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

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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. 

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This research paper was presented at the National Level Seminar cum workshop on “Medical Negligence and consumer protection” conducted by the National Law University Jodhpur , Rajasthan on 21 Feb 2009

1 Times of India 1^st 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.

2 AIR 1989 SC 2039

3 AIR 1996 SC 2426

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.

8 1957 INDLAW QBD 53

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

15 (1980) SCC (1) 30

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;

21 AIR 1996 SC 550

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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Consumer Protection Act and Medical Profession. Module 4

Consumer Protection Act and Medical Profession

Doctor - Patient Relationship

http://www.medindia.net/indian_health_act/consumer_protection_act_and_medical_profession_doctor_patient_relationship.htm

Since the ancient times, certain duties and responsibilities have been cast on persons who adopt the sacred profession as exemplified by Charak’s Oath ( 1000 B.C.) and Hippocratic Oath ( 460 B.C.). In order to understand the complexities of the doctor-patient relationship it is necessary to know about the Duties and Obligations of a Doctor, Doctor-Patient contract and what constitutes Professional Negligence.

Prerequisites of Medical Practice

A duly qualified medical professional, i.e. a doctor has a right to seek to practice medicine, surgery and dentistry by registering himself with the Medical Council of the State of which he is a resident, by following the procedure as prescribed under the Medical Act of the State.

The State Medical Council has the power to warn, refuse to register / remove from register the name of the doctor who has been sentenced by any court for any non-bailable offence or found to be guilty of infamous conduct in any professional respect. The State Medical Council has also the power to re-enter the name of the doctor in the register.

The provisions regarding offences and professional misconduct which may be brought before the appropriate Medical Council (State/Medical Council of India ) have been stated in the Code of Medical Ethics formulated by the Medical Council of India.

The appropriate Medical Councils are empowered to award such punishment as deemed necessary or direct the removal of the name of the delinquent registered practitioner from the register either permanently or for a specified period, if he has been found guilty of serious professional misconduct. No action against a medical practitioner can be taken unless an opportunity has been given to him to be heard in person or through an advocate.

Duties and Obligations of a Doctor

Duties and obligations of doctors are enlisted in ordinary laws of the land and various Codes of Medical Ethics and Declarations - Indian and International, which are :

(i) Code of Medical Ethics of Medical Council of India ;

(ii) Hippocratic Oath ;

(iii) Declaration of Geneva ;

(iv) Declaration of Helsinki;

(v) International Code of Medical Ethics ;

(vi) Government of India Guidelines for Sterilization.

These Codes and Declarations are being printed in the Appendices. On the basis of these various Codes of Ethics and Declarations, the duties can be summarised as under -

1. Duties to Patient.
2. Duties to Public.
3. Duties towards Law Enforcers.
4. Duties not to violate Professional Ethics.
5. Duties not to do anything illegal or hide illegal acts.
6. Duties to each other.

1.Duties to Patient -These are : Standard Care, Providing Information to the Patient /Attendant , Consent for Treatment, and Emergency Care.

(A)Standard Care -This means application of the principles of standard care which an average person takes while doing similar job in a similar situation :

1. Due care and diligence of a prudent Doctor.
2. Standard, suitable, equipment in good repair.
3. Standard assistants : Where a senior doctor delegates a task to a junior doctor or paramedical staff, he must assure himself that the assistant is sufficiently competent and experienced to do the job, and fulfills the prescribed qualifications.
4. Non-standard drug is a poison by definition.
5. Standard procedure and indicated treatment and surgery.
6. Standard premises, e.g. Nursing Home, Hospital , must comply with all laws applicable as imposed by the State and these must be registered wherever required.
7. Standard proper reference to appropriate specialist.
8. Standard proper record keeping for treatment given,surgery done, X-ray and pathological reports.
9. Standard of not to experiment with patient ( SeeDeclaration of Helsinki in Appendix IV).
10. Anticipation of standard risks of complications and preventive actions taken in time.
11. Observe punctuality in consultation.

(B)Duty to provide information to patient / attendant

1. Regarding necessity of treatment.
2. Alternative modalities of treatment.
3. Risks of pursuing the treatment, including inherent complications of drugs, investigations, procedure,surgery etc.
4. Regarding duration of treatment.
5. Regarding prognosis. Do not exaggerate nor minimizethe gravity of patient’s condition.
6. Regarding expenses and break-up thereof.

(C)Consent for treatment -Various types of consent and implications thereof are discussed in Chapter 5.

(D)Emergency Care -A doctor is bound to provide emergency care on humanitarian grounds, unless he is assured that others are willing and able to give such care. It may be noted that prior consent is not necessary for giving emergency / first-aid treatment. In emergency medico-legal cases, condition of first being seen by medical jurist is not essential.

2.Duties to the Public

1. Health Education
2. Medical help when natural calamities like drought,flood, earth-quakes, etc. occur.
3. Medical help during train accidents.
4. Compulsory notification of births, deaths, infectious diseases, food poisoning etc.
5. To help victims of house collapse, road accidents, fire,etc.

3.Duty towards Law Enforcers, Police, Courts, etc.

1. To inform the police all cases of poisoning, burns,injury, illegal abortion, suicide, homicide,manslaughter, grievous hurt and its natural complications like tetanus, gas-gangrene , etc. This includes vehicular accidents, fractures, etc.
2. To call a Magistrate for recording dying declaration.
3. To inform about bride burning and battered child cases.

4.Duty not to violate Professional Ethics( Only important few given)

1. Not to associate with unregistered medical practitioner and not allow him to practice what he is not qualified for.
2. Not to indulge in self-advertisement except such as is expressly authorized by the M.C.I. Code of Medical Ethics.
3. Not to issue false certificates and bills.
4. Not to run a medical store / open shop for sale of medical and surgical instruments.
5. Not to write secret formulations.
6. Not to refuse professional service on grounds of religion, nationality, race,party politics or social status.
7. Not to attend patient when under the effect of alcohol
8. No fee sharing ( Dichotomy).
9. Not to talk loose about colleagues.
10. Information given by patient /attendant to be kept as secret. Not to be divulged to employer, insurance company, parents of major son/daughter without consent of patient. Even in court this information is given only if ordered by the Court.
11. Recovering any money ( in cash or kind) in connection with services rendered to a patient other than a proper professional fee, even with the knowledge of the patient.

