The profession of a medical practitioner is a very noble profession. Medical practitioners are treated equivalent to Gods for saving lives. But it is heart wrenching to learn sometimes that many patients suffer serious illnesses or even death due to the negligence of a medical practitioner. A medical practitioner has to be extremely careful while treating a patient since it may cost the patient his life. But is the care exercised by the medical practitioner a mere moral duty or it extends beyond it? The law in India with respect to medical negligence” is quite complex but the victim has various remedies under the Indian Law.
What is Medical Negligence?
The term “medical negligence” is not defined under any statute in India. In simple terms, the negligence of a medical practitioner while treating his patient is called medical negligence. When a medical practitioner treats his patient, he is expected to exercise a standard of care towards the patient. A failure to exercise this standard of care towards the patient is called “medical negligence.” What is this standard of care can be understood while understanding medical negligence as a tort. Sometimes, negligence is negligible that it doesn’t affect the patient and sometimes it is gross which harms the patient gravely. Hence, it is essential to address it legally.
Medical Negligence as Tort
Tort is not codified in India and is a common law remedy available for the civil wrongs committed by a person against another. “Negligence” is the umbrella tort under which medical negligence will fall and it has the same components as that of negligence. It is defined as “omission to do something which a prudent and reasonable man would do, or doing something which a prudent and reasonable man would not do, and is actionable whenever, as between the plaintiff and the defendant, there is a duty cast upon the latter not to be negligent and there is a breach of this duty which causes damages to the plaintiff.[i]”
According to Winfield, the defendant needs to essentially prove that there existed a legal duty, the breach of which has caused harm to the defendant. Note that the standard of care required under the tort of negligence is that of “reasonable man or man of ordinary prudence.” But since this falls under the special category, the standard of care would essentially depend upon the reasonable care exercised by the community of medical practitioners generally.
Medical Negligence under The Consumer Protection Act, 1986
For the purpose of claiming protection under the consumer protection act, a person needs to be necessarily a consumer of either goods or services. For the purposes of medical negligence, we must look at the definition of consumer with respect to service and that of deficiency of service.
The term “consumer” is defined under Section 2(d) of the act which reads as: “hires or avails any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment”
The term “deficiency” is defined under 2(g) which reads as: “”deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”
Medical negligence is well covered under the consumer protection act since the definition of service, though being general has jurisprudentially evolved to include the medical profession. Also, negligence amounts to deficiency since it can be attributed to the failure of the medical practitioner to render his services up to the expected standard. Moreover, recent developments have suggested that a patient treated free of costs by the government will also be a consumer and can claim protection under the act.[ii]
Medical Negligence under The Indian Penal Code
When understanding about medical negligence and the criminal liability attached therewith, we must refer to the provisions of the Indian Penal Code. Section 304A of the Code reads as causing death by negligence.
Causing death by negligence – Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.[iii]
The above-mentioned offence is Bailable, Cognizable and Non- Compoundable. The defences available against this offence are as follows:
- Offence done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.[iv]
- Act not intended to cause death, done by consent in good faith for person’s benefit.[v]
For considering Medical Negligence as a crime, it must result into death of the patient. Also, the negligence must be gross in nature as held in the case of A.S.V. Narayan Rao v. Ratnamala.[vi] In this case, a cardiologist conducted an angiogram on the patient. While doing this, he found three blocks in the coronary arteries and hence he conducted angioplasty. But the angioplasty failed since the blocks had calcified and hence, he decided to do bypass surgery during which the patient died. It was held that the negligence of the medical practitioner must be gross in nature and this was a case where in the medical practitioner had acted in good faith.
Medical Negligence and Professional Code of Conduct
The Medical Council of India, for the purpose of regulating the profession of medical in India has made the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. Under Chapter 2 of these regulations, duties of physician to their patients are provided. Regulation 2.4 says that the patient must not be neglected. The relevant excerpt reads as:
“Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care.”[vii]
Hence, a medical practitioner is bound under the code of conduct regulations of medical profession to not act negligently. But the violation of these regulations amount to a mere professional misconduct and the maximum punishment can be the removal of the practitioner. This casts deterrence for the medical practitioner and motivates him to uphold the dignity of the profession.
Conclusion
Medical Negligence in India is not codified but the patients can find the remedies for it either as a tort or under the consumer protection act. If death is caused as a result of the negligence, then it amounts to crime under the Indian Penal Code. The medical practitioners and physicians have their own regulations governing their conduct which prescribe the duty that they must not act negligently towards the patient. Even though there is absence of a complete codification of the act of medical negligence, the jurisprudence has evolved to remedy the wrong done to the patient. Moreover, evidencing the standard of care is a practical difficulty. Sometimes, misconceived cases cost the medical practitioners their lifetime reputation. Hence, it is essential that extreme care is exercised while deciding cases on this subject.
Frequently Asked Questions (FAQs)
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What is medical negligence?
The failure of a medical practitioner or a physician to take reasonable care of the patient which he is legally bound to do, is called medical negligence.
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Can a patient claim protection under the Consumer Protection Act, 1986?
Yes. A patient can claim protection under the consumer protection Act, 1986 since he is a consumer under the act.
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Is medical negligence a crime?
Yes. It is a crime if it results into death under Section 304A of the Indian Penal Code which provides for punishment for causing death by negligence.
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What can a medical practitioner defend when he is wrongly implicated in a medical negligence case?
A medical practitioner can defend that he was acting in good faith or it was an accident while doing an act lawfully with proper care and caution.
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Do medical practitioners owe a duty of not being negligent towards their patients?
Yes. Medical practitioners owe a duty of not being negligent under the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002.
[References]
[i]S. C. Thanvi. ‘Law of Torts’ <http://14.139.60.114:8080/jspui/bitstream/123456789/738/22/Law%20of%20Torts.pdf> accessed 14 October 2018.
[ii]Dipak Dash, ‘patients treated free also consumers, can sue for negligence’ Times of India (New Delhi, 3 February 2018).
[iii]Indian Penal Code 1860, s 304A.
[iv]Indian Penal Code 1860, s 80.
[v]Indian Penal Code 1860, s 88.
[vi]A.S.V. Narayan Rao v Ratnamala[2013] 10 SCC 741.
[vii]Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations [2002] MCI-211(2)/2001 s 2.4.
