Negligence by medical practitioners has been considered a more serious breach than ordinary negligence in the eyes of law as they deal with human life. In a time when society is in the holds of a novel virus impacting every aspect of life as we know it, and more and more people are needing to avail medical facilities while doctors are under severe pressure, this article aims to give an overview of what is medical negligence and what are the liabilities of medical practitioners in India and of Hospitals. A part of the article also deals with what may become of these laws in cases of negligence while treating corona virus cases.
Negligence is an omission to do something which a reasonable man, guided upon those consider-ations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. [Salmond, Law of Torts, Sweet and Maxwell, 1977]. However, medical negligence has more specific aspects to it. In a recent judgment of the Su-preme Court, medical negligence was defined as follows:
“Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the ne-glect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be ap-plied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient.” [Maharaja Agrasen Hospital v. Master Rishabh Sharma 2019 SCC OnLine SC 1658, referring to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR 206 : AIR 1969 SC 128; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri) 1127 : (2010) 1 SCC (Civ) 747].
In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. [Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330].
From this comprehensive definition given by the Apex Court, it emerges that in claims of action-able negligence:
(i) there must be a duty of care upon the medical practitioner
(ii) that duty is breached
(iii) the breach is due to neglect in exercising a reasonable degree of skill and knowledge to the patient
(iv) patient suffers an injury as a result of that neglect.
Thus, medical negligence is a breach of duty of care by the medical practitioner due to ne-glect in exercising reasonable care, resulting in injury to the patient.
The case of Indian Medical Association v. V. P. Shantha [(1995) 6 SCC 651] was a landmark judgment in the year 1995 through which the Supreme Court brought the medical profession within the ambit of a “service” [Section 2(1)(o)] as under the Consumer Protection Act, 1986. Since then, the provisions of the Consumer Protection Act apply and cases of medical negligence can be filed before the Commissions under the Act by patients and their relatives, who fall within the definition of “consumer” under Section 2(1)(d) of the Consumer Protection Act.
Aggrieved parties, through provisions of the Act can now approach:
• District Forums: Medical negligence cases of up to Rs. 25 lakh are filed here as part of its original jurisdiction.
• State Consumer Redressal Forum: Medical negligence cases of up to Rs. 1 crore are filed here as part of its original jurisdiction. It also has appellate jurisdiction over cases coming in appeal from the district forums within its jurisdiction.
• National Commission: Medical negligence cases of claims over Rs. 1 crore are filed here as part of its original jurisdiction. It has appellate jurisdiction over cases coming in appeal from all the state forums. The Consumer Protection Act is to protect “consumers”, and is thus applicable only to medical services being provided to consumers, not applicable in cases where medical aid is rendered free of charge. However, this does not mean that a person who does not have the capacity to pay will not be protected. To clarify this, consider this example: X is a private hospital in a locality. Y is an organization providing pro-bono basic medical aid to people. Hospital X is covered by the Consumer Protection Act, but Organization Y that gives free services is not. Further, A is a person of limited means who avails the facilities of Hospital X when he meets with an accident, is unable to pay the cost of treatment, and is treated negligently during that pe-riod. Person A can sue Hospital X under the Consumer Protection Act even if he did not pay for the medical service. Thus, cases in which medical services are offered for a charge/fee, leading to negligence by practitioners, may be brought before the consumer dispute redressal forums.
Civil Negligence: The Consumer Protection Act can only protect consumers availing a medical service. However, a wider protection is offered under the law of torts against all forms of medi-cal negligence, even if the same are being rendered free of charge. The onus, as is the aforementioned general principle, lies on the patient to prove that the doctor was negligent and that the injury was a consequence of the doctor’s negligence. [Philips India Ltd. v. Kunju Pannu AIR 1975 Bom. 306].
Criminal Negligence: In cases of blatant negligence and utter disregard of duty of care, ag-grieved parties may want to file a criminal complaint against the medical practitioners. A doctor can be punished under the Indian Penal Code for causing death by a rash or negligent act [See Section 304A]. However, to hold a doctor criminally liable under this Section, the level of negli-gence should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care. [See Suresh Gupta (Dr) v. Govt. of NCT of Delhi (2004) 6 SCC 422].
Under the Indian Penal Code, medical negligence is also criminally actionable for the following reasons:
• If the doctor acts in “bad faith”, without due care or attention [S. 52, IPC]
• In case of an act likely to cause harm, but done without criminal intent, and to prevent other harm, it is a question of fact whether the harm to be prevented or avoided was of such a na-ture and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm, by a medical practitioner. [S. 81, IPC]
• A medical procedure done in good faith and with no intent to cause death, with consent of the patient, but which is an illegal procedure, will make the practitioner liable [S. 88 r/w S. 91, IPC]
• Rash or negligent act endangering the life or causing hurt to a person [Ss. 337, 338, IPC]
A well accepted standard of care has been defined in the Halsbury’s Laws of England, stating:
“To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of rdinary skill would have taken had he been acting with or-dinary care.” [See Halbury’s Law of England, 4th Edition, Vol.30, Para 35].