5.Duty not to do anything illegal or hide illegal acts

1. Perform illegal abortions / sterilization’s
2. Issue death certificates where cause of death is not known.
3. Not informing police a case of accident, burns,poisoning, suicide, grievous hurt, gas gangrene.
4. Not calling Magistrate for recording dying declaration.
5. Unauthorized, unnecessary , uninformed treatment and surgery or procedure.
6. Sex determination (in certain States).

6.Duty to each other

1. A doctor must give to his teachers respect and gratitude.
2. A doctor ought to behave to his colleagues as he would like them to behave to him.
3. A doctor must not entice patients from his colleagues,even when he has been called as a specialist.
4. When a patient is referred to another doctor, a statement of the case should be given. The second doctor should communicate his opinion in writing /over telephone/fax direct to the first doctor.
5. Differences of opinion should not be divulged in public.
6. A doctor must observe the principles enunciated in ‘The Declaration of Geneva’ approved by the World Medical Association. ( See Appendix III).

Duties of the Patient / Attendant

When a patient ( consumer ) hires or avails of services of a doctor for treatment, he has the following duties :-

1. He must disclose all information that may be necessary for proper diagnosis and treatment.
2. He must co-operate with the doctor for any relevant investigations required to diagnose and treat him.
3. He must carry out all the instructions as regards drugs,food, rest, exercise or any other relevant /necessary aspect.
4. In the case of a private medical practitioner he must compensate the doctor in terms of money and money alone. Moral considerations apart, failure on the part of the patient / attendant to do his duty : (

a) will enable the doctor to terminate patient -physician contract and that would free him from his legal responsibilities,

(b) will be construed as contributory negligence, and weaken the case of the patient for compensation.

Doctor - Patient Contract

Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Contract may be implied or express.

An implied contract is one inferred from conduct of parties and arises where one person renders services under circumstances indicating that he expects to be paid therefor, and the other person knowing such circumstances, avails himself of benefit of those services.

An express contract is an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally (oral agreement ) or in writing (written agreement).

The doctor-patient contract is almost always of the implied type, except where a written informed consent is obtained.

While a doctor cannot be forced to treat any person, he has certain possibilities for those whom he accepts as patients.It is an implied contract. Implied contract is not established when :

(i) the doctor renders first-aid in an emergency ;

(ii) he makes a pre-employment medical examination for a prospective employer;

(iii) he performs an examination for life insurance purpose ;

(iv) he is appointed by the trial court to examine the accused for any reason ; and

(v) when he makes an examination at the request of an attorney for last suit purposes.

A doctor-patient contract requires that the doctor must :

(1)continue to treat such a person ;

(2) with reasonable care ;

(3)reasonable skill ;

(4) not undertake any procedure/ treatment beyond his skill and

(5) must not divulge professional secrets.

These various requirements will now be discussed in the succeeding paragraphs.

(i)Continue to Treat-Responsibility towards a patient begins the moment a doctor agrees to examine the case. He must not, therefore, abandon his patient except under the following circumstances -

1. The patient has recovered from the illness, for which treatment was initiated.
2. The patient / attendant does not pay the doctor’s fees (in case of a private practitioner).
3. The patient / attendant consults another doctor ( of any branch of medicine ) without the knowledge of the first attending doctor.
4. The patient / attendants do not co-operate and follow the doctor’s instructions.
5. The patient is under some other responsible care, e.g., the patient, after admission in a hospital, comes under care of senior doctors / unit head.
6. The doctor has given due notice (orally or written ) for discontinuing treatment.
7. The doctor is convinced that the illness is a fictious one.

(ii)Reasonable Care -A doctor must use clean and proper instruments, and provide his patients with proper and suitable medicines if he dispenses them himself. If not, he should write the prescriptions legibly,using standard abbreviations and mention instructions for the pharmacist in full. He should give full directions to his patients as regards administration of drugs and other measures,preferably in local written language. He must suggest / insist on consultation with a specialist in the following circumstances :

1. When the case is complicated.
2. When the question arises about performing an operation which may be dangerous to life or requiring amputation.
3. Operating on a case in which there has been a criminal assault.
4. Performing an operation which may affect the intellectual or reproductive functions of a patient.
5. In cases where there is suspicion of poisoning or other criminal act.
6. When desired by the patient / attendants.
7. When it appears that the quality of medical service is required to be enhanced.
8. When there is no one from whom informed consent can be obtained.

(iii)Reasonable Skill -The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and the patient when the patient is told in effect : "Medicine is not an exact science. I shall use my experience and best judgement and you take the risk that I may be wrong. I guarantee nothing."

(iv)Not to undertake any procedure beyond his skill -This depends upon his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure / treating a complicated case. To quote an example, a doctor who is not sufficiently trained or qualified should not administer anaesthesia.

(v)Professional Secrets -A professional secret is one which a doctor comes to learn in confidence from his patients, on examination, investigations or which is noticed in the ordinary privacies of domestic life. A doctor is under a moral and legal obligation not to divulge any such secret except under certain circumstances. This is known as privileged communication which is defined as a communication made by a doctor to a proper authority who has corresponding legal, social and moral duties to protect the public. In must be bonafide and without malice, e.g., as a witness in a court of law; warning partners or spouses of AIDS patients and those found infected with HIV; informing public health authorities of food poisoning from a hotel etc; assisting apprehension of a person who has committed a serious crime ;informing law enforcers about medico-legal cases, etc.

Professional Negligence( Malpractice, Malpraxis)

Professional negligence is defined as 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.

Medical negligence or malpractice is defined as lack of reasonable care and skill or wilful negligence on the part of a doctor in the treatment of a patient whereby the health or life of a patient is endangered.

The term ‘damage’ means physical, mental or functional injury to the patient, while ‘damages ‘ are assessed in terms of money by the court on the basis of loss of concurrent and future earnings, treatment costs, reduction in quality of life ,etc.

In order to achieve success in an action for negligence, the consumer must be able to establish to the satisfaction of the court that :

(i) the doctor (defendant) owed him a duty to conform to a particular standard of professional conduct ;

(ii) the doctor was derelict and breached that duty ;

(iii) the patient suffered actual damage ; and

(iv) the doctor’s conduct was the direct or proximate cause of the damage.

The burden of establishing all four elements is upon the patient / consumer. Failure to provide substantiative evidence on any one element may result in no compensation.

Criminal Negligence. Here the negligence is so great as to go beyond matter of mere compensation. Not only has the doctor made a wrong diagnosis and treatment, but also that he has shown such gross ignorance, gross carelessness or gross neglect for the life and safety of the patient that a criminal charge is brought against him. For this he may be prosecuted in a criminal court for having caused injury to or the death of his patient by a rash and negligent act amounting to culpable homicide under Section 304-A of the Indian Penal Code. Some examples are as follows :

1. Injecting anesthetic in fatal dosage or in wrong tissues.
2. Amputation of wrong finger, operation on wrong limb,removal of wrong organ, or errors in ligation of ducts.
3. Operation on wrong patient.
4. Leaving instruments or sponges inside the part of body operated upon.
5. Leaving tourniquets too long, resulting in gangrene.
6. Transfusing wrong blood.
7. Applying too tight plaster or splints which may cause gangrene or paralysis.
8. Performing a criminal abortion.

Read more:Consumer Protection Act and Medical Profession - Doctor - Patient Relationshiphttp://www.medindia.net/indian_health_act/consumer_protection_act_and_medical_profession_doctor_patient_relationship.htm#ixzz1yjEHjrHA

HIV Patients' Right To Marry. Module 4

HIV Patients' Right To Marry
Indian-Bangladeshi laws in perspective
http://www.thedailystar.net/law/2008/02/02/index.htm
One of the hotly debated legal issues of the present time is whether HIV patients should have right to marry. Though a good number of countries have already enacted laws giving legal right to marry to the AIDS patients, it is still undecided in most of the countries of the globe. India and Bangladesh are two neighbouring countries which do not have any specific legislation settling the issue, though HIV/AIDS is considered to be a great threat to both Indian and Bangladeshi society. This write-up examines the present legal position regarding this issue in both the countries.

According to Islamic law and other modern laws, marriage is a civil contract which permits two persons of opposite sexes to live together. A successful marital life requires both mental or psychological and physical union of two persons. That is why the conditions for contract of marriage include both mental and physical elements. For entering into a marriage contract, a person has to attain a specified age, has to be mentally and physically healthy. Like any other contract, if any of these mental or physical conditions is not fulfilled, a person cannot marry. Even after marrying, if any of the conditions becomes absent, for example, if any of the spouses becomes insane or sexually incapable, the spouse is allowed to come out of that contract marital bondage. All these issues are regulated by laws of marriage and divorce.
Almost all marriage laws - for example, personal laws of Muslim, Hindu, Christian, Persian, as well as Special Marriage Act - provide the 'venereal disease' or 'sexually transmitted disease' as a ground for divorce to either husband or wife. HIV positive or AIDS is also a 'sexually transmittable disease'. Hence, legally HIV positive is also treated as a valid ground for divorce. (However, when recently an Indian court allowed divorce on the ground of HIV, it created huge controversy among the citizenry. In an earlier article titled 'whether HIV should be a valid ground for divorce' -- which can be found in The Daily Star, 17 Nov 2007 or at www.thedailystar.net/law/index.htm - I discussed about the controversy.) Now, if HIV positive is treated as a valid ground for divorce, it might also be treated as a legal incapacity to enter into a marriage contract. Then comes a question whether an HIV patient has right to marry.

Neither the Indian nor the Bangladesh Constitution has specifically recognised right to marry as a fundamental right. Though some legal experts argue that the right to marry is constitutive of one's right to life and that this right cannot be qualified on the basis of the health status of the person, seemingly, it is a legal right for only those who are mentally and physically capable. This, however, does not mean that a person suffering from a disease that makes him/her sexually incompetent loses his/her right to marry. When a person suffers from sexual disease, his/her right to marry becomes suspended only, and it revives again when the person recovers from the disease.

But when the disease is HIV positive or AIDS, which is medically treated as rarely recoverable, does the AIDS patients lose their right to marry? Suppose, an innocent 25 years youth is in some way infected with HIV positive and there is no possibility to recover from it, should his/her right to marry be suspended lifelong? These are questions to which there are no clear-cut answers in Indian or Bangladesh laws.

Legally, every young person has right to marry and to enter into a marriage contract. But unlike any commercial contract, responsibilities of the contract of marriage are not limited only within the contractual parties. Marriage is the foundation of a family as well as social relations. A couple owes a great responsibility to the family and society. In other words, right to marry is not an absolute one; it has to correspond to some other duties. For example, among the various objectives of a marriage, two prime objectives are to legalise the sexual intercourse between two persons of opposite sexes, and to procreate children. But through marriage, law does not only give right to two adult persons to satisfy their biological needs and to give birth to legitimate children, but also does impose a duty not to harm their life partner and children in any way. If a person is not able to perform this duty, he/she cannot exercise his/her right to marry.

Undoubtedly, HIV/AIDS is a deadly disease which can easily be transmitted to husband from wife and vice versa through sexual intercourse and it may infect the baby in the womb. Apparently, both Bangladeshi and Indian laws do not permit an HIV/AIDS patient to marry a healthy person and to infect their future innocent generation. These laws not only disallow it but also regard it as an offence. The penal provisions regarding this are same in both countries.

Section 269 of the Penal Code provides that whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Again, section 270 of the Penal Code also states whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Hence, if a person suffering from the dreadful disease AIDS, knowingly marries a man or woman and thereby transmits infection to that person, he/she would be guilty of offences indicated in sections 269 and 270 of the Penal Code.

But if the global character of AIDS, its spread, infections, and human rights of the AIDS patients are taken into consideration, such a swiping legal decision cannot be made. And logically, the above mentioned legal provisions should not be applicable to a case of HIV/AIDS. In fact, these legal provisions were made at a time when HIV/AIDS was not detected. These provisions were made taking in consideration the other common diseases that are curable by proper treatment.

However, in absence of clear statutory provisions or policy guidelines, it is the court to decide whether these legal provisions will be applicable to a case of HIV/AIDS. So far as I know, no Bangladeshi court has faced the issue till today. But Indian courts faced this issue almost a decade ago. In November 1998, a Division Bench of the Supreme Court of India held that if an HIV patient after knowing that s/he has been suffering from such dreadful disease decides to marry s/he shall be punishable under section 269 & 270 of the Indian Penal Code.

This judgement not only equated HIV to a 'venereal disease in a communicable form' but also observed that “AIDS is the product of undisciplined sexual impulse. This impulse, being the notorious human failing if not disciplined, can afflict and overtake anyone how high so ever or for that matter, how low he may be in the social strata.”

