Medical negligence gives rise to civil as well as criminal liability . In civil wrongs, an aggrieved person can file a claim of compensation either through suit or a complaint lodged in consumer forum. Since the enactment of the Consumer Protection Act, 1986, there has been a significant increase in medical negligence cases being filed. The medical profession is a noble profession.
The patient-doctor relationship is founded upon mutual trust and confidence. Consumer Protection Act is a very unique and highly progressive piece of social welfare legislation and the provisions are intended to provide effective and efficient safeguards to the consumers against various forms of exploitations and unfair dealings. It’s a convenient digital tool to ensure service providers are accountable. Patients have started to use this Act when they are aggrieved because of medical neglect. Each doctor, irrespective of the position of his duty, has a professional responsibility to extend his life-protection service. Medical Negligence means the failure to exercise reasonable skill as per the general standards and prevalent situations. The main objective of this Act is to promote and protect the rights of consumers. With the help of several cases, the researcher aims to focus on the judiciary’s latest approaches to responsibility for medical negligence under the Consumer Protection Act.
Table of Contents
Negligence can be defined as the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by whose neglect the plaintiff has suffered an injury to his person or property .
There are three essentials in negligence, they are:
- The defendant usually owes a duty of care to the plaintiff;
- The defendant has made the breach of duty of care;
- The plaintiff suffered damage as a consequence.
Professional is usually a person who is doing or practicing some work as a full-time occupation or for any kind of receipts or to make a living. This person knows the special conventions, any extra kind of communications or any form of politeness, etc., which are related to a certain profession. These people are subject to standards on matters of conduct and ethics, professional code, mostly enforced by regulatory authorities of that profession.
NEGLIGENCE BY PROFESSIONALS
In the law of negligence in torts law, professionals such as doctors, lawyers, architects and others are included in the category of individuals having some special skill or skilled persons generally. A professional is usually held liable for negligence on two things, when he doesn’t actually possess the requisite skill which is required for the profession or when he did not do his work with reasonable competence in the required skill.
A professional should follow codes of conduct while providing his care or service in their respective field. If they fail to adhere to their respective professional codes of ethics, the other party can claim professional liability against the service provider.
AIMS AND OBJECTIVES OF THE CONSUMER PROTECTION ACT
The Consumer Protection Act, 1986 is a very unique and highly progressive piece of social welfare legislation and the provisions are intended to provide effective and efficient safeguards to the consumers against various forms of exploitations and unfair dealings . The main objective is to promote and protect the rights of consumers such as-
- The right to be free from the commercialization of products that are dangerous to life and properties.
- The right to seek redress against unfair competition or the unscrupulous abuse of customers.
- The right to be aware of the quality, quantity, ability, purity, value and price of the goods in order to protect the consumer from unfair trade practices.
WHO IS A CONSUMER?
Under section 2(1)(d) of the Consumer Protection Act, 1986, the word consumer has been defined separately for goods and services purposes.
A buyer means a person who-
(i) purchases goods for consideration that have been paid or promised or partially promised or partially paid or under any deferred payment scheme and includes any recipient of such goods for consideration paid or promised or partially paid or promised or under any deferred payment scheme where such use is made with the approval of such person but does not include such goods.
(ii) recruiting for consideration any company or company that has paid or agreed or partially paid or agreed or under any deferred payment scheme and includes any beneficiary or service other than the individual who heirs or avails of the services for consideration paid or promised, partly or partly promised or under any system of deferred payment when such services are availed of with the approval of the first-mentioned person under section 2(d) of the Consumer Protection Act, 1986.
A medical facility comes under the purview of the Consumer Protection Act in the following cases:
- Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical.
- Service rendered at a non-Government hospital/nursing home where charges are required to be paid by the persons availing such services.
- Service rendered at a non-Government hospital/nursing home where charges are required to be paid by persons who are in a position to pay shall be made free of charge, irrespective of the fact that the service is made free of charge to people who are not in a position to pay for Free Service, it will therefore be a “service” and a “sale” to the beneficiary under the Act.
