Determining Medical Negligence of Doctors and Hospitals at the time of Covid-19 Outbreak

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Introduction

In India the Medical Profession is considered as a noble profession since time immemorial as the doctors helped in prolonging and preserving the life of people by applying the skills which are possessed by them. Even they were considered equal to god and a stature of god was provided to the doctors in India from ancient to modern society. With the passage of time the Medical profession evolved due to the ongoing research and development being carried out in the field. With the advancement of the technology in India the stature of god is being taken away by the patients in India and the individual has started to question the treatment done by the doctor to the patient where the relatives of the patient are of the opinion that there has been any negligence carried out by the doctor. In present a patient reaches out to the doctor on the basis of his/her reputation of the doctor/hospitals and has an expectation of being treated by the doctor/hospital with utmost care and skill possessed by the doctor. The relatives of the patient are also assured that there cannot be any carelessness or negligent act towards his/her patient by the doctors or the hospital administration. Generally there is imposition of criminal or civil liabilities on the doctors or hospital administration for any negligent act of the doctors or the hospital administration but after the advent of Consumer Protection Act, 1986 and event after the amendment of 2019 which substituted the  to the Consumer Protection Act, 1986 by Consumer Protection Act, 2019.[i] After the advent of consumer protection act the procedure for filing and seeking compensation from the doctors and hospital administration have been widened for the patients but there are certain limitations with which government hospitals and private hospitals can escape the liability. In addition although there are guidelines and code of ethics by the Medical Council of India which are only regulatory in nature and lacks penal provisions there has been enormous number of the cases reported for the negligent acts carried out by the doctors, hospital administration or other staffs which instead of decreasing are increasing in number day by day. At present time after the outbreak of the Covid-19 there was a medical emergency situation was emerged in the country and the importance of the doctors and healthcare workers is considered as of a prime importance and they were considered as “Corona Warriors” by the government and the people of the countries but there are certain reported instances which reflects that there were negligence of the medical staff and the administration which resulted even in death of the patients due to negligence of the doctors and the hospital staffs. This research article deals with determining the liability of the doctors and hospitals during and post Covid-19 outbreak for the acts of negligence carried out by them while treating the patient.

What Constitutes Medical Negligence

In day to day activities negligence will be there when there is mere carelessness but when considered in legal terms the negligence will accrue when there is a failure on the part of an individual/group of person in order to exercise the standard duty of care which the person/ a group as a reasonable man would have exercised in the given circumstances. Whereas the Medical negligence will accrue when the negligence of the doctors/medical practitioner which includes health care workers and a pharmacist which results to act in accordance with the medical standards in practice and which are being practiced by an ordinarily and reasonably competent person in the same profession. In addition to the negligent act if the doctor/medical practitioner does an act which are beyond the duty of the medical practitioner then it may also result in the negligent act done by the doctor or the medical practitioner. The Supreme court has time and again stated that the concept of medical negligence is not only limited to the doctors but it can also be applied to the nursing staff, healthcare facilities, pharmaceutical companies and even the hospitals can be held liable for the act of negligence. The apex court in the case of State of Haryana vs. Smt. Santra has held that every doctor has a duty to act with a reasonable degree of care and skill.[ii] In order for a doctor to practice there is a requirement of minimum basic skills to be possessed by the doctor and in order to elaborate this situation the Supreme Court in the case of Poonam Verma vs. Ashwin Patel has held that that a person who does not have knowledge of a particular system of medicine but practices in that system is a rogue. Where a person is guilty of negligence per se, no further proof is needed.[iii]

Generally a doctor is not able to save the life of his patient to whom he is treating in each and every case but the doctor/medical professional is excepted to use the special knowledge and skills in an appropriate manner for the best interest of the patient who has entrusted in him. Failure of a doctor/medical professional to discharge his/ her obligation will amount to a tortious liability and as a result the patient is imbibed with an essential civil right to receive medical treatment from the doctors and hospitals. The Supreme Court in the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbark Babu Godbole has held that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment.[iv] If there is a breach of any of the abovementioned duties of the doctor then it would result in the extra grounds for adding up to the case of the medical negligence as against the doctors. There exists a duty of the doctor to take prior consent before initiation of a particular treatment for living patients which includes for the purpose of  diagnosis, treatment, organ transplant, disclosure of medical records and for teaching and medico-legal purposes. The consent of the patient or his relatives may be in the form of express consent which includes either in oral or in writing or it may be implied consent which reflects from the conduct of the patient or it may be in the form of the advanced consent which is obtained by the medical professional after stating possible risks and in particular the side effects of the particular treatment to the patient/ his relatives.

Civil liability of Doctors as well as hospital administration

In general the act of negligence or the medical professional was covered under the law of tort in India initially where the determination of the liability was based upon the fulfilment of the ingredients which comprise of following elements:

(a) existence of legal duty;

(b) breach of legal duty and

(c) damage caused by the breach.

