Introduction
The relationship between a doctor and his patient is considered to be sacred in India. When a patient submits himself to a doctor possessing a set of special skills and knowledge, then the doctor owes a duty to the patient to use due caution while undertaking the treatment. In case the doctor is willfully negligent to exercise due caution to harm the patient in any manner, the patient has the right to seek redressal in various forms, depending upon the case.
With the rise of consciousness among people about their rights, not only civil suits are filed but grievances are addressed under the Consumer Protection Act, 1986 for the ‘deficiency in services’. The complaints are also filed under the Indian Penal Code, 1860 giving rise to criminal liability thus, clearly demarcating the duties and liabilities of medical practitioners.
Negligence under Tort
Medical negligence may be defined as the failure of a medical practitioner to provide proper care and attention in exercise of those skills which a prudent and qualified person would do under similar circumstances, resulting in damage to the patient. Negligence under the law of tort arises when there is a legal duty to exercise care. A legal duty is different from moral, religious, or social duty. Therefore, to claim damages, the plaintiff needs to establish that there existed a legal duty of care. Furthermore, it is essential that the damage is the direct result of the act or omission on the part of the medical profession and is not remotely related to it.
The essentials of negligence include:
- Duty of care
- Breach of duty
- The direct and proximate cause of damage
- Damage
The onus is on the plaintiff to prove that the doctor was negligent in the performance of his duties and the damage was the direct consequence of such negligence. Under civil law, the law of torts takes over at the point where the Consumer Protection Act ends, protecting the interest of the patients. This implies that even if the doctor or the hospital provides services free of charge, hence not falling under the definition of ‘service’ under Consumer Protection Act, the patient can file a case under the law of tort in civil court and claim compensation.
Under civil law, the hospital can also be held vicariously responsible for the act of negligence for its employees. Vicarious liability arises when the employee is negligent in the course and scope of his employment. The Madras High Court in the case of Aparna Dutta vs. Apollo Hospital Enterprises Ltd.[1] held that the terms under which the hospitals employ the doctor are between the hospital and the doctor. The hospital cannot be absolved of liability because it is the hospital that provides the services to the patients. Hence, in case of any deficiency of services, the hospital has to be held vicariously liable for the negligent act of the doctor done in the course and scope of his employment.
Negligence under Criminal Law
It is argued that jurisprudentially, it is difficult to distinguish between negligence amounting to civil liability than that giving rise to the criminal offense. To attract criminal liability, the degree of negligence has to be significantly higher than the negligence which causes civil liability. Generally, it is the extent of damages that determine the liability under civil law but under criminal law, it is not the extent of damages but the degree of negligence that is the determinant of liability. Furthermore, the essential ingredient of mens rea (criminal intent) also needs to be taken into consideration.
The sections under the Indian Penal Code, 1860 relevant to medical negligence are as follows:
Section 304-A: “Causing death by negligence” – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or both.
Section 337: “Causing grievous hurt by act endangering life or personal safety of others”- whoever causes grievous 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 of term which may extend two years, or with fine which may extend to one thousand rupees, or with both.
Section 338: “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 liberty 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.
In the case of Dr. Suresh Gupta vs. Government of NCT of Delhi[2], the bench faced extreme difficulty in weighing the degree of negligence alleged on the part of the doctor to determine whether the liability was of civil or criminal nature. Mere lack of proper care, precaution, or attention calls for civil liability, but not a criminal one. The Supreme Court felt that criminal prosecution brings a lot of embarrassment to the doctors. Therefore, extreme caution and reason should be exercised before initiating a criminal complaint. The Apex Court in this regard held that a private criminal complaint cannot be entertained unless there is a prima facie evidence of his negligence in the form of credible opinion from another competent doctor, preferably involved in government service in the same field of medicine.
Negligence under Consumer Protection Act, 1986
In the landmark case of Indian Medical Association vs. V.P. Shantha and Ors.[3], the question of whether the services provided by a doctor to the patient comes within the ambit of “services” under Section 2(1)(o) of the Consumer Protection Act, 1986 was raised. In this case, the medical professionals claimed the relationship between a doctor and his patient is similar to a master-servant relationship, which is a result of ‘contract of personal service’ and should be exempted from liability under CPA. Rejecting the claim, the Supreme Court laid down that a doctor is like an independent contractor who is hired to perform a specific task. The master (patient) determined what is to be done and when. However, the “how” is left to the discretion of the doctor. Therefore, the services provided by a doctor or a hospital comes under the preview of CPA, wherein any deficiency in the services may result in liability to pay damages. However, it must be noted that any services rendered free of charge by a medical practitioner are excluded from the said act. Medical Negligence Case
To claim damages for Medical Negligence Case under the Consumer Protection Act, the aggrieved party[4] may file a complaint in the district forum where the value of services and the compensation, if any, claimed does not exceed rupees twenty lakhs.[5] Appeals against the orders the district forum may be filed in the State Commission within thirty days from the date of the order.[6]
In case the value of services and compensation claimed exceeds rupees twenty lakhs but does not exceed rupees one crore, then the complaint may be filed in the State Commission.[7] Appeals against the order of the State Commission may be filed in the National Commission within thirty days from the said order.[8]
When the value of services and compensation, if claimed exceeds rupees one crore, then the complainant may file a complaint in the National Commission[9]. The appeal against the order may be filed in the Supreme Court within thirty days from the said order.[10]
Conclusion
From a legal perspective, the law on medical negligence has evolved significantly over a period of time. When the services are provided free of charge, the negligence on the part of the medical practitioner may give rise to tortious liability. The case may be filed in the civil court and damages would be awarded accordingly. In case there is “gross” negligence, essentially coupled with the element of ‘mens rea’, a criminal offense may be established under the Indian Penal Code, 1860. In addition, if the services provided come under the ambit of the Consumer Protection Act, 1986 the aggrieved party may seek redressal of an appropriate consumer protection forum established under the said act and claim compensation.
[1] 2002 ACJ 954 Mad. HC
[2] 2004 6 SCC 42
[3] 1995 6 SCC 651
[4] Herein, the complainant or the consumer as defined under Section 2(1)(b) or 2(1)(d) respective of the Consumer Protection Act, 1986.
[5] Section 11(1) of Consumer Protection Act, 1986.
[6] Section 15 of Consumer Protection Act, 1986.
[7] Section 17(a)(i) of Consumer Protection Act, 1986.
[8] Section 19 of Consumer Protection Act, 1986.
[9] Section 21(a)(i) of Consumer Protection Act, 1986.
[10] Section 23 of Consumer Protection Act, 1986.
This article is authored by Arushi Gupta, 5th Year Student of BA. L.L.B at DES Law College, Pune University.
Also Read – Medical Negligence: An Overview of Its Consequences.
