In the Sunday Series today we bring to you a popular article from our archives where Prof (Dr). SV Joga Rao,an expert in Healthcare Law and Ethics throws light on important considerations of the Consumer Protection Act for practicing doctors in India.

With increasing number of medical negligence cases coming up in the courts, it becomes inevitable for doctors to be aware of the legal consequences.

The Government of India has enacted the Clinical Establishments (Registration and Regulation) Act, 2010 and Clinical Establishments (Central Government) Rules, 2012 for registration and regulation of the Clinical Establishments based on Minimum Standards to ensure standardized level of care. However, the Clinical Establishments (Registration and Regulation) Act, 2010 is applicable only in ten States and all Union Territories except Delhi at present.

Further, in order to regulate the conduct of doctors, the Medical Council of India (MCI), with the approval of the Central Government, has notified Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002. The appropriate authorities have been empowered to take disciplinary action against a doctor for violation of the provisions of the aforesaid Regulations.

The complaints related to medical negligence and deficiency of services can also be filed in District/State/National Consumer Disputes Redressal Forum under the Consumer Protection Act. Further, depending upon the nature of carelessness and criminal act, the relevant sections of Indian Penal Code/Criminal Procedure Code are also applicable.

Currently, the adjudication process is considering common law principles relating to negligence. While the rights of patients are important, the need for protecting doctors from unnecessary litigations is equally important.

Here, we ask Prof (Dr). SV Joga Rao, a Post-doctoral research scholar in Healthcare Law and Ethics, to shed light on the important pointers.

Q.1: What are the points to keep in mind about Consumer Protection Act by the practicing doctors?

According to the act, a consumer or patient can initiate action under COPRA seeking monetary compensation. Deficiency of service is the ground on which an aggrieved patient can initiate the proceedings. Second, a consumer who is an aggrieved party can file a complaint in either of the three Forums; before district forum if the claim is below Rs.20 Lakhs, before the State Commission if the claim is above Rs.20 Lakhs and below Rs.1 Crore, before National Commission, if the claim is above Rs.1 Crore. Hence a doctor should know about COPRA well.

Q.2: What are the powers of the consumer redressal forums?

The forums have a variety of powers. They are 1) the summoning and enforcing of the attendance of any defendant or witness and examining the witness under oath, 2) the discovery and production of any document or other material objects producible as evidence, 3) the reception of evidence on affidavits, 4) the summoning of any expert evidence or testimony, 5) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source, 6) issuing of any commission for the examination of any witness, and 7) any other matter which may be prescribed.

Q.3: When does the liability of a doctor arise?

The liability of a doctor arises not when the patient has suffered an injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He/she is liable for only those that are a consequence of a breach of his/her duty. Hence, once the existence of a duty has been established, the plaintiff must prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor. A typical example of a case where such a situation may arise is in the case of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor.

Q4: What is Judicial Interpretation of Medical Negligence Liability?

From the time of Lord Denning until now it has been held in several judgments that a charge of professional negligence against the medical professional stood on a different footing from a charge of negligence against the driver of a motor car. The National Commission, as well as the Apex Court in has held that the doctor is not liable for negligence because of someone else of better skill or knowledge, would have prescribed a different treatment or operated in a different way. The Hon'ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128, has held the above view that is still considered to be a landmark judgment for deciding a case of negligence. In the case of Indian Medical Association vs. Santha, the Apex Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient. Therefore, a Judge can find a doctor guilty only when it is proved that he has fallen short of the standard of reasonable medical care.

Q.5: Under what circumstances proof of Medical Negligence sustains in Courts?

It has been held in different judgments by the National Commission and by the Supreme Court that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is a known fact that even with a doctor with the best skills, things sometimes go wrong during medical treatment or in a surgery. A doctor is not to be held negligent simply because something went wrong. For instance, the Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969 held the below view which has been further confirmed in the case of the Indian Medical Association vs. Santha. It is was an admitted fact that the Complainant's eyesight was not restored after the operation conducted by the Appellant but this could not serve as ground for a doctor to be held negligent. Because, even after adopting all necessary precautions and care the result of the operation may not be satisfactory since it depends on various other factors. The contention of the Appellant was that the patient was suffering from diabetes and blood pressure and in many such cases, eyesight is not restored after the operation however carefully it is done. In this case, there is nothing on record to show that something went wrong due to an act of the Appellant-doctor. There is no evidence to come to the conclusion that the Appellant fell below the standard of a reasonably competent practitioner in their field, so much so that their conduct might be deserving of censure. The Appellant cannot be liable for negligence because someone else of better skill or knowledge would have prescribed a different method of operation.