- Service provided at a Government Hospital / Health Center / Dispensary where services are provided on payment of fees and also made free of charge to other persons using these facilities, regardless of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service will therefore be a “service” under the Act and the client a “user.”
- Where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the medical practitioner or hospital/nursing home given to such an employee and his / her family members would not be free of charge and would constitute service.
LIABILITY UNDER THE CONSUMER PROTECTION ACT
In 1995, the Supreme Court’s decision in Indian Medical Association v. VP Shantha  brought the medical profession within the ambit of a ‘service’ as defined in the Consumer Protection Act, 1986. This described the relationship as contractual between patients and medical professionals. Patients who had suffered injuries during care could now sue doctors for compensation in ‘procedure-free’ patient rights tribunals. The Court held that while the services provided by medical practitioners are of a personal nature, they cannot be regarded as personal service contracts.
A ‘business contract’ means a contract whereby one party undertakes to provide services (such as technical or professional services) to another under which the service provider is not subject to the detailed direction and control. The provider exercises technical or professional expertise and uses his or her own experience and flexibility. A ‘service contract’ includes a master-servant relationship and a duty to follow instructions in the work to be done and in the manner in which it is done. The ‘service contract’ is beyond the scope of the Consumer Protection Act, 1986, pursuant to section 2(1) (o) of the Statute. Patients would not be protected under the Consumer Protection Act if the service is made free of charge, even if they have just charged a nominal registration fee. However, if the costs of patients are forgiven due to their incapacity to pay, they are deemed as customers and they can sue under the Consumer Rights Act.
LIABILITY UNDER CRIMINAL LAW
In certain cases, negligence is so blatant that it invites criminal proceedings. A doctor can be punished under Section 304(A) of the Indian Penal Code (IPC) for causing death by a rash or negligent act, say in a case where the death of a patient is caused during operation by a doctor not qualified to operate. According to a recent Supreme Court decision in Dr. Suresh Gupta v. Govt. of NCT of Delhi , the level of negligence to be proved against a doctor in cases of criminal negligence (especially in compliance with Section 304A of the IPC) should be so high that it could be defined as ‘gross negligence’ or ‘recklessness,’ not just lack of care. Criminal responsibility won’t be drawn if the patient dies due to negligence or medical mistake. Any civil negligence is not criminal negligence, so it should be of such a degree that it may be considered gross negligence for civil negligence to become criminal.
Very rarely can a doctor be prosecuted for murder or attempt to murder as doctors never intend to kill their patients, and hence do not possess the required level of guilty intention. When doctors administer a treatment involving the risk of death, they do so in good faith and for the patient’s benefit. A doctor can also be disciplined under the IPC for causing harm or grievous damage. Sections 87, 88, 89 and 92 of the IPC also offer immunity from criminal prosecutions to doctors working in good faith and for the benefit of the patient. Yet the prosecution needs to prove the doctor behaved in good faith and for the benefit of the patient. For example, a doctor who consciously or knowingly did not use sterilized equipment for an operation cannot be said to have acted in good faith.
An individual who is ready to give medical treatment or advice impliedly undertakes that he is capable and possesses such skill and knowledge. This person, whether he is or is not a medical practitioner when consulted by a patient still has certain duties.
There are certain basic principles laid down by the United Kingdom, these principles are to be kept in view while deciding any case regarding medical negligence. According to the court, in order to prove negligence, the aggrieved consumer must prove the following ingredients before the court:
- The doctor breached the duty of care,
- The doctor owed him the duty of care of a particular standard of professional conduct,
- The patient (plaintiff) has suffered any injury due to his breach and caused actual damage and the doctor’s conduct was directly an approximate cause of the damage.
While deciding the cases regarding medical negligence following principles must be kept in view:
- Breach of duty exercised by omission, which a prudent man when guided by a set of considerations which usually regulate the conduct of human affairs, will do or doing something which a reasonable and prudent man wouldn’t do is negligence.
- An essential ingredient of the offence is negligence. It can be established by the prosecution which must be gross or culpable and not the negligence based upon the wrong of judgment.
