Medical Negligence and Procedural Law

Khangembam Devabrata Singh *

The new High Court Complex at Chingmeirong Imphal in April 2012 :: Pix - Bullu Raj

Human body and life are the most precious things on this earth as no wealth or fortune can return life or health of an individual. The Preamble and Article 21 & 38 of the Constitution of India not only guarantee right to life and personal liberty but also ensure life to be meaningful and livable with human dignity. Traditionally, people in India have had high regards for doctors and other members of the medical profession. It is for this reason that many people unquestioningly accept whatever the doctor says.

This created a situation where many treacherous doctors/medical practitioners and sometimes quacks conducted themselves without any regard for their professional ethics and patient's safety. This resulted in many deaths and medical complications. When incidents like these happened, the question of medical negligence and deficiency in service comes in.

Medical negligence is the act or omission in treatment of a patient by a medical profession, which deviates from the accepted medical standard of care. It occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a way that deviates from the accepted medical standard of care (more on that later) ie, if a doctor breaks the rules regarding how to treat a patient, and does something that is "against the rules", then that doctor has failed to perform his duty, and is said to be negligent.

The Supreme Court pronounced that medical profession and professional could also be tried under the Consumer Protection Act (CPA), 1986. Though the Indian Medical Association contested this decree, its plea was disqualified in the case of Indian Medical Association Vs VP Shantha & Ors. Besides this decree of the Supreme Court bringing the medical profession and professionals under the purview of the CPA, there exists a provision under the Indian Penal Code – Section 304A which covers acts of medical professionals.

According to this whoever causes the death of the person (in this case a patient) due to negligence or a rash act, not amounting to culpable homicide, can be tried and suitably punished with imprisonment for 2 years or fine or both.

Medical negligence under the Consumer Protection Act, 1986:

Acknowledging the fact that the human body is a complex organization which can suffer from malfunction that can be difficult to diagnose correctly even by experienced medical professionals, the CPA underlines that a medical professional can be held responsible in case he/she fails to diagnose the medical condition correctly due to lack of knowledge, skills and care that is expected of him.

Consequently a mistaken diagnosis cannot be considered as a case of wrong diagnosis and due to this the consumer forum has sometimes ruled in favour of the doctor concerned. But the failure to take care when such care has to be exercised by a medical professional, does implicate the professional under medical negligence making him/her liable for punishment.

Under Civil Courts, the aggrieved patients can file a case against the doctor for monetary compensation for which the patient is to pay Court fees that depends upon the compensation sought. Probably, due to near acceptance of medical negligence as inevitable by the patients and their relatives or local settlements, not many cases have reached the apex court of law in the past. The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act, 1855 and the Section 357 of Cr. P.C., 1973. But to avail it, aggrieved patients have to wait for years and spend considerable amount of money on litigations.

The Civil Court cases take care the route of Sub-Court, District Court, High Court and Supreme Court.

A written complaint can be filed before the District Consumer Disputes Redressal Forum District Forum) for pecuniary value/original jurisdiction of upto Rs.20,00,000/-(twenty lakh) and State Consumer Disputes Redressal Commission (State Commission) for value upto Rs1 crore and National Consumer Disputes Redressal Commission (National Commission) for value above Rs 1 crore. National Commission has Appellate jurisdiction over the orders passed by the State Commission and State Commission has Appellate jurisdiction over the orders passed by the District Forum.

However, there is no court fee to be paid to file a complaint in a Consumer Forum/Commission. Further, a complainant can present his case on his own without the help of a lawyer. The maximum time limit for a claim to be filed under CPA is 2 years from the date of occurrence of the cause of action.

As per the Consumer Protection Rules, 1987, a complaint filed in the Consumer Forum/Commission shall be adjudicated, within a period of 90 days from the date of notice by opposite party and within 150 days if it requires analysis or testing of commodities. There are also other legal relief (other than CPA & Civil Courts ) where aggrieved patients can file written complaint against medical professionals:

i) Medical Council of India and Dental Council of India.

ii) Monopolies and Restrictive Trade Practices Commission, (MRTP).

iii) Public Interest Litigation.