Surgery of medico legal mal practice

Enactment of Consumer Protection Act, 1986, increased privatization of Health care system, role of media has increased public awareness of medical negligence in India which has subsequently caused increasing number of patients filing lawsuits against doctors. It all started with Justice Balakrishna Erade ruling on April 21, 1992 that medical services are covered under Consumer Protection Act apart from civil & criminal negligence laws which were already present. The ruling was then upheld by three-bench judge of Supreme Court on November 13, 1995. Medical malpractice occurs when a healthcare professional harms a patient during the course of treatment. However for this harm to constitute a claim, it must be considered medical negligence.

Essentials to establish  Medical negligence –

Establishing a duty of care on part of doctor between patient and a doctor

Showing that the duty of care has been breached in any way.

Showing a causal link between breach of duty and harm

Showing the harm was suffered due t o breached duty on part of doctor (or negligent behavior on part of doctor)

Proving that harm caused to the patient is directly attributable to the doctor is the root problem in many medical negligence judgements. However in certain situations, breach of duty by the doctor is self-evident called as Res Ipsa Loquitur. Here, the patient does not have to prove the harm caused by doctor. For example, leaving sponges or instruments in the body during operation or operating on a wrong patient.

Alan Merry and Alexander McCall Smith in their work “Errors, Medicine and the Law” (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. However, it is well-known that even the best professionals what to say of the average professional, sometimes have failures. If there is No cure, it is not negligence. If there is any mistake or mischance, it is the common tendency to blame the doctor for negligence Consumer Protection Council, TN vs Tiruchi Speciality hospital. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis Malay Kumar Ganguly vs. Sukumar Mukherjee (Dr.) & Ors. III (2009) CPJ 17 (SC).

From the Doctor’s point of view

Doctors were staunchly against the Consumer Protection Act (CPA) since it’s inception and wanted Amendments for the following reasons –

Judges can’t understand the technical nature of medical cases (Even if doctor tries his best, he may not prevent death due to a sudden Cardiovascular collapse during general anesthesia. Judge may consider this as negligence). One of the criteria for selection of Judge according to CPA,1986 is – “adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration”. Judges appointed may not have any experience related to medical cases.

Medical service is not a commodity.

Kangaroo courts – where recognized standard of justice is disregarded. As in V. Kishan Rao Vs. Nikhil Super Specialty Hospital, III (2010) CPJ 1(SC) the Court held, “It is not necessary to have opinion of the expert in each and every case of medical negligence.”

Handing out a judgement without an expert opinion is gross injustice.

Negligible court fees & stamp duty means increase in frivolous cases. In Ramesh Kumar vs Saxena multi-speciality hospital the complainant prayed for a compensation of Rupees Six Crores thirty lakhs, sixty thousand only (The end result was zero compensation). This issue is echoed multiple times by Judges themselves, like in Kusum Sharma And Ors. vs Batra Hospital & Medical Research, the Bench said – “CPA complaints against doctors are on the rise and in many cases these being frivolous”. Read more at Times of India article – Consumer Act not meant to instil fear in doctors: SC

Doctors won’t treat serious cases, instead refer them to Government hospitals where Consumer Protection Act isn’t applicable. Critics say that, these hospitals are kept out of CPA’s ambit to hide Government’s inefficiency in improving them.

To be on a safer side, doctors would start prescribing unnecessary investigations, referrals, increased hospitalization.

The medical profession was brought under CPA for providing speedy redressal to patient’s complaints but it failed at many fronts. The points raised by Medical community weren’t taken into consideration, the views of consumer activists (with no medical background) were given preference. Even the rule of filing the case within 2 years of occurrence is rarely followed. The Act has just benefited lawyers and Insurance companies. Doctors have to buy personal indemnity now and the premiums are skyrocketing. In Jacob Mathews vs State of Punjab, the court noticed that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. To safeguard them from undue pressure & harassment, the court laid some guidelines until new rules are framed by the Government. It’s altogether a different thing, that even these guidelines aren’t followed properly.

In a landmark judgement of Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005 the court states that –

 (i) Mere deviation from normal professional practice is not necessarily evidence of negligence.

 (ii) Mere accident is not evidence of negligence

 (iii) An error of judgment on the part of a professional is not negligence per se.

 (iv) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable by applying the doctrine of res ipsa loquitor.

 (v) Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an intended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated. Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with cause of negligence.

 (vi) Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society.

 (vii) To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.

Conditions to be fulfilled before taking cognizance:-

A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence.

The investigating officer before proceeding against the doctor, should obtain an independent and competent medical opinion preferably from a doctor in government service.

A doctor accused of rashness or negligence, may not be arrested in a routine manner.

Unless his arrest is necessary for furthering the investigation or for collecting evidence, arrest should be withheld.

Reasons behid medico legal litigation:-

Due to no limits imposed, petitioners have always demanded absurd & inflated compensations.

 In Kumari Sangita Tukaramji Rokde vs. Union of India and Ors., the complainant prayed for compensation of Rupees Five Hundred Crore, wherein Hon’ble Mr. Justice J. M. Malik has made following observations:

Due to no limits imposed, petitioners have always demanded absurd & inflated compensations.

 In Kumari Sangita Tukaramji Rokde vs. Union of India and Ors., the complainant prayed for compensation of Rupees Five Hundred Crore, wherein Hon’ble Mr. Justice J. M. Malik has made following observations:

For the meagre sum of about Rs.500/-, she is claiming Rs.500 crores, as compensation. This Commission, under the Consumer Protection Act, 1986, is a summary court. The examination of witnesses and their cross-examination is not permissible as such.

In another case, petitioner demanded 1 crore for time loss and loss of professional prospects of his daughter and another 3.5 crores rupees for mental agony caused to the family. To which the Judge replied –

Quantum of compensation appears to be just hypothetical and illusionary. We do not see any justification in such prayer. At most, the Complainant incurred expenditure of around Rs.2 to 3 lakhs, but is seeking hefty compensation of Rs. 6.3 crores

 The horror of inflated compensation is faced not just by doctors but by every professional due to the flawed Consumer Protection Act. Such stupid sum of money has never been converted into reality but the mental trauma that alleged doctor faces can’t be measured in monetary terms.

Yet  as provided in America and other developed countries in  India also there is a limitation of two years to file the complaint

There are several laws in India in favor of the consumers but it have been often noticed that the relatives and  friends of the patients also malhandle the doctors, break through the hospitals and  due to all the hue and cry the patients suffer the most, neither is there any such special provision nor any specific law under which the hospital, doctors and the patients could recover from the mob.  There are several precautions and steps which should be taken by  the doctors and hospitals …………….??????

  We mut be proud that we are citizens of a democratic country but still there are many milestones to cover.