- A reasonable degree of skill and knowledge is expected for a medical professional, he must exercise a reasonable degree of care. Neither very low degree nor the highest degree of competence and care is judged in particular circumstances of each case, is what this law requires.
- When a medical practitioner’s conduct falls below that of the standards of a reasonably competent person in the field, he will be liable.
- In the domain of diagnosis and treatment, there is the scope of the difference of opinion regarding a case from one practitioner to the other, so this difference in opinion is clearly not negligent merely because one’s conclusion differs from that of the others.
- Usually for a medical practitioner, they should adopt a procedure which involves a higher risk but if the professional believes that when a certain risky procedure is provided there will be greater chances of success for the patient rather than sticking to a procedure involving lower risk but higher chances of failure. So just because the practitioner when looked into the gravity of the illness has taken a higher element of risk to help the patient which did not yield the desired result may not amount to negligence.
- When a doctor performs his duties and responsibilities with competence and skill, he cannot be attributed to negligence. If a doctor chooses one method of action in preference with another one which is available, he wouldn’t be held liable if the method or course of action chosen by the doctor is acceptable in medical practice.
- It would no longer be conducive to the performance of the medical career if no doctor could administer remedy without a halter round his neck.
- It is the bounden responsibility and duty of the civil society to make sure that clinical professionals are not unnecessarily humiliated or harassed in order that they can carry out their expert duties without worry and apprehension.
- The medical practitioners now and then need to be saved from such a category of complainants which use criminal process as a tool for pressurizing the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings should be discarded against medical practitioners.
- The medical professionals are entitled to urge protection till a long period of time, as they perform their duties with reasonable skill and competence and within the interest of the patients. The interest and welfare of the patients need to be paramount for medical professionals.
The court even added more to the eleven principles for determining the breach of duty by medical practitioners or hospitals, but they even took a forward step by observing that, “In our considered view, the aforementioned principles must be saved in view whilst determining the instances of medical negligence.” 
LIABILITY OF MEDICAL SERVICES
It is observed that medical services are well within the purview of the Consumer Protection Act, 1986. Through this Act, Consumers can protect their interest against the deficiency in services. This Act does not specifically mention medical services. As per Section 21(o) of the Consumer Protection Act, services means services of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, a supply of electrical or other energy, board or lodging or both, housing, construction, entertainment amusement or purveying news or the information, but it does not include the rendering of any service free of charge or under a contract of personal services. The Consumer Forums started awarding compensation to the aggrieved consumers suffered by the defective medical services. In Lucknow Development Authority v. M. K. Gupta , the Supreme Court observed that the concept of ‘Service’ has a variety of meaning. It may mean any benefit or any act resulting in promoting interest in happiness. It may be contractual, professional, public, legal, statutory etc. The concept of service thus, is very wide.
DEFICIENCY IN MEDICAL SERVICES
Deficiency means any error, imperfection and deficiency or inadequacy in the consistency, nature and manner of performance provided by or under any law for the time being, or performed by a person pursuant to a contract or otherwise in connection with any service, to be preserved under Section 2(1)(g) of the Consumer Protection Act, 1986. Each doctor, regardless of the place of his practice, has a professional duty to extend his life-protection service. Deficiency may be the result of inability and lack of competency whereas negligence would be caused by carelessness. In all cases of negligence, there will be deficiency but in all cases of deficiency, negligence will not be present. In a landmark case, England Bolam v. Frien Hospital Management Committee the court held that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular act . A doctor is not liable for taking one choice out of two for favoring one line of treatment rather than another.
MEDICAL NEGLIGENCE – A CIVIL WRONG OR A CRIMINAL OFFENSE
The term negligence is mostly used for the purpose of making the defendant liable under civil law which is the law of torts and a few times it even comes after criminal law. But mostly it said that negligence is negligence and there can be no distinction drawn between the two as far as it associates to resultant damage and breach of his duty. Lord Atkin in one of his speech gave a difference between the two, “…Simple lack of care which includes will represent civil liability is now not enough for the purposes of the criminal regulation, there are degrees of negligence and totally a high degree of negligence is required to be proved earlier than the crime is established.” This speech was given in the case Andrews v. Director Public Prosecution 
So this shows that for negligence to be an offence there should be a mens rea which is guilty mind and the negligence should be very high or of gross degree.