When the abovementioned ingredients were established by the patients or his relatives the doctor/medical professionals were held liable under the law of tort and were liable to pay compensation to the patients. But after the advent of the Consumer Protection Act, 1986 the liability of the medical professionals have been widened and there is an imposition of the strict liability under the consumer protection act when there is any negligent act committed by the doctor/medical professional. It is always contended that the medical negligence under the tort and the consumer protection act may overlap at certain times but there has been a clear distinction between the two as the applicability of the consumer protection act is limited to the deficiency caused by the services which are hired by the individual and the hospitals as well as doctors/medical professional can be held liable for the act of negligence. In order for the Consumer Protection Act, 1986 or the Consumer Protection Act, 2019 to be applied after the cases which are initiated after 20th July, 2020 when the Consumer Protection Act, 2019 becomes applicable repealing the Consumer Protection Act, 1986 the service provided by the doctor needs to be covered under the ambit of service as provided under Consumer Protection Act, 1986 or Consumer Protection Act, 2019. Section 2 (1) (o) of the Consumer Protection Act, 1986 and Section 2( 42) of the Consumer Protection Act, 2019 define that what constitutes a service. While analysing the definition of service the it provides for certain kind of services and is an inclusive definition under which there can be inclusion of various kind of services belonging to multiple  sector. Thus, the medical services in order to fall under the definition of service in the Consumer Protection Act, 1986 or Consumer Protection Act, 2019 if it is not free of charge or it should not be under a contract of personal service. Under this definition of service, the services provided by the government hospitals and doctors working in the government hospitals will not be held liable for the deficiency of service  under the consumer Protection Act as there is a clear cut demarcation between the medical negligence  done by the doctors and hospitals charging fees for the services and the hospitals and doctors rendering the medical services free of charge. Although in both the cases the nature of work carried out by the doctors is almost similar in nature but when it comes to deciding the liability on the part of the doctors, the doctors and hospitals charging fees are held liable under the Consumer Protection Act, 1986 or Consumer Protection Act, 2019 for medical negligence. On the other hand the private hospitals and the government hospitals which provides medical treatment to the patients for free of cost or in lieu of mere registration fee will not be covered under services the ambit of the Consumer Protection Act, 1986 or Consumer Protection Act, 2019. And can easily escape the liability for medical negligence. The Supreme Court in the case of Indian Medical Association v. V.P. Shantha and others[v] has clearly stated that any services rendered by a medical practitioner to a patient except where the doctor provides services free of cost to every patient or under a contract of personal service. The court also stated that the medical profession will be covered under the ambit of consumer protection act.

In Joseph alias Poppchan v. Dr. George Moonjerly[vi],  the Kerala High Court has stated that  the individual or a group running a hospital in the eyes of law are under the same footing of the doctor whenever a hospital accepts patient for treatment it is a minimal requirement that the hospital must try to use reasonable care and skill in order to help the patient to recover. The hospital authorities cannot perform these activity on their own but they have to employ the staff who are capable in giving treatment and if in the case where the staffs are found indulged in a negligent act in the course of treatment then the hospital administration will be held vicarious liable for the acts done by  the staff.

Criminal liability of Doctors as well as hospital administration

In the Indian Penal Code, 1860 or under any penal provisions applicable in the country there is no specific enumeration for the provision for culpability for the act of medical negligence carried out by the doctors/medical practitioner. Like any other individual the liability is imposed upon the doctors or medical practioner under section 304 A of the Indian Penal Code, 1860. However the judicial precedents clearly demarcate the distinction between the liability of medical professionals and the person practising any other professions. The following are the guidelines provided by the Supreme Court in respect to the person practising medical profession:

  1. A private complaint made by the complainant will not be entertained until and unless the complainant has not produced an evidence before the court which is in the form of an opinion given by a doctor who is competent to deal with the case of similar nature . The report of the doctor should support the negligence and rashness on the part of the doctor who has been accused of the negligence by the complainant.[vii]
  2. Before proceeding for the investigation against the doctor who is accused for rash or negligent act or any part of omission on his part, the investigating officer shall obtain an independent and medical opinion from a doctor preferably in a government service and is normally qualified in that branch of medical practice  for which the doctor is accused off and is expected to give an impartial and unbiased opinion regarding the act of negligence of the doctor.
  3. The doctor accused of medical negligence is not required to be arrested in a general manner because of a charge of negligence on him but he will be arrested only when his arrest is required for the collection of the evidence or until and unless the Investigating officer is of the opinion that the arrest is necessary in order to investigate and collect the evidence related to the case properly.[viii]

The abovementioned guidelines as stated by the Supreme Court clearly demarcated between the liability for negligence between the person practising a medical profession to the person practising any other profession. There cannot be initiation of a criminal proceeding against the doctor who is accused for the negligent act done by him. In order to initiate a case related to negligence against a medical professional there is a mandatory requirement of a preliminary enquiry to be conducted in order to check the genuinity of the complaint. This is done in order to avoid the harassment to the doctor who is not found to be carrying a negligent act in the due course of the trial of the case. The hospital administration in general is not held criminally liable for the acts done by the doctors who are employed by such hospitals. The administration of the hospital and the hospital will be liable only when there is any  kind of irregularity committed in the hospital which falls under the criterions laid down for deciding the criminal liability of the doctor or medical practitioners.