Of course, the court observed that the patients suffering from the dreadful disease AIDS deserve full sympathy. They are entitled to all respects as human beings. They should not be avoided, which otherwise, would have bad psychological impact upon them. But, sex with them or possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The court cannot assist that person to achieve that object.

At least one point is clear from these observations that the honourable Supreme Court Bench failed to take note that HIV also spreads through other non-sexual means, and any innocent person can be a victim of HIV/AIDS anytime.

The decision of the Supreme Court sent shock waves in the HIV community throughout the world. Subsequently another petition was filed before the Supreme Court against this judgment. A three-Judge-Bench decided that the earlier above decision was made without hearing all concerned groups (especially the NGOs) who are active in this field. Therefore, the learned three-judge-bench expunged the observations made in the abovementioned judgment and restored the rights of an HIV infected person to marry.

Nevertheless, the debate whether HIV/AIDS patients should have right to marry is not over. However, the overwhelming opinion world wide is that law should not take away the right of an HIV/AIDS patient to marry, as it is a basic human right. What law can do is to provide guidelines how they should exercise their right to marry. For example, as Indian Supreme Court guided, an HIV positive person must disclose his/her status to the other party. Then, if an infected or uninfected person knowingly wants to marry an HIV/AIDS patient, law should not bar them. Again after marriage, their right to parenthood shall be suspended; so long scientific development ensures that HIV/AIDS parents can give birth to an uninfected baby.

In fact, HIV/AIDS is not just a disease. It is a global problem. So, all the issues related to AIDS should be decided globally. The world community should come forward to adopt a unique policy based upon human rights of HIV patients. Hopefully, UNAIDS has already been working for this purpose. Among the 12 International Guidelines on HIV/AIDS and Human Rights provided by UNAIDS, guideline 3 is very much pertinent here. It says, states should review and reform public health laws to ensure that they adequately address public health issues raised by HIV/AIDS, that their provisions applicable to casually transmitted diseases are not inappropriately applied to HIV/AIDS and that they are consistent with international human rights obligations.

When it is important to see how much of these guidelines are being followed by the states, it must be kept in mind that law and policy is never a complete solution of any problem, but a partial solution only. As it is claimed by AIDS activists, the basis of discrimination against people living with HIV/AIDS is fear, and this fear comes mostly from wrong or distorted information. So, along side law and policy but with the same gravity, these countries must adopt a sufficient measure to correct misunderstandings about HIV.

Medical negligence

Personal Practice http://www.indianpediatrics.net/may2001/may-488-495.htm Indian Pediatrics 2001; 38: 488-495

Medical Negligence

Satish Kamtaprasad Tiwari Mahesh Baldwa* From the Department of Pediatrics, Dr. Panjabrao Deshmukh M. Medical College, Shivaji Nagar, Amravati 444 603, Maharashtra, India and *Department of Law, (Visiting Professor), Mumbai University, Mumbai 400 032, India. Correspondece to: Dr. Satish Tiwari, Yashodanagar No. 2, Amravati 444 606, Maharashtra, India. E-mail: satishtiwari@vsnl.net The last few decades have seen many ups and downs in medical sciences. Some of these are positive changes like scientific and technical advances, increasing longevity, decreasing mortality, morbidity and overall improvement in quality of life. At the same time there are some negative changes such as decreasing standard of medical education, decreasing values and morality and commercialization and corporate culture in management of patients(1). These changes have an important impact on doctor-patient relationship. This relationship is usually of fiduciary (that of mutual trust) nature. A doctor should treat the patient to the best of his knowledge, skill, care and judgement. In today’s situation this relationship is strained resulting in increasing number of legal problems. Bringing the doctors under the ambit of Consumer Protection Act (CPA) has further marginalized this relationship. The legal cases of medical negligence are rising because of the ease with which cases can be launched in consumer court. Essentials of Medical Negligence Medical negligence is an act of commission or an act of omission which a prudent doctor of average skill, knowledge and experience would not do. The essentials of negligence(2) are, four "D"s: (i) there is duty towards patients; (ii) there is deficiency in duty towards patients; (iii) this directly results in; and (iv) damage which may be physical, mental or financial loss to patient or relatives. Duty or Care As soon as a doctor accepts to treat the patient (except in emergency situation), the duty starts. There is no duty if the patient is turned away by the doctor. For example, a doctor is called to attend a patient (who is not under his care) but the doctor refuses to go. In this case there is no negligence as there is no acceptance. The idea of negligence and duty are strictly correlative. The duty starts irrespective of financial considerations. The concept of fee is more important in CPA. If the patient is not charged fee then a litigation may not be possible under CPA for example, in government hospitals. This may not be an absolute prerequisite for medical negligence since a civil/criminal negligence can occur even if a patient is treated without any fees. The relationship starts even if the doctor has not directly communicated with the patient, for example, Pathologist, Biochemist, Anesthetist, etc. The factors which decide the relationship are willingness to examine, to diagnose and to treat the case irrespective of the payment for such service. However, a doctor-patient relationship does not establish automatically in the following situations: (A) Medico-legal cases: (i) For assessment of injuries; (ii) For assessment of drunkenness; (iii) Cases of sexual offence; and (iv) Evaluation of disability for compensation; and (B) Examination for insurance purposes. Deficiency in Care Once the doctor starts caring for the patient, the standard of care must be of average skill, knowledge and experience equal to what a prudent doctor should have, which is neither too high nor too low but only average. According to Justice Denning, it would be a great disservice to community at large; if we impose liabilities on doctors, for each and every thing that happens to go wrong(3). Standard of care is not a subject of law but a subject of medical judgement. There should be foresee-ability of averting complications in a given situation. The standard of care is also proportional to duty undertaken, i.e., a pediatrician is expected to provide a better care as compared to a general practitioner while managing a child. If the doctor commits any deficiency in his duty, he may be liable for his act. The deficiency in duty must be "Causa causans", i.e., direct and proximate cause for injury or damage. The cause must be foreseeable and not too remote. For example, if a child of acute gastroenteritis is under treatment and he develops encephalitis, this is not negligence. But if this child develops severe dehydration then it may be a negligence. The damage can be measured in terms of: (a) additional financial expenses for treat- ment of complication resulting as a consequence of negligence; (b) loss due to absence from work; (c) decreased life expectancy; (d) loss of organ or limb; and (e) death of the patient who could be a wage earner for the family. Negligence and Rashness Rashness is undertaking any act which is beyond one’s competence. No prudent man in similar circumstances would have done this act. Rashness is part of negligence. For example, a pediatrician managing a case of myocardial infarction or doing surgeries or dressing a punctured wound without assessing how much internal damage is present. Res Ipsa Loquitur The doctrine of res ipsa loguitur means "things speak for themselves". The doctor is personally or vicariously liable for the negligent act. In such cases, damage is so obvious that there is no need for any proof of negligence. For example, operating on wrong eye, limb or patient; retained sponges or forceps after surgery; and doing exchange transfusion on wrong baby. In one Canadian study(4), it was observed that res ipsa loquitur was pleaded in only 37 out of 142 cases, it was applied in only 14 cases and defendants were found liable in only 10 of these cases. Criminal Negligence Sometimes if the act of commission or omission is so rash that it results in death or serious injury to the patient then it may amount to criminal negligence. In such cases the situation is much more difficult to tackle as compared to civil negligence. Theories of Negligence Negligence can result either due to an act of commission (which a prudent man shouldn’t do) or an act of omission (which a prudent man must do). According to objective theory of negligence(5) there is carelessness in approach towards the patient and the act of commission results in injury to the patient. Following are the some of the example of acts of commission(6): (a) Undertaking care beyond one’s skill and experience: If a doctor with homeopathy degree practices allopathic medicine, in which he doesn’t have basic knowledge, he is guilty of negligence per se and no further proof is needed. This was the verdict of the Supreme Court in the case of Poonam Verma vs Ashwin Patel and others(7); (b) Giving harmful drugs un-necessarily to a patient; (c) Injuries due to faulty techniques for example, gangrene or necrosis due to leakage of intravenous fluids or drugs in subcutaneous tissue; (d) Overdoses of drugs, giving wrong drugs, etc.; and (e) Iatrogenic problems. According to subjective theory, negligence is a mental attitude of undue indifference. The doctor is indifferent to the consequences of his act of omission thus causing damage to the patient. The acts of omission can be as follows: (i) Failure to attend to patient; (ii) Failure to examine and investigate carefully (iii) Failure to obtain proper consent for any procedure or intervention; (iv) Failure to give standard treat-ment; (v) Failure to take proper precautions while giving injections; (vi) Failure to advise hospitalization; and (viii) Abandoning treat-ment without making alternative arrange-ments. A doctor should handle only those cases which are within the limit of his knowledge, skill and experience. It is better to refer the case to a proper consultant or a hospital after giving primary treatment. If a doctor has to abandon the treatment under unavoidable circum-stances, he must make alternative arrangement of a qualified consultant or shift the patient to a properly equipped center. Contributory Negligence Sometimes the unexpected results may not be only due to negligence of the doctor but also due to negligence of patients or relatives. This is known as contributory negligence. Examples include: (a) Not coming for follow-up as per the advice of doctor; (b) Failure to follow the instructions given by the treating doctor; (c) Investigations advised by the doctor are not done by the patient; (d) Patient fails to take advice of a specialist (for example, in case of acute abdomen or head injury, the Pediatrician has referred to a surgeon but the patient fails to take such a consultation); and (e) patient leaves the hospital against medical advice. The liability for the damage in such cases is suitably divided between the doctor, patients and relatives. The burden of proof of contributory negligence on the part of patient is on doctors. Burden of Proof Negligence is difficult to prove. Burden of proof is on patients or relatives (according to law, compailnant should prove that the proximate cause of injury is negligence by doctor). But in following cases the onus of proof may be on doctors (Jagdish Singh, personal communication): (i) If the patient is in operation theatre or intensive care where relatives or attendants have no access; (ii) If the doctor has raised a plea, i.e., suppose a patient of hydro-pneumothorax is admitted. The patient is not taken for surgery and dies of respiratory failure. The doctor pleads that surgery was not done as patient or relatives didn’t given consent. In this case doctor has to prove that consent was refused (hence it should always be in writing whether the consent is given or refused); and (iii) In cases of res ipsa loquitur. What is not Negligence In the following situations it is not negligence and hence the doctor may not be held liable: (i) Difference of opinion: If there are two accepted schools of thought, any particular method may be adopted by the doctor in the patient. Bolam’s Test: In a case (Bolam vs. Friern) Hospital Management Committee in UK, the following principles were derived: If there are two accepted schools of thoughts, for any treatment, doctor may use any one of them. If some complications occur due to particular method (accepted school of thought) the doctor can’t be held responsible only on the ground that why he didn’t use the other method(8). This is known as Bolam’s principle. In this particular case, electroconvulsive therapy was given without muscle relaxant and the patient developed a fracture of jaw. In those days two schools of thought were accepted; that electroconvulsive therapy can be given with or even without muscle relaxant. Hence, negligence was not held. (ii) Wrong diagnosis in spite of diligence: Sometimes it is very difficult to differentiate between some of the common and similar presentations of diseases like partially treated pyogenic meningitis, tubercular meningitis and encephalitis. In such cases, if the doctor has taken all the care but still complications occur due to improper diagnosis, then this is not negligence. (iii) Accidents: Sometimes some accident may occur during hospital stay like breaking of needle or instruments not working. It is not negligence if such accidents are detected, attended and managed within reasonable time. (iv) Unexpected results: According to Sir Williams Osler (a USA Physician), medicine is a "science of uncertainty and art of probability"(6). All persons in community do not acquire all diseases. There is always a probability of acquiring a disease. Some acquire the disease while others do not, inspite of being exposed in an equal amount. Every individual has different body response not only to disease but also to treatment. Hence there is uncertainty in every case. Hence we talk of "most probable diagnosis" and "most probable outcome" of a disease. A doctor can’t be held negligent only because there was unexpected outcome. Defenses in Negligence Whenever there is allegation of negligence, the following defenses may be pleaded by the doctor: (a) Actual Denial: If a doctor is very confident that there is no negligence on his part, the best way is to deny that the injury is due to negligence. (b) Contributory negligence on part of patient, relatives shall be helpful in minimizing the severity of the doctor’s negligence. For example, if the patient was instructed to come for regular follow-up but did not comply, or the patient was instructed to remain nil orally but the patient was given orally. (c) Delegation of duties to a qualified assistant, partner, laboratory attendant or nursing staff may be one of the defenses. In such cases the responsibility is of the person to whom duty was delegated. But if a consultant delegates his responsibility to his junior with the knowledge that junior was incapable of performing his duties properly, this is negligence on part of consultant. This was held by Supreme court in the landmark decision in the case of Spring Meadows Hospital vs. Harjot Ahluwalia through K.S. Ahluwalia(7). The doctor shall be liable for the act of his staff if they are unqualified. This is vicarious liability. But if the qualified staff makes the mistake then the doctor may not be held directly responsible. (d) Inherent Risk: There is "assumption of risk" whenever treatment is started. This is based on principle of "Volenti non fit injuria" i.e., no person can ask for any action if he has voluntarily consented for it. For example, radiation burns may result even during proper radiation therapy. This is not negligence. But the patient has a right to sue if burns result from over exposure. (e) Emergency Situation: Cardio-respiratory arrest is an emergency situation. Some-times fracture of ribs can occur during cardio-pulmonary resuscitation. A doctor can’t be held negligent for causing fracture of rib in such a situation. (f ) Known Complication: Some drugs or procedures have known complications. For example, anaphylaxis after Penicillin injections is a known complication. A doctor cannot be held responsible if proper sensitivity test was done and all measures for management of anaphylaxis were readily available in the hospital. (g) Unexpected Results: Some unexpected results occur inspite of proper diagnosis and adequate treatment. A doctor cannot be held negligent in such cases. For example, a pre-term or small for date baby may develop cerebral palsy or mental retarda-tion inspite of adequate and proper care. A doctor shouldn’t be held negligent for this outcome. (h) Difference of Opinion: There may be a difference of opinion amongst doctors while treating a case. This is not negli-gence. This principle was derived in "Balam’s Test" (i) Limitation Period: If a particular case is filed beyond the period of limitation (according to Civil Law 3 years), this defense could be forwarded by the defendant. While managing a child the limitation period may extend till he becomes major (Section 6 of Limitations Act 1963) and is able to take his own decisions. So in the case of a neonate, the limitation period may extend as long as 21 years of his age (age of majority 18 years plus period of limitation 3 years). (j) Counter Suits: Counter suits by doctors against the patients may be helpful in minimizing cases of negligence. (k) "Res Judicata" means "the thing has been decided". This means that once the case is completed between two parties, it cannot be tried again between the same parties. For example, if a doctor sues a patient for non payment of bill and the patient doesn’t plead negligence on part of the doctor, the patient cannot subsequently sue the doctor for negligence after the completion of the case. Precautions Against Negligence The cases of negligence against doctors are rising. In an analysis of 202 cases done by Dr. Jagdish Singh (Personal communication), 6 cases (about 3%) were against Pediatricians. Out of the 183 decided cases in this study, negligence was held in 52 (28.4%) cases. In an analysis of about 4054 cases of liability claims between 1991-1996 in Puerto Rico, 3506 cases were closed against physicians or institutions and payment was issued in 1272 (36.3%) cases(9). In another study conducted in California, 375 physicians were disciplined for 465 offences: the most frequent(34%) cause was negligence or incompetence(10). Members of medical profession are constantly under the spotlight of media scrutiny though they enjoy a significant degree of cultural and social authority in the press(11). It is said that "An ounce of prevention is better than a pound of cure". So it is better that we take precautions to prevent the cases of negligence rather than fighting them out in the court of law. The following steps may be helpful in avoiding cases of negligence: (a) Attend and treat patients with reasonable care and skill. A second opinion may be taken whenever required (especially in complicated and critical patients). Advise proper investigations related to the case. If vaccines are available, the patient must be informed accordingly. While managing a case, give guarded prognosis. "Guarantee for care and not cure" while treating a case. Keep the hospital instruments and equip-ments in proper and working condition. Instruments must be properly sterilized. Most malpractice suits claim negligence. The claims usually include failure or delay in diagnosis, negligent treatment, failure to obtain expert opinion, failure to obtain informed consent and negligence during the procedure(12). (b) Record Keeping: Proper record must be maintained including history, examination and investigation reports. Treatment adopted, consent for various procedures (including refusals) and any expert opinion (if advised) shall be recorded in writing. A well maintained record can be a friend of the doctor in an hour of crisis. Don’t try to manipulate the records(13). (c) Staff and Partners including assistants, subordinates, locum, etc. should be selected carefully. They shouldn’t only be qualified but their behavior towards the patient should also be good and compassionate. The communication skill with patient and relatives should be good. If a doctor is employed in some hospital (e.g., Corporate hospital), the hospital management will also be responsible for the outcome of negligence. It is the responsibility of the hospital management to provide proper equipment, qualified, competent, trained paramedical and nursing staff. If proper and adequate facilities are not available, a timely referral to well equipped center is a desirable alternative. (d) Don’t Criticize Colleagues: Criticizing our own colleagues is one of the major cause of increasing litigation against doctors. Before making any comment we must verify the actual facts and situation in the particular case. It has been observed that majority of cases in CPA are because of the instigation and criticism by some of our own disgruntled colleagues. Whenever there is a case in CPA and a doctor is going as an expert, he may have some "ethical dilemma" while giving evidence against his own professional colleague. But one should remember that the concept of truth and "natural justice" must prevail under all circumstances. (e) Update Your Knowledge: A doctor should try to keep abreast with latest developments as far as possible in his field. Law doesn’t expect one to know each and every detailed advance but one must know the things expected of an average prudent man. (f ) Inform Regarding Hazards: The patient and relatives should always be informed regarding complications or adverse reac-tions of drugs and procedures. The blanket consent or getting a thumb impression may not be a valid defense. As far as possible the consent should be an informed consent (preferably in presence of witnesses). Informed consent may be helpful in cases of negligence, but it does not give absolute immunity. While giving drugs like Peni-cillin, Xylocaine, etc. a proper sensitivity test must be done. If complications occur, measures for emergency treatment must be readily available. Injection vials should be preserved for about 24 hours. In spite of all the precautions, if reaction occurs, it is an accident and not negligence. (g) Insurance: Professional indemnity cover may be helpful whenever there is a litigation in the court. It may not be helpful in minimizing the damage to the reputation of the practitioners, but it may help as far as financial liabilities are concerned. The insurance companies may also help by providing services of advocates and legal experts as the companies are themselves parties to such litigations. It is preferable to know someone in the insurance company so that the dealing and processing of the matter becomes easy. The disadvantage of insurance is that: (i) if the patients or relatives know that the doctor is insured then they may be encouraged to go in for the litigation; and (ii) many times even the insurance companies are willing for the out of the court settlement which is cheaper and of "least resistance" to them rather than fighting out the case. (h) Counter Compensation Suits: The time is not far away when doctors will need to file counter suits against patients. Such trends have started in western countries and it has been observed that this has resulted in decreased incidences of negligence suits against doctors. Role of Medical Councils The Medical Council of India is concerned with standard of medical education, while the state Medical Councils deal with the complaints of negligence against doctors. It was expected that the councils will be effective in providing cheap and quick justice. The councils have power to punish the doctors by giving warnings, suspending their registrations (temporarily or permanently) but they can’t order compensation to the patient. It is desirable that Medical Council Act be updated so as to give more powers to decide patient’s complaints. Concluding Comments Now-a-days the doctor-patient relationship is under constant strain. The doctors must be aware of the pros and cons of day-to-day medical practice. We must communicate and behave properly with the patient and their relatives. Records must be properly main-tained. The best way is to avoid legal cases by having grievance redressal forum and medico-legal cells, preferably in the hospital premises itself. Acknowledgments We are grateful to Professors P. Chaturvedi and K.Y. Vilhekar for the constant constructive criticism provided in drafting this article. We are also thankful to Dr. Janki N. Borkar for help in drafting this manuscript. Key Messages Technical, scientific advances and corporate hospital culture has resulted in soaring expectations in patient’s mind. Patients and relatives can be easily encouraged to sue the doctor in a court of law. To establish negligence, damage must be causa causans of negligent act or deficiency in care. Good, compassionate behavior, proper record maintaining and a valid consent may be of great help whenever there is a case of negligence. Ethical committees, medico-legal cells and consumer organizations may help in minimizing unwanted litigations. References Potdar RD. Consumer protection law and pediatrician. Indian Pediatr 1997; 34: 283-286. Phatnani P. Medical negligence. In: The Medical Profession and The Law, 1st ed. Ed. Lele RD, Mumbai, Sajjan and Sons, 1992; pp 11-22. Bal A. Consumer protection act and Medical profession. Indian Pediatr 1997; 34: 319-327. Neff C, Cook R. Res ipsa loquitur in Canadian medical malpractice cases 1975-1988. Med Law 1991; 10: 575-600. Jhabvala NH. Indian Penal Code 13th edn. Mumbai, C. Jamnadas and Co, 1997, pp 25-27. Lele RD. The Medical profession and the law: An overview. In: The Medical Profession and the law, 1st edn., Mumbai, Sajjan and Sons, 1992; pp 7-38. Pandit MS Medico-Legal Systems Module VIII, Pune, Symbiosis Center of Health Care, Medico-Legal Cell, 1999; pp 35-37. Joshi MK. Doctor and Medical Law, 2nd end., Ahmedabad, 1995; pp 46-53. Brau RH, Diaz C, hawayek J. Lojo JJ, Malaret GE, Ramos Barroso A, et al. Medical negligence in Puerto Rico, PR Health Science J 1998; 17: 55-67. Morrison J, Wickersham P. Physicians disciplined by state medical board. JAMA 1998; 279: 1889-1893. Lupton D, McLean J. Representing doctors; discourses and images in the Australian press. Soc Sci Med 1998; 46: 947-958. Bowman MA. Risk management and medical malpractice. Am Fam Phys 1992; 45: 1741-1745. Tiwari SK. Legal aspects in medical practice. Indian Pediatr 2000; 37: 961-966.

Failed Sterilization operation. Module 4

Delhi High Court

Laxmi Devi And Anr. vs Union Of India (Uoi) And Ors. on 7 March, 2005

Equivalent citations: 118 (2005) DLT 484, 2005 (81) DRJ 445

Author: M Sarin

Bench: M Sarin
http://indiankanoon.org/doc/982167/

JUDGMENT

Manmohan Sarin, J.

1. Petitioners by this writ petition seek award of compensation of Rs. 3,50,000/- against respondents 1 & 2 for a failed sterilization operation and birth of an unwanted child.

2. Petitioner No. 1 is the wife and petitioner No. 2 is her husband. Petitioners married under Hindu rites in February,1992. Petitioner No. 1 between 1992 till 1998, gave birth to two sons and one daughter. Petitioner No. 2 is a night watchman in a locality and collects contributory small monthly amounts from residents of the locality. The income is irregular and uncertain.

3. Petitioners facing financial difficulties with meagre income and three children, decided not to have any more children. Petitioners opted for sterilization of petitioner No. 1. A tubectomy operation was performed on petitioner No. 1 by the doctor of respondent No. 2 in respondent No. 2 hospital on 7.3.2000. A certificate to this effect was also issued.

4. Petitioners claim to have been assured by respondents that operation was successful and they need not now worry about pregnancy or unwanted children.

5. It is petitioners' case that in the month of July,2002, she came to know that she had conceived. She contacted doctors of respondent No. 2, who confirmed the pregnancy after conducting tests. Petitioner No. 1 was advised that three months having already elapsed, Medical Termination of Pregnancy (MTP) was not advisable and was fraught with risk. Petitioner sent a representation in September, 2002, for grant of compensation, which did not bring forth any result except an acknowledgement and advice to contact the Welfare Department. In due course, a male child was born to the petitioner on 28.11.2002.

6. Taking the normal gestation period or pregnancy term, since the child was born on 28.11.2002, conception should have been in the month of late February,2002 or March, 2002. The petitioners as per their own admission contacted respondent No. 2 only in the month of July,2002, by which time over 4-5 months had already elapsed and medical termination of pregnancy was not free from risk.

7. The question to be considered by the Court is the effect of contributory negligence on the part of petitioners to their claim. Undoubtedly, petitioner No. 1 did not on missing mensuration or immediately thereafter approach the Respondent authorities for termination of unwanted pregnancy, which may have resulted from the failure of the sterilization operation.

8. Reference may usefully be made to the judgment of a learned Single Judge of this Court in Smt. Shoba v. Govt. NCT of Delhi and Anr. reported at 2003 IV AD (Delhi) 492. The judgment deals with two cases for grant of compensation due to unwanted conception and birth of children, following failure of sterilization operations. The judgment lucidly enunciates the legal principles to be followed in grant of compensation as also the essential components of the tort of negligence and notices the relevant case law. The Court in para 14 observed as under:-

"14. However, in the instant case, the petitioner was not suffering from any disease for treatment of which she had gone to hospital authorities. She is a normal healthy person. She had approached the hospital authorities as she wanted to prevent birth of unwanted child. There was no question of error of judgment in performing the operation properly it could have been simply a case of success. If in spite of this operation, she conceived and has given birth to a child, it is clearly a case of something amiss while performing an operation and one can hopefully deduce that standard of reasonable care expected of the doctor was not taken."