Negligence or recklessness must be of high degree which will be held as gross to be considered as criminal law. In the case, Mathew v. State of Punjab , the apex court has explained that ‘it is a rash and negligent act’ which occurred in section 304 A of the Indian Penal Code can be qualified by the word grossly.
To prosecute a professional for medical negligence under the criminal law, it must be shown that the accused failed to do something or did something which in the given situation no medical professional in his normal senses and prudence would have done or failed to do so.
The act done by the doctor who is accused should be of such a nature that the resulting injury was most likely imminent.
From the above, it can be derived that the distinction between civil and criminal liability in the area of medical negligence lies in the doctor’s conduct when the conduct of the doctor results in gross or reckless or of a very high degree then it comes under criminal liability.
MEDICAL NEGLIGENCE AND HOSPITALS
Indian hospitals can be held liable for their services vicariously or individually. These hospitals can be both charged with negligence and sued either in civil or criminal or even consumer courts. Under the Consumer Protection Act, 1986, medical services are under it and the complainant can be granted with compensation for deficiency in services provided within 90 -150 days.
Few cases which do not come under the purview of the Consumer Protection Act, 1986 can be taken up with criminal courts, where the health care provider may be charged under the section 304 A of IPC for causing damages which amounted to negligent and rash act or can land in civil courts where compensation can be given in lieu of the damage resulted. These non-purview cases are where the treatment is provided free of cost at non-government or government hospitals, dispensaries, health centers or nursing homes, etc.
LIABILITY OF HOSPITALS IN CASE OF NEGLIGENCE
Hospitals can be made liable with direct or vicarious liability with respect to medical negligence. Direct liability is where there is a lack of hospital itself while providing a suitable and safe environment for the treatment of the patients as promised. Vicarious liability is where the liability of an employer for the negligent actions of its employees. The employer is usually responsible not only for his own negligent acts of both omission and commission but also for the negligence acts of their employees also but it should be within the scope and course of their employment. Respondeat Superior is the underlying principle for the liability, which means ‘let the master answer’. Even under the common law principle which is ‘qui facit alium facit per se’ the employers are liable, this principle means that the one who acts through another person is liable for the negligence occurred through that act. This concept is parallel to the strict liability and vicarious liability in which one individual is held liable in Torts or Criminal Law for the acts or omissions of another individual.
This can be by not maintaining the equipment in a proper working condition implies negligence. If there’s any damage occurred to a patient due to the non-working of equipment then the hospitals are held directly liable. Not handing over extra copies of medical reports, records, x rays, etc., implies negligence by a deficiency in services provided. Under the Indian Medical Council [Professional conduct, Etiquette and Ethics] Regulations 2002, a provision in respect of medical records has been made which states that every registered medical professional has to maintain records for a period of at least three years from the date of start of the treatment in the prescribed form given by MCI and if a patient requests for medical records or even the legal authorities of the patient ask, it should be duly acknowledged and the requested documents should be handed over by 72 hours. Every right of the patient to obtain in writing about their medical illness, treatment and investigations, given on a discharge ticket or prescription paper. If the medical records aren’t provided to the patients or the attendants can be amounted to deficiency of service under the Consumer Protection Act, 1986.
In an ambulance service provider, usually, a hospital makes sure that the ambulance is equipped with lifesaving equipment and if such equipment isn’t present or not working then the hospital is liable for negligence in case of a mishap.
When by negligence there is the transmission of infections including HIV, HBsAg, etc., the hospital can be charged and if any patient develops such infections during the course of treatment in the hospital and if it is proved due to the negligence of a hospital, the hospital is held liable.
Under the Consumer Protection Act, 1986, misleading signboards, advertisements of hospitals and prescription slips can be implied as a deficiency in service or unfair trade practice and damages can be awarded for such practices. When a hospital wrongly claims that their hospital has availability of certain facilities but in actual they don’t this construes negligence. When a hospital knowingly forges the qualifications of the doctors can also be held liable for the misconduct, even when the hospitals claim guarantee results for operative based procedures which do not give the desired outcome also amount to negligence by the hospital and they are held directly liable.