The famous Bolam’s Test, setting the standard in the case of Bolam v. Friern Hospital Manage-ment Committee [1957) 2 All ER 118] states that:
“the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercis-ing that particular art…
…he [a Doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”. The Bolam test thus laid a minimal standard of care as was being practiced at the time, and was widely accepted as decisive of the standard of care required by medical practitioners, and was invariably cited with approval before the courts in India for a long period. [See Jacob Mathew v. State of Punjab, (2005) 6 SCC 1].
However, in recent times, the test is being disregarded internationally, while countries aim for a higher standard of care, aiming at not just a basic level of care but while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care. [See Rogers v. Whitaker (1992) 109 Aus LR 625: HCA 58; see also Bolitho v. City and Hackney Health Authority (1997) 4 All ER 771 (HL)].
Even the Courts of India have moved accordingly to determine on a case by case basis after analysis by the Court, what would be the reasonable standard of care, and the Supreme Court has called for reconsideration of the Bolam Test and evolve the standards in accordance with deci-sions of recent years. [V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513].
Thus, the standard of care is no longer the accepted practice at a time, but a higher stand-ard of reasonable care in each case, to be determined by the Court upon examination of all factors.
Hospitals can be held vicariously liable for the actions of its employees on many grounds. It is, in fact, a common trend among courts to hold hospitals vicariously liable for the actions of its staff. The NCDRC made a critical holding in a case that hospitals have to own up to the conduct of their employees; they cannot escape liability by mere statement that it only provided infrastruc-tural facilities, services of nursing staff, supporting staff and technicians. [Rekha Gupta v. Bom-bay Hospital Trust & Anr., 2003 (2) CPJ 160 (NCDRC)].
The state can also be held vicariously liable for the negligent actions of its medical practitioners. [See Smt. Santra v. State of Haryana & Ors [(2005) 5 SCC 182; Achutrao & ors v. State of Maharashtra & Ors [JT 1996(2) SC 664].
It is the hospital that is considered to be offering the medical service, and all its staff, including independently operating doctors who take all decisions within the set up, are considered to be part of the hospital in the services they perform. [Joseph alias Pappachan v. Dr. George Moonjerly [1994 (1) KLJ 782 (Ker. HC); Aparna Dutta v. Apollo Hospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)].
This principle is reiterated in a judgment of the Supreme Court recently:
“It is well established that a hospital is vicariously liable for the acts of negligence com-mitted by the doctors engaged or empanelled to provide medical care. It is common expe-rience that when a patient goes to a hospital, he/she goes there on account of the reputa-tion of the hospital, and with the hope that due and proper care will be taken by the hos-pital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.” [Maharaja Agrasen Hospi-tal v. Master Rishabh Sharma, 2019 SCC OnLine SC 1658]
Thus, hospitals and medical institutions, including the ones owned by the state, are vicari-ously liable for the negligent actions of all its medical practitioners.
Standard of Care for Corona Patients: In a virus which is novel with no known treatment, it is extremely difficult to determine the standard of care and decipher negligence. The standard that courts can hold the doctors to in these cases at the minimum would be reasonable efforts and care being provided, and at a maximum could be as high as trying to inculcate the internationally accepted best practices in the treatment of this novel virus.
Liability in cases of malpractice while treating COVID patients: The government has speci-fied norms and guidelines for how these cases are to be treated. So long as hospitals, both gov-ernment and private, observe these measures, this should be safe from liability. Following is a brief of the main guidelines with links to the government orders to be followed:
• The guidelines is for health care workers and others working in Non COVID hospitals and Non-COVID treatment areas of a hospital which has a COVID block state what is the level of protective equipment medical personnel have to wear in different wings and ambulances, de-pending on whether their area of work falls within mild, moderate or high risk. [See the com-plete guidelines at https://www.mohfw.gov.in/pdf/AdditionalguidelinesonrationaluseofPersonalProtectiveEquipmentsettingapproachforHealthfunctionariesworkinginnonCOVIDareas.pdf
• Quarantine facilities have their own guidelines requiring evaluation of potential sites, risk as-sessment, securing entry and exit, coordination, monitoring, supervision and daily reports, along with specific directions on how to manage and contain those sites [See the complete guidelines at https://www.mohfw.gov.in/pdf/90542653311584546120quartineguidelines.pdf.
• For transportation of suspected cases, there should be ambulances identified specifically for transporting COVID suspect patients or those who have developed complications, to the health facilities. Currently, there are two types of ambulances – ALS (with ventilators) and BLS (without ventilators). States may empanel other ambulances having basic equipment like that of BLS and use it for COVID patients. However, this must be ensured that strict adherence to cleaning and decontamination protocols given here in the guidance note need to be followed. The fleet in - charge or person designated by CMO/CS, will supervise its adherence. [See the complete guidelines at https://www.mohfw.gov.in/pdf/StandardOperatingProcedureSOPfortransportingasuspectorconfirmedcaseofCOVID19.pdf.
