Meaning of medical negligence
Medical negligence can be defined as a breach of duty of care by a medical practitioner which results in foreseeable injury to the patient. The Supreme Court of India in Laxman Balkrishna Joshi v. Trimbak Bapu Godbole & Anr explained the concept of medical negligence. A medical practitioner impliedly pledges to possess skills and knowledge to give medical advice and treat patients. The duties of the medical practitioner towards its patient include a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and duty of care in the administration of that treatment. Breach of any of these duties amounts to medical negligence.
The law requires a medical practitioner to undertake a reasonable degree of care, which is determined on a case-to-case basis. The Supreme Court in Jacob Mathew v. State of Punjab & Anr reiterated that a medical practitioner should have knowledge which an ordinary medical professional would hold. He should know about new advances, discoveries and developments in the field of medicine. He should be aware and alert of the hazards and risks in professional tasks. Therefore, the standard of care required is that a medical practitioner has the skill, expertise and care that any other ordinary medical professional would possess. However, an error of judgment does not amount to medical negligence.
Following legal recourses are available in case of medical negligence.
Disciplinary action under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
Disciplinary action can be initiated against a registered medical practitioner on the ground of professional misconduct. Chapter 7 of the Regulations, 2002 enumerates a non-exhaustive list of acts that amount to professional misconduct. Professional misconduct is a wider concept than medical negligence. The breach of duty of care is the essence of medical negligence. On the contrary, violation of any provision of the Regulations, 2002 amounts to professional misconduct. Therefore, practising euthanasia amounts to misconduct but when a medical practitioner who is entitled to practice in only Homeopathy prescribes allopathic medicine amounts to medical negligence and misconduct.
The process for disciplinary action can be initiated by registering a written complaint with the respective State Medical Council (SMC). Then, the SMC will conduct an inquiry and give the medical practitioner opportunity to be heard. If the medical practitioner is found guilty, it can be punished by the removal of its name from the register of medical practitioner, either permanently or for a specified time. If the SMC fails to deliver the decision within six months, the Medical Council of India (MCI), may impress upon the SMC to conclude the complaint or refer the complaint to the Ethical Committee of the Council.
An appeal against the decision of the SMC can be filed in the MCI within sixty days from the date of receipt of order passed by the SMC. Any delay in filing appeal can be condoned for another sixty days if the MCI is satisfied that delay was caused due to sufficient cause. The appeal can be registered online at-
https://mciindia.org/ActivitiWebClient/open/initiateEthicsHome.
Civil suit for medical negligence
Civil liability for medical negligence may arise under tort law or consumer protection law. The key difference between the two options is that under the Consumer Protection Act, 2019 (CPA) a complaint can only be filed for paid medical services but a civil suit can be initiated for free of cost services as well. If the medical practitioner is found liable for medical negligence under tort law or consumer protection, compensation will be awarded to the complainant. The medical practitioner cannot be imprisoned under a civil suit.
The procedure prescribed under the Code of Civil Procedure, 1908 will be followed in case of medical negligence under tort law. A civil suit will be initiated by filing a plaint in the appropriate civil court followed by the issuance of summons to the defendant to appear in court and file a written statement. Then documents filed by both parties will be either admitted or denied. Next, issues are framed by court. Subsequently both the parties file evidence and submit final arguments. Finally, the court decides the case. An appeal against the decree of court can be preferred to the court authorised to hear appeals. Lastly, the execution of the decree takes place to enforce the decree.
CPA, 2019 is special legislation to protect the interest of consumers. Under CPA, 2019 ‘consumer’ is a person who buys any goods for consideration or hires or avails any service for a consideration. Under CPA 2019, a complaint regarding deficiency of service can be filed against medical negligence. The complaint can be filed by consumer, registered voluntary consumer association, government, Central Authority, legal representative or legal heir of a deceased consumer and parent or guardian of a minor consumer.
The complaint about medical negligence can be filed in writing or electronic mode. The complaint can be filed on the National Consumer Helpline (NCH) website (https://consumerhelpline.gov.in/) which provides the grievance redressal system. The complaint about medical negligence can be filed in District Commission (where consideration paid does not exceed one crore rupees) or in State Commission (where consideration paid does not exceed ten crore rupees) or in National Commission (where consideration paid exceeds ten crore rupees). The admission of the complaint has to be decided within twenty-one days. After the admission of the complaint, the Commission may refer the dispute for mediation.
The Commission shall decide the complaint within three months from receipt of the notice. Once the Commission is satisfied that medical practitioner is liable for medical negligence, it can award compensation including punitive damages, order removal deficiency in service (if possible) and provide costs to parties. All three Commissions have the power to review their order. The application for judicial review can be filed within thirty days of such order. An appeal against the order of the District Commission can be referred to State Commission within forty-five days from the date of such order. An appeal against the order of State Commission can be referred to National Commission with thirty days from the date of such order. The appeal shall be disposed of within ninety days from its admission.
Criminal liability under Indian Penal Code, 1860 (IPC)
A medical practitioner can be held guilty for medical negligence for causing death by negligence (section 304A, IPC), doing act rashly or negligently as to endanger life (section 336, IPC), causing hurt (section 337, IPC) and causing grievous hurt (section 338). The punishment for these offences includes imprisonment for a term extending from three months to two years and fine. To initiate a criminal case, the first information report (FIR) has to be registered under relevant provisions. The procedure prescribed under the Criminal Procedure Code, 1973 will be followed.
The critical aspect of a criminal case is to establish mens rea. To establish criminal liability, a higher degree of negligence is required than that in civil suits. Criminal rashness has to be of such a degree as to amount to taking a hazard knowing that injury was most likely imminent. Criminal negligence occurs when the accused runs an act recklessly without giving relevance to the consequences. A simple lack of care does not amount to criminal negligence. For criminal negligence, it has to be proved, beyond all reasonable doubts, that negligence was culpable or gross. Since it is difficult to hold a medical practitioner guilty of criminal negligence, civil suit and disciplinary action are preferred in case of medical negligence.
This article is written by Priyanshee Mathur, LLM Commercial and Corporate Law at Queen Mary University of London.
Also Read – Stages of Civil Suit Under Civil Procedure Code, 1908
