and liable for wrongs and failures in the performance of their medical duties towards patients
The Supreme Court in landmark decision of Indian Medical Association Vs. V.P. Shantha and Ors21 has analysed the scope of medical services provided at private and government hospitals under the Consumers Protection Act, 1986. The Court observed that the medical practitioners, Government Hospitals /nursing homes and private hospitals/nursing homes (hereinafter called "doctors and hospitals ") broadly fall in three categories:
(i) where services are rendered free of charge to everybody availing the said services,
(ii) where charges are required to be paid by everybody availing the services, and
(iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.
The Supreme Court held that where services are rendered free of charge to everybody availing the services, The medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1)(o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o),
“The Government Hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government Hospitals differently. We are of the view that in such a situation the persons belonging to "poor class" who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the "paying class". The Court observed that the service rendered by the doctors and Hospitals falling in category (iii) irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression "service" as defined in Section2(1)(o) of the Act and the persons who are rendered free service are the "beneficiaries" and as such come within the definition of "consumer" under Section 2(1)(d) of the Act,”
The Supreme Court finally held that the “doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2(1)(o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. Category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients, The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1)(o) of the Act”. The tax paid by the person availing the service at a Government hospital cannot be treated as a consideration or charge for the service rendered at the said hospital and such service though rendered free of charge does not cease to be so because the person availing the service happens to be a tax payer.”
FINAL THOUGHTS
More than 25% of Indian population living below poverty line does not have any access to any medical facility, but to the government hospitals. The government hospitals have failed miserably to cater to the needs of general public.It is proved beyond doubt that Criminal as well as Civil courts in India due to complex and prolonged procedures have failed to provide speedy and economical justice to unprivileged and down trodden people of society. The Supreme Court of India in Guru Nank Foundation Vs Rattan Singh & Sons22 and the Trustee of the Port of Madras Vs Engineering Construction Corporation Ltd23, held that interminable, time consuming, complex and expensive court procedures impelled jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to Alternative Dispute Resolution. The Forums and Commissions constituted under the Consumers Protection Act, 1986 provide less formal mechanism and that is also capable of providing speedy and economical justice to general public. It is strongly recommended that the services provided at the government hospitals should be brought within the ambit of the services under the Consumers Protection Act, 1986, in order to ensure the accountability and promote sense of responsibility among the personnel who are employed in these hospitals to look after the welfare of general public and restore the faith of general public in these institutions.
1 Times of India 1st Feb 2009, ; similar kind of incidents had happened in Delhi where A five-day old baby girl was burnt to death as the incubator she had been kept in caught fire at a Delhi Government hospital. The incident took place at the Bhagwan Mahavir Hospital in Pitampura around 2.30 am on 11 March 2008. Hospital authorities attributed the incubator fire to a short-circuit. By the time an alarm was raised, fire had engulfed the incubator and the newborn was dead.
4 2005CriLJ3710
5 Ibid
6 (1964) AC 465
7 Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.
9 [1969]1SCR206
10 Section 304A of the Indian Penal Code of 1860 states that whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine, or with both
11 336. Act endangering life or personal safety of others Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.
12 337. Causing hurt by act endangering life or personal safety of others Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
13 338. Causing grievous hurt by act endangering life or personal safety of others Whoever causes grievous hurt to any person to doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
14 State of Haryana vs. Smt. Santra , AIR 2000 SC 3335
16 AIR2005SC3180
17 [1937] A.C. 576
18 AIR 1943 PC 72; A duly qualified medical practitioner gave to his patient the injection of Sobita which consisted of sodium bismuth tart rate as given in the British Pharmacopoea. However, what was administered was an overdose of Sobita. The patient died. The doctor was accused of manslaughter, reckless and negligent act. He was convicted. The matter reached in appeal before the House of Lords. Their Lordships quashed the conviction
19 AIR2005SC3180
20 "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 6[housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
22 1981, 4 SCC 634
23 1995,4 Scale, 742
Total shows: 558
Author: Dr. Jeet Singh Mann, Asstt. Professor (Law) National Law University, Delhi
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