• Providing essential services for all areas include reproductive, maternal, new-born and child health, prevention and management of communicable diseases, treatment for chronic diseases to avoid complications, and addressing emergencies, is necessary and guidelines have been is-sued for ensuring reorganization of service delivery, mapping areas of delivery, carrying out the same while observing social distancing, optimizing home visits and using alternate methods of outreach for services [See the complete guidelines at https://www.mohfw.gov.in/pdf/EssentialservicesduringCOVID19updated0411201.pdf.
• It shall be mandatory for all hospitals (Government and Private), Medical officers in Govern-ment health institutions and registered Private Medical Practitioners including AYUSH Practi-tioners, to notify such person(s) with COVID-19 affected person to concerned district sur-veillance unit. All practitioners shall also get the self-declaration forms (enclosed), who, within their knowledge, are having travel history of COVID-19 affected countries as per the extant guidelines and are falling under the case definition of COVID-19 (Suspect/Case). [See the complete guidelines at https://www.mohfw.gov.in/pdf/GuidelinesfornotifyingCOVID-19affectedpersonsbyPrivateInstitutions.pdf
• In case of positive cases appearing among hospital staff, the institution must not shut down. All health facilities (HCF) must have a staffing plan in place including a contingency plan for such an event to maintain continuity of operations. [See the complete guidelines at https://www.mohfw.gov.in/pdf/GuidelinestobefollowedondetectionofsuspectorconfirmedCOVID19case.pdf
***In case of any difficulty in understanding the above guidelines or need for clarification, please reach out to the offices of Aura & Co, at ____.
Immense Rise in Cases - Standards if the Situation Gets Worse: The novel coronavirus is ex-tremely potent, and has spread rampantly even in a state of lockdown. This implies that India, most likely, is yet to see the full extent of its wrath. With limited infrastructure and facilities and no cure in sight, a population of 1.3 billion will lead to a chaotic situation of the virus continues to spread at the present rate. Therefore, Courts may not be able to enforce the standards at that time for sheer reasons of incapability of providing adequate medical service to all patients, due to lack of resources. It is thus, essential, that every precaution be taken to contain the spread of the virus.
Counter-Protection to Medical Personnel in times of COVID: The government of India has provided a necessary protection to doctors as well as a consequence of violent acts against them in recent times. The Epidemic Diseases (Amendment) Ordinance, 2020 [Act 5 of 2020], prom-ulgated on April 22, 2020 is aimed at protecting healthcare service personnel from acts of vio-lence.
The Ordinance has defined an “act of violence” to include the following acts against healthcare personnel:
(i) harassment impacting living or working conditions,
(ii) harm, injury, hurt, or danger to life,
(iii) obstruction in discharge of his duties, and
(iv) loss or damage to the property or documents of the healthcare service personnel. [S. 3, Epidemic Diseases (Amendment) Ordinance, 2020, inserted as S. 1A(a) in the principal Act] It defines healthcare service personnel as a person who is at risk of contracting the epidemic disease while carrying out duties related to the epidemic. They include: (i) public and clinical healthcare providers such as doctors and nurses, (ii) any person empowered under the Act to take measures to prevent the outbreak of the disease, and (iii) other persons designated as such by the state government. [S. 3, Epidemic Diseases (Amendment) Ordinance, 2020, inserted as S. 1A(b) in the principal Act]. Property is defined to include a: (i) clinical establishment, (ii) quarantine facility, (iii) mobile medical unit, and (iv) other property in which a healthcare service personnel has direct interest, in relation to the epidemic [S. 3, Epidemic Diseases (Amendment) Ordinance, 2020, inserted as S. 1A(c) in the principal Act].
The Ordinance specifies that no person can commit or abet the commission of an act of violence against a healthcare service personnel, or abet or cause damage or loss to any property during an epidemic. Contravention of this provision is punishable with imprisonment between three months and five years, and a fine between Rs 50,000 and two lakh rupees. [S. 6, Epidemic Diseases (Amendment) Ordinance, 2020, inserted as S. 3(2) in the principal Act]. On committing an act of violence on a medical personnel resulting in grievous hurt as defined u/s 320 IPC, there shall be imprisonment from 6 months to 7 years, and fine of Rs. 1 lakh to Rs. 5 lakh. [S. 6, Epidemic Dis-eases (Amendment) Ordinance, 2020, inserted as S. 3(3) in the principal Act]. In addition to the punishment and fine provided for these acts, the convicted person must also pay compensation as determined by the court, to the impacted healthcare personnel [S. 7, Epi-demic Diseases (Amendment) Ordinance, 2020, inserted as S. 3E(i) in the principal Act]. These are cognizable and non-bailable offenses [S. 7, Epidemic Diseases (Amendment) Ordinance, 2020, inserted as S. 3A(i) in the principal Act].
Shiv Mangal Sharma and Sukanya Singh
Advocate Supreme Court