9. In the first case dealt with in the judgment, the Court awarded damages of Rs. 3,25,000/- holding that there was no negligence on the part of the petitioner therein and there was no delay in approaching the hospital authorities. However, in the case of second writ petition, namely, WP(C). No. 7515/2000, the Court concluded that the petitioner was guilty of contributory negligence in not approaching the Hospital Authorities on coming to know of her pregnancy. The Court concluded on facts that petitioner must have got pregnant sometime in April and as on 24.5.1999, when her pregnancy was confirmed she would be 6-7 weeks pregnant, having regard to the child being born on 8.1.2000. Her pregnancy could have been safely terminated in May, 1999. She did not choose to do so. She went to the Government dispensary thereafter only on 23.8.1999, when she was at advance stage of pregnancy. It appeared that the couple had accepted the position regarding pregnancy. Petition was filed to simply claim compensation of Rs. 10 lacs. The Court held that petitioner could have prevented the birth of child in respect of failure of tubectomy operation and awarded Rs. 10,000/- as token damages.

10. On the basis of the above ruling, Mr.Amiet Andley on behalf of the respondent submits that there was no reason to depart from the figure of Rs. 10,000/-, as fixed in the judgment of Smt. Shobha v.Govt. Of NCT of Delhi and Anr. (Supra) as token damages in case of contributory negligence. In my view, in the present case, there are distinguishing features from that of WP(C). No. 7515/2000. In the said case (WP(C). No. 7515/2000), husband and wife were both Government employees, which would imply certain degree of education and a higher degree of awareness of facts of life. In the present case, petitioner Nos. 1 and 2 are poor people. Petitioner No. 2 is a part-time Chowkidar, engaged by the residents, who pay him individually some token amount and he barely collects about Rs. 1500/- from different residents. Both are stated to be illiterate. The contributory negligence of petitioners in not approaching the doctors on time, has to be considered and determined, keeping in mind their background, general awareness and living conditions. While it is true that petitioner No. 1 had also been a mother three times and the factum of having gone through the pregnancy three times and a missing mensuration period could have alerted her. However, at the same time, she would have the expectation and belief of being safe from pregnancy as a result of operation and thus ignore missing periods. Besides, delay and irregular mensuration following sterilization/tubectomy operation are also not unknown. Keeping in mind the lack of educational background, economic conditions and the lack of awareness, the factum of failure of sterilization operation cannot be ignored. Petitioners could have been allured into the belief of being total safe from unwanted pregnancy.

In the light of the foregoing discussion, I am of the view that ends of justice would be sub-served by awarding total damages of Rs. 30,000/- to the petitioneRs. Out of the said sum, Rs. 25,000/- be kept in an FDR in a nationalised Bank till the minor child Mahesh attains majority. The interest to be available on 6 monthly basis for up-keep of the child, while the remaining sum of Rs. 5,000/- be paid to the petitioneRs.

Writ petition is allowed in the above terms.

Res ipsa Loquitur. Module 4

In the common law of negligence, the doctrine of res ipsa loquitur (Latin for "the thing speaks for itself") states that the elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved. Although modern formulations differ by jurisdiction, the common law originally stated that the accident must satisfy the following conditions:
1. A "duty" exists for a person to act "reasonably"; and
2. A "breach" of this duty occurs because a person [or agency, etc.] acted outside this duty, or "unreasonably"; and
3. There was "causation in fact"...the result would not have occurred "but for" the "breach" of this duty;
4. There was actual legally recognizable harm suffered by the plaintiff who did nothing wrong (i.e., no contributory negligence).
Upon a proof of res ipsa loquitur, the plaintiff need only establish the remaining two elements of negligence—namely, that the plaintiff suffered harm, of which the incident result was the legal cause.

The term comes from Latin and is literally translated "the thing itself speaks", but the sense is well conveyed in the more common translation, "the thing speaks for itself." The earliest known use of the phrase was by Cicero in his speech Pro Milone.

The legal doctrine was first formulated by Baron Pollock in the 1863 English case Byrne v Boadle.

Exclusive control
In some cases a closed group of people may be held in breach of a duty of care under the rule of res ipsa loquitur. In Ybarra v. Spangard, a patient undergoing surgery experienced back complications as a result of the surgery, but it could not be determined exactly which member of the surgical team had breached his or her duty, and so it was held that they had all breached, because it was certain that at least one of them was the only person who was in exclusive control of the instrumentality of harm.
Because it can be difficult to prove "exclusive control", this element has largely given way in modern cases to a less rigid formulation: that the evidence eliminates, to a sufficient degree, other responsible causes (including the conduct of the plaintiff and third parties). For example, in New York State, the defendant's exclusivity of control must be such that the likelihood of injury was, more likely than not, the result of the defendant's negligence. The likelihood of other possibilities do not need to be eliminated altogether but they must be so reduced that the greater probability lies with the defendant.

Plaintiff did not contribute
In jurisdictions that employ this less rigid formulation of exclusive control, this element subsumes the element that the plaintiff did not contribute to his injury.
In modern case law, contributory negligence is compared to the injury caused by the other. For example, if the negligence of the other is 95% of the cause of the plaintiff's injury, and the plaintiff is 5% responsible, then the plaintiff's slight fault cannot negate the negligence of the other. This new type of split liability is commonly called comparative negligence. As a fictitious example:
John Doe is injured when an elevator he has entered plunges several floors and stops abruptly.
Jane's Corporation built, and is responsible for maintaining, the elevator.
Doe sues Jane, and during the proceedings, Jane claims that Doe's complaint should be dismissed because he has never proved, or for that matter even offered, a theory as to why the elevator functioned incorrectly. Therefore, argues Jane, there is no evidence that they were at fault.
The court holds that Doe does not have to prove anything beyond the fall itself.
The elevator evidently malfunctioned (it was not intended to fall nor is that a proper function of a correctly functioning elevator).
Jane was responsible for the elevator in every respect
So Jane's Corporation is responsible for the fall.
The thing speaks for itself: no further explanation is needed to establish the prima facie case.