Determining Medical Negligence of the Doctors and Hospitals at the time of Covid-19

As the present condition of the outbreak of Covid-19 which is considered as a medical emergency due to the ill-effects of the outbreak of this virus and its implication on the health of the people and country at large. The Covid-19 was declared as a pandemic by the world health organisation due to its outbreak globally. In order to curb down the virus in India the medical facility initially was provided at the designated Covid-19 government hospitals by the Central Government. The Covid-19 patients were being handled, managed and transported by the government hospitals by the way of Standard Operating Procedures (SOP’s) issued by the Ministry of Health, Government of India. Although the medical practitioners and doctors have done a commendable job in handling the pandemic situation and hailed as “Corona Warriors” but there has been various reports which states that there has been violation of the SOP’s by the various government hospitals in the country while treating the patients’ in the kind of unavailability of oxygen cylinders, insufficient ventilators and unavailability of the doctors in the hospitals. These acts of the hospital has led to various deaths of the patients in the hospital due to the negligence of the doctors and the hospitals. Initially, at the starting of the nationwide lockdown only the government hospitals were designated to treat the patients diagnosed with the Covid-19 but later on the private hospitals were also designated for the treatment of the patients affected with Covid-19. Whether at the time of Covid-19 or post the outbreak of the Covid-19 the doctors/medical practitioner will be held liable for the act of negligence which has been carried out by them in some cases during the outbreak of the Covid-19.

While analysing the liability of the doctors and medical professionals at the time of Covid-19 it seems that majority of the patients were admitted to the government hospitals and the negligence has been mainly reported from the government hospitals. So, there is a minimal chance of the government hospital or the doctors being liable under the Civil or Criminal liability because as the government hospital provides service free of cost to these patients and is not covered under the scope of service as defined under the Consumer Protection Act, 1986 and Consumer Protection Act, 2019. Whereas the private hospitals can be held liable for any deficiency in service as they charge fees and are covered under the ambit of service under the Consumer Protection Act. When it comes to the criminal liability of the Doctors/hospital administration at the time of Covid-19 there is minimal chance of initiation of the criminal proceedings as there is a divergence of the medical opinion of various doctors related to the Covid-19 and even the SOP’s are changing gradually. So, there is a requirement of additional SOP and guidelines in order to determine the liability of the doctors/hospital administration during the Covid-19 and post Covid-19 era for the act of negligence by the concerned officials.

Conclusion

The medical profession is one of the noble profession in the society but in order to be effective there is a requirement to keep a check on the professionals to have effective service being provided by them. In order to do so there is an imposition of the Civil as well as criminal liability on the medical professionals.  Although every death is not caused by the negligent act of the doctors a death is inevitable and it occurs there should not be blame on the doctors for not able to save the life of a particular individual. The Consumer Protection Act and the various Supreme Court decision reiterate that the Consumer Protection act is enacted in order to provide social welfare legislation by protect in the rights of the common people. In order to have a prolonged effect in the favour of the consumer there is a requirement for the consumer law to be amended in order to the changing society to include the government doctors and hospital under the ambit of service of service under the Consumer Protection Act. Although a chance was there with the Parliament when the 2019 amendment which substitutes the Consumer Protection Act, 1986 with the Consumer Protection Act, 2019 but this has been neglected by the Parliament and the exact same definition has been put forwarded by the legislature while enacting the same. Thus there is a requirement for proper rules, regulations and principles in order to determine the medical negligence of a doctor or the hospital administration. In addition to the amendment of the Consumer Protection Act, there is requirement of establishment of fast track Courts in order to deal with the cases of Negligence in India in a time bound manner with an additional SOP or guidelines to be followed while dealing with a case related to medical negligence in order to keep a check on the medical profession and also to have an effective treatment by the doctors to the patients.

 

[i] Section 107 of the Consumer Protection Act, 2019.

[ii] AIR 2000 SC 3335.

[iii] (1996) 4 SCC 322.

[iv] AIR 1969 SC 128

[v] AIR 1996 SC 550

[vi] 1994(1) KLJ 782 (Ker. HC)

[vii] Jacob Mathews v. State of Punjab, MANU/SC/0457/2005.

[viii] Ibid.

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