On multiple occasions, a hospital can be found vicariously responsible on several grounds.
Several High Court judgments hold hospitals vicariously liable for damages incurred by their staff’s incompetent acts to the patients. In one Kerala High Court judgment in Joseph Pappachan v. Dr. George Moonjerly it was reported in support of the following impact, ‘Persons running a hospital have the same responsibility as the humblest doctor in law: if they welcome a patient for treatment, they will use fair care and ability to ease him from his sickness. Of course, the hospital officials cannot do it on their own; they have no ears to listen to the stethoscope, and no hands to carry the scalpel of the surgeon. They have to do that through the people they employ; and if their employees are negligent in delivering care, they are as responsible for this negligence as anyone else who pays anyone to conduct their duties on his behalf.’
In another judgment in Aparna Dutta v. Apollo Hospitals Enterprises Ltd  by the Madras High Court, the hospital will be held liable on the negligent conduct of even borrowed doctors for specific performance of certain operations. The conditions in which doctors and surgeons are hired by the hospital are between them, but as a result, it cannot be claimed that the hospital cannot be held responsible for third party patients. The delivery of such a medical service is required from the hospital and, if there is a lack of service or where the procedure has been done negligently without providing proper care and caution, the hospital must therefore be held responsible and cannot avoid the responsibility by claiming that there is no master-servant arrangement between the hospital and the surgeon who performed the operation. In case of proven negligence, the hospital is responsible and it is no longer a defence to argue that the surgeon is not a hospital worker, etc.
In certain cases of negligence against government hospitals, it has been held that the State is vicariously liable for negligence on the part of its doctors or employees, or even solely liable if there is a shortage of sufficient equipment or personnel. In a few cases, the court has given orders that the fee paid to the claimant can be recovered from government physicians whose negligence was proved.
LATEST CHANGES IN THE PROVISIONS UNDER CONSUMER PROTECTION ACT
The new Consumer Rights Act 2019 entered into force in India on July 20, 2020, repealing the original 1986 enactment. The latest Act revises the management and resolution in India of consumer disputes. It allows for stringent punishments for adulteration and false advertising, including prison time. More specifically, guidelines for the selling of goods by e-commerce are now recommended and no fees are required to be paid if the claim is within Rupees 5 lakhs (approximately 3500 USD).
Instead of the place of business or residence of the seller or service provider, an aggrieved customer may file grievances about a defect in products or a deficiency in services from where he or she resides. The new legislation further allows for the e-filing of complaints involving customers.
Consumers are now entitled to many protected rights including the right to protection, facts, preference, recourse, and the right to be heard, to be educated as a customer, and to a negotiated settlement.
In terms of consistency, quantity and product safety, business agencies that appeal to customers would have to exercise greater consideration and vigilance. In addition to incurring collateral harm to reputation, the boards of firms that make or trade consumer products must set up a Consumer Relations Committee to regularly review consumer disputes and resolve the need to proactively provide negotiated settlements by conducting internet consultation and saving themselves the costs of prosecuting a matter in Consumer Courts in a distant part of India.
The Consumer Protection Act protects the interest of the consumers. It provides a simplified procedure for resolving the consumer’s grievances. Through this Act, consumers can protect their interest against deficiency in services. This Act provides a forum to the victims of negligence or deficiency in medical services by providing a cheap, speedy and efficacious remedy. The judges observed that the legal system has to do justice to both patients and doctors. The fear of medical professionals should be taken into consideration while the legitimate claims of the patient.
It is important to punish guilty doctors. It is also important to protect doctors who act in good faith from harassment. The courts must strike a perfect balance. The Supreme Court in the case Paramananda Katara v. Union of India  once observed that the doctor’s job is to protect life and the courts should assist in this cause as far as possible. It is also the duty of the courts to see that doctors are not harassed in the course of performance of such duty.
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BY M POOJA | ALLIANCE UNIVERSITY