Q.6: Could you bring more clarity on the issue by a landmark Supreme Court judgment?

The recent judgment pronounced in Martin F. D'Souza vs. Mohd. Ishfaq by the Supreme Court of India quite explicitly addresses the concerns of medical professionals regarding the adjudicatory process that is to be adopted by Courts and Forums in cases of alleged medical negligence filed against Doctors.

In March 1991, the Respondent who was suffering from chronic renal failure was referred by the Director of Health Services to the Nanavati Hospital in Mumbai for the purpose of a kidney transplant. At that stage, the Respondent was undergoing hemodialysis twice a week and was awaiting a suitable kidney donor. On May 20, 1991, the Respondent approached the Appellant doctor with a high fever, but he refused hospitalization despite the advice of the Appellant. On May 29, 1991, the Respondent who still had a high fever finally agreed to get admitted to the hospital due to his serious condition. On June 3, 1991, the reports of the urine culture and sensitivity showed a severe urinary tract infection due to Klebsiella species (1 lac/ml) sensitive only to Amikacin and Methenamine Mandelate. Methenamine Mandelate cannot be used in patients suffering from renal failure. Since the urinary infection was sensitive only to Amikacin, an injection of Amikacin was administered to the Respondent for 3 days (from June 5, 1991, to June 7, 1991). Upon treatment, the temperature of the Respondent rapidly subsided. On June 11, 1991, the Respondent who presented to the hemodialysis unit complained to the Appellant that he had slight tinnitus (ringing in the ear). The Appellant has alleged that he immediately told the Respondent to stop taking the Amikacin and Augmentin and scored out the treatment on the discharge card. However, despite express instructions from the Appellant, the Respondent continued taking Amikacin until June 17, 1991. Thereafter, the Respondent was not under the treatment of the Appellant. On June 14, 1991, June 18, 1991, and June 20, 1991, the Respondent received hemodialysis at Nanavati Hospital and allegedly did not complain of deafness during this period. On June 25, 1991, the Respondent, on his own accord, was admitted to Prince Aly Khan Hospital. The Complainant allegedly did not complain of deafness during this period and conversed with doctors normally, as is proved from evidence. On July 30, 1991, the Respondent was operated upon for a transplant and on August 13, 1991, the Respondent was discharged from Prince Aly Khan Hospital after his transplant. The Respondent returned to Delhi on August 14, 991 after his discharge.

On July 7, 1992, the Respondent filed a complaint before the National Consumer Disputes Redressal Commission, New Delhi claiming compensation of an amount of Rs.12,00,000/- as his hearing had been affected. The Appellant filed his reply stating, inter alia, that there was no material brought on record by the Respondent to show any co-relationship between the drugs prescribed and the state of his health. The National Consumer Disputes Redressal Commission passed an order on October 6, 1993, directing the nomination of an expert from the All India Institute of Medical Sciences, New Delhi (AIIMS) to examine the complaint and give an unbiased and neutral opinion. AIIMS nominated Dr. P. Ghosh was of the opinion that the drug Amikacin was administered by the Appellant as a life-saving measure and was rightly used. It is submitted by the Appellant that the said report further makes it clear that there has been no negligence on the part of the Appellant. However, the National Commission has come to the conclusion that the Doctor was negligent.

This article was originally published on January 25, 2018.

Prof (Dr). Sripada Venkata Joga Rao, a Post-doctoral Research Scholar in Healthcare Law and Ethics is presently anchoring the professional activities of Legalexcel – a Law Firm of Advocates, Solicitors and Healthcare Consultants. He has served as founding Faculty Member for about 15 years in the premier National Law School of India University, Bengaluru.

Disclaimer-The information and views set out in this article are those of the author(s) and do not necessarily reflect the official opinion of M3 India. Neither M3 India nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein.