An Analysis of Medical Negligence under the Consumer Protection Act

By Arryan Mohanty

Published on: 02 October, 2023 at 21:42 IST

The adage “Health is Wealth” is antiquated. A robust individual possesses the capacity to engage in wealth generation diligently. Good health is an esteemed asset, being the most invaluable possession one can own. Healthcare has burgeoned into one of India’s most paramount service industries. The responsibility for the health sector in India falls upon the state, municipal, and national governments. Nevertheless, the private sector predominantly provides healthcare services in India.

⁠⁠⁠⁠⁠⁠⁠The vocation of medicine is revered as one of the most noble professions due to its life-saving nature. It renders indispensable services encompassing health promotion and disease prevention, among other facets. Gaffes constitute an inescapable facet of human existence. Negligence arises as an outcome of substandard service. Patients are entitled to consumer protection safeguards.

According to a particular survey, the annual tally of recorded medical negligence cases has increased by 110%. The report additionally divulges that 12% of the complaints dealt with by the consumer protection forum pertain to medical negligence, with hospitals accounting for 90%. Approximately 60 to 66 percent of grievances are lodged due to hospitals neglecting to obtain adequate authorization from families before administering specific treatments, transferring patients to different hospitals, or due to defective documentation throughout diagnosis and treatment. Consequently, it is an inescapable reality that the medical profession, which is held in the highest regard, needs to fulfil its duty to serve the public adeptly.

In India, there is a growing awareness among the public regarding instances of medical negligence. Hospital administrations are now faced with increasing complaints concerning various aspects, such as the adequacy of their facilities, the competency requirements of their professionals, and the appropriateness of their therapeutic and diagnostic approaches. The recent surge in lawsuits primarily revolves around the responsibility of medical professionals or establishments seeking compensation for the suffering caused by medical negligence, compromised consent, and breach of confidentiality within the doctor-patient relationship. This indicates a prevailing trend. The initiative to protect patients’ rights is centred on the economic context of significant reductions in state expenditure and substantial private investment in the healthcare system. Furthermore, the Supreme Court has made painstaking efforts to establish the right to health as a fundamental right.

At present, the process of determining the responsibility of medical professionals, whether through a consumer forum or a conventional civil or criminal court, considers legal concepts such as negligence, compromised consent, and breach of confidence. It is crucial to emphasise that safeguarding patients’ rights should not compromise professional integrity and autonomy. Striking a delicate balance is undoubtedly necessary; otherwise, the consequences would be unfathomable.

Medical Negligence

Negligence is a violation of one’s obligation resulting from failing to perform an action that a prudent and rational individual would undertake based on the customary principles that govern human conduct or from carrying out an activity that a sensible and reasonable individual would refrain from. The legal foundation for negligence arises when harm is caused due to the negligent act or omission of the individual being sued.

The key elements of negligence encompass duty, breach, and consequential damages. In the words of Winfield, “Negligence as a misconduct is the breach of a responsibility to require care which ends in injury, unsought by the litigator to the complainant.” This definition of negligence has three components:

• An obligation on the part of the party complained of to exert guardianship over the party querulous over the former’s conduct within the limits of the duty.
• That the litigator failed to do the same responsibility.
• The complainant experienced import damage as a result of the duty violation.
• The outcomes were unfavourable.

As a result, these four components are square measure to be verified in a highly negligent neglect. Despite Lord Mcmillan’s observation in Donoghue v. Stevenson,¹ the classes of negligence square measure ne’er closed. The responsibility encompasses a broad range of options. Thus, the court must decide how general the duty is. Because negligence originates from many interactions, providing a comprehensive, complete description is impossible.

The term “medical negligence” refers to the failure to exercise reasonable caution and competence during the diagnosis and treatment of a patient under the prevailing standards at that time. The landmark case of Bolam v. Friern Hospital Management Committee² established the guidelines for determining medical negligence. The ruling states, “A doctor must employ the ordinary expertise of a competent doctor within his specific field.” This level of competence must be employed in adherence to a reasonable body of medical opinion from experts in the relevant field.

Medical Negligence is a legal wrong that encompasses the following elements:

• First and foremost, there must be an explicit or implicit legal duty to provide medical treatment to the patient.
• Secondly, there must be a breach of this legal duty, which can be evaluated by comparing it to the expected behavior and performance of other professionals in the same field.
• Lastly, this breach must result in harm and injury to the patient, for which compensation is sought.

Before considering any medical negligence case, two crucial factors must be considered:

• Firstly, when evaluating the standard of care provided by the medical practitioner, it is essential to consider the prevailing standards of care at the time of the incident rather than the date of the trial.
• Secondly, suppose medical negligence is alleged due to a failure to use specific medical equipment. In that case, the allegation may be dismissed if the equipment was not available or accessible when it was recommended.

In the matter of Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Babu Godbole,³ the Supreme Court delineated the obligations of a medical practitioner: Firstly, he bears the duty of care in ascertaining whether or not to undertake the case. Secondly, he assumes the responsibility of care in determining the appropriate course of treatment to administer. Lastly, he bears the burden of care in helping the treatment.

In the case of Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre and Ors.,⁴ the Hon’ble Supreme Court referred to Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18, wherein it was described as “22. Negligence. – Duties owed to the patient.” An individual who holds himself out capable of providing medical advice or treatment implicitly asserts that he possesses the requisite competence and knowledge. A person who is consulted by a patient, regardless of whether he is a registered medical practitioner or not, owes the patient certain obligations, including but not limited to the duty of care in deciding whether to assume the case, the duty of care in determining the appropriate treatment to administer, and the duty of care in the actual administration of said treatment. The patient may maintain a negligence claim if these responsibilities are breached.

When does a duty arise?

It is widely recognised that a doctor bears the duty of care toward his patients. This duty can arise from a contractual relationship or tortuous liability. Nonetheless, even without a doctor-patient connection, the judiciary has imposed a burden of responsibility on the doctor. The Supreme Court has stated that “each doctor, whether employed at a public hospital or elsewhere, is professionally obliged to provide his services with the necessary expertise to safeguard life.”⁵ However, it should be noted that these situations primarily pertain to cases where an individual’s life is at stake. Consequently, the doctor is not obligated to assume responsibility in other circumstances.

What is the duty owed?

According to the decision rendered by the Supreme Court in Dr. Laxman Balkrishna Joshi’s case, a medical practitioner must demonstrate a reasonable level of skill and knowledge in the execution of their duties and exhibit a reasonable level of care. This implies that the doctor is not compelled to adhere to the highest or lowest standards of care and competence under the given circumstances. Consequently, it is not incumbent upon a physician to ensure the complete recovery of every patient who seeks assistance. Instead, their primary responsibility is to provide equitable care and expertise.

Also Read: CRIMINAL NEGLIGENCE AND LIABILITIES – Law Insider India

Reasonable degree of care

The phrase “reasonable degree of care and skill” pertains to the level of care and competence exhibited by an “ordinary competent member of the profession who claims to possess such expertise within the specific circumstances in question.” It is crucial to differentiate between the standard and extent of care. The standard of care remains uniform and consistent across all situations. A doctor’s actions must be rational and need not necessarily conform to the utmost or lowest degree of feasible care. On the other hand, the extent of care varies and is contingent upon the particular situation. It denotes what genuinely encompasses reasonableness within a given context.

Consequently, while a generalist and a specialist are mandated to provide an equivalent level of care, the degree of care will remain the same. In simpler terms, both are obligated to exercise judicious care, but what qualifies as judicious care for the specialist differs from what qualifies as acceptable care for the generalist. In actuality, the law anticipates the expert to employ the customary skill of their respective specialization as opposed to the skill of any other physician. While the courts have acknowledged the necessity to impose a higher level of responsibility on a specialist, they have declined to diminish the standard in the case of a novice.

Another matter that arises is the extent of expertise expected from a medical practitioner. Does it encompass the latest advancements in the field, necessitating regular updates, or is it adequate to adhere to past practices? The courts have acknowledged that the definition of reasonableness evolves with time. As mentioned earlier, the stipulation mandates that the doctor possess a reasonable level of knowledge. Consequently, we can infer that a doctor must consistently update their knowledge to meet the required standards. Additionally, although only reasonable information is necessary, they may not be essential to be aware of every event that has transpired.

Negligence can be described as the failure to employ appropriate expertise in the realm of diagnosis, leading to an erroneous course of treatment. In medical malpractice proceedings, the burden of proof lies upon the patient to substantiate their case against the medical practitioner rather than the medical professional needing to demonstrate that they acted with sufficient care and expertise.⁶ The National Commission has concurred with this viewpoint, affirming that any mishap occurring during a surgical procedure cannot be attributed to a deficiency or negligence in providing medical services.⁷ Negligence must be substantiated and not simply presumed.⁸ The lower forums have both determined that no submitted evidence on record from the complainant suggests that the respondent was remiss in inserting the lens into the complainant’s eye, resulting in a chronic ailment in the complainant’s left eye.⁹

The Commission determined in the case of Nirmalendu Paul v. Dr. P.K. Bakshi¹⁰ that insufficient and compelling information supports the allegation encompassed in the petitioner’s plea. Consequently, the petitioner has not substantiated the accusations against the opposing parties. Similarly, in the case of Sethuraman Subramaniam Iyer v. Triveni Nursing Home,¹¹ the NCDRC ascertained the significant role played by expert opinion regarding medical negligence. In another instance, it was established that the plaintiffs could not demonstrate negligence on the part of the opposing parties due to the absence of evidence regarding the cause of death and the lack of expert medical testimony.¹²

As per legal regulations, individuals accused of negligence may absolve themselves by adhering to commonly accepted and prevailing practices. They don’t need to exhibit the highest level of competence in fulfilling their duty of care, as this may only partially be achieved. Deviation from the standard professional practices is also only universally required in some instances of negligence.¹³ In the case of Martin F. D’Souza v. Mohd Ishfaq,¹⁴ the Supreme Court of India specifically addressed medical practitioners’ concerns regarding the adjudicatory procedures employed by courts and forums in cases involving alleged medical negligence against doctors.

However, this ruling was subsequently overturned by the cases of V. Kishan Rao v. Nikhil Super Speciality Hospital¹⁵ and Srimannarayana v. Dasari Sanlalumari & Ors.¹⁶

Until now, we have examined a doctor’s obligation regarding a patient’s treatment and diagnosis. However, doctors are also tasked with obtaining the patient’s consent before engaging in surgical procedures and, in some instances, treatment. In essence, any action that necessitates contact with the patient requires the patient’s consent. The doctors must exercise a duty of care in obtaining the patient’s consent. Naturally, the question arises as to the nature of this duty of care. According to judicial rulings, this duty entails disclosing all pertinent and necessary information for the patient to make an informed decision. Therefore, the duty does not encompass the obligation to disclose every conceivable information. Furthermore, this duty does not extend to warning the patient about all the typical risks associated with an operation. The standard of care that a doctor must observe when obtaining consent is that of a reasonable doctor, as in other situations.

When does the liability arise?

The doctor’s responsibility is not incurred when the patient experiences harm but rather when the injury arises due to the doctor’s actions failing to meet reasonable care standards. In other words, the doctor is not held accountable for every harm the patient suffers, but only for those that result from a breach of their duty. Consequently, even after establishing the existence of a duty, the plaintiff must still provide evidence of the breach of duty and causation to hold the doctor responsible. The doctor will not be deemed liable if there was no violation or if the breach did not cause the injury. To establish a breach of duty, the plaintiff must initially demonstrate reasonable given the circumstances and then prove that the doctor’s actions fell short of that standard. It is important to emphasize that simply demonstrating the presence of opposing views within the medical community regarding the doctor’s practice or conduct is insufficient to establish a violation.

Regarding causality, the court has determined that it is necessary to demonstrate that, out of all possible causes for the harm, the breach of duty by the doctor was the most probable cause. It is not enough to show that the violation of duty is just one of several potential causes. Therefore, whether the potential causes of an injury are negligence from a third party, an accident, or a breach of duty of care by the doctor, it must be proven that the doctor’s breach of duty was the most likely cause of the harm to meet the plaintiff’s burden of proof.

In most instances, proving negligence falls upon the plaintiff before responsibility can be established. Nevertheless, in exceptional situations, such as when a swab is inadvertently left inside a patient’s abdomen or when a limb is mistakenly severed instead of being cast for a fracture repair, the principle of ‘res ipsa loquitur’’ (meaning the thing speaks for itself) may become applicable. This principle necessitates the fulfillment of the following criteria:

• Firstly, the doctor must exercise complete control over the situation.
• Secondly, the occurrence of the accident in question cannot be reasonably explained without negligence, according to ordinary human experience. It is important to note that this concept is sometimes misconstrued as an evidentiary rule when it is a legal theory within tort law. When this approach is adopted, the doctor or defendant must explain how the incident could have transpired without any negligence. In the absence of such an explanation, the doctor is held accountable.

Typically, a doctor is solely responsible for his or her actions unless there are circumstances of vicarious liability. However, in rare instances, a doctor may be held responsible for another individual’s actions that harm the patient. The imposition of such responsibility may arise when the person performing the act has no duty of care towards the patient or has not breached any obligations in carrying out the act. A typical scenario where this predicament may arise is during surgery. If a junior doctor is part of the surgical team, his or her role in exercising a specific skill is to seek guidance or assistance from a senior doctor. By fulfilling this obligation, the junior doctor will not be held accountable even if he or she performs the act that causes harm. In such a situation, the senior doctor must inform the junior doctor adequately. Failure to do so would render the senior doctor liable for the patient’s injuries, even if the doctor did not perform the act personally.

What is not Medical Negligence?

It is imperative to cite the decision made by Lord Denning in the case of Roe vs. Minister of Health,¹⁷ wherein he endeavored to elucidate an action that would not constitute medical negligence: “However, it would be detrimental to the general community if we were to impose liability on hospitals and doctors for every mishap. Doctors may prioritize their safety over the well-being of their patients. This endeavor would be hindered, resulting in a diminished level of confidence. An objective viewpoint necessitates the consideration of the working conditions of hospitals and doctors. We must always insist on providing proper patient care while refraining from labeling what is simply an accidental occurrence as neglect.”

Without any hesitation, the doctor possesses complete autonomy in selecting and administering the appropriate therapy or treatment that he deems suitable for the specific patient and intends to provide to the patient. This autonomy is comparatively greater in emergencies.

Consequently, every instance of failure to cure, complication, infection, or even death cannot be viewed in isolation and deemed an act of medical negligence. The loss of a surgical procedure and adverse effects cannot always be attributed to medical malpractice.

Examples Of Medical Negligence

Some errors are more frequently reported than others. The following are the five most prevalent examples of medical negligence cases:

• Misdiagnosis:

Misdiagnosis, delayed diagnosis, or the inability to diagnose is the most commonly observed form of medical malpractice. Some healthcare professionals need more attention, incompetence, and limited resources to diagnose their patients, thus hindering them from receiving the appropriate treatment for their illnesses. Failure to correctly identify a patient can lead to the prolongation of a disease, increased financial burden on the patient, and potentially irreversible harm.

• Improper or inaccurate medication:

One of the most prevalent occurrences of medical malpractice documented is prescribing incorrect medication. This can transpire when a physician prescribes an improper dosage for a patient, recommends an inappropriate treatment for the patient’s condition, or obtains a drug for another patient.

• Anesthesia Management:

Anesthesiologists not only provide pain relief for patients, but they also possess authority over vital physiological processes such as respiration, body temperature, blood pressure, and heart rate. Anesthesiologists are responsible for ensuring the safe administration of anesthesia to patients. They oversee pre-operative evaluations, consult with surgical personnel, and provide post-operative patient care. Anesthesia errors can occur during major surgeries as well as routine elective procedures. Anesthesia mistakes can lead to long-term brain damage or even death. Anesthesia errors occur daily in hospitals, doctor’s offices, and surgical facilities. Anesthetists and anesthesiologists play critical roles in surgical operations.

• Surgical Error:

The most common form of medical negligence is errors during surgery. Surgical mistakes can occur due to various factors, including inadequate planning, lack of expertise, and shortcuts during surgery to save time or reduce costs. Communication breakdowns can involve incorrect communication among surgical staff, errors such as the doctor marking the wrong surgical site, miscommunication regarding post-surgical medication dosage, performance of the wrong procedure, and unnecessary surgery. Surgical errors can cause harm to other organs, nerves, or tissues during surgery, leave medical equipment and foreign objects inside the patient, and fail to identify and treat signs of surgical complications. The reasons may vary, but the consequences for the patient are detrimental.

The Supreme Court, in the case of Vinod Jain vs. Santokba Durlabhji Memorial Hospital and Ors.,¹⁸ observed the standard of negligence. According to the Court, when assessing failure, the perspective to be considered is that of a doctor who possesses a particular skill or competence but not the highest level of expertise. In such cases, it is deemed satisfactory if the doctor exercises the skill level that an ordinary competent individual would exhibit in a similar scenario. This approach is primarily adopted for the benefit of the entire community, as it ensures that doctors prioritize the safety of their patients over their safety.

Medical Negligence and Consumer Laws

Individuals who provide medical advice and treatment implicitly assert that they have the expertise and knowledge to do so so that they can determine whether or not to take a case, decide on a cure, and deliver that therapy. A medical professional’s “implied undertaking” is referred to as this. The Supreme Court ruled in the State of Haryana v. Smt Santra case that every doctor “has to act with a reasonable degree of care and skill.”¹⁹

Medical professions and medical treatments fall into the category of services according to the regulations outlined in the Consumer Protection Act 2019. Healthcare practitioners must exercise prudence and expertise when applying legal standards and principles.

A doctor can’t guarantee the effectiveness of medical therapy if the appropriate standard of care for a specific procedure is followed, as this standard varies on a case-by-case basis. In the event of errors, doctors may be held liable for negligence and a lack of professional competence, as these are shortcomings that any competent medical practitioner should be able to avoid. Recognising that only some professionals in a specific field can possess exceptional talent or extensive knowledge is essential. It is crucial to note that the mere failure to treat a patient resulting in death does not automatically constitute medical negligence; there must be substantiating medical evidence or records demonstrating medical malpractice.²⁰

The medical profession was brought under the Consumer Protection Act, 1986 jurisdiction, under Section 2(1)(o)²¹, only after the Supreme Court’s ruling in the case of Indian Medical Association vs. VP Shantha.²² The Supreme Court made a significant decision by declaring that all medical services fall under the purview of the Consumer Protection Act. The esteemed justices, Mr. Justice Kuldip Singh, Mr. Justice S.C Agrawal, and Mr. Justice B.L Hansaria, engaged in a spirited debate on the crucial medical negligence matter.

The debate centered on whether a medical practitioner can be considered to be providing services as defined in Section 2(1)(o) of the 1986 Act. Section 2(1)(o) defines “service” as any form of service made available to potential users, including but not limited to banking, financing, insurance, transportation, processing, supply of energy, accommodation, housing construction, entertainment, amusement, and the dissemination of information, except the rendering of any service. The Supreme Court ruled that Medical Services should be regarded as “services” under Section 2(1)(o) of the Consumer Protection Act of 1986. It was clarified that medical services are not a personal service contract as no master-servant relationship is involved. Furthermore, the Court held that the Act covers medical services provided in exchange for payment. The Act also extends to the payment of consideration for medical services by a third party.

The Court also acknowledged that hospitals where specific individuals are exempted from payment due to financial constraints would be considered consumers. The most crucial aspect to consider in this scenario is the issue of free services. It was explicitly mentioned that medical services provided free of charge are not encompassed by Section 2(1)(o) of the Act.

In Dr. Kunal Saha v. Dr. Sukumar Mukherjee, the National Consumer Disputes Redressal Commission (NCDRC) tried to summarise medical negligence legislation. The medical profession has been brought within section 2(1)(o) of the 1986 Act, which defines the word services. The National Commission ruled in Vasantha P. Nair v. Smt. V.P. Nair²³ that a patient is a ‘customer’ and medical help is service. Except in circumstances of vicarious responsibility, a doctor is alone accountable for his actions. In the case of government hospitals, even if the doctor is at fault, the hospital is obligated to pay the compensation.

What Can Be Considered As ‘Services’?

The Contract of Service pertains to a relationship between a master and a servant that necessitates complete adherence to a just and reasonable command issued by the master to the servant regarding the method and manner of executing the command. The jurisdiction of the 1986 Act does not extend to this particular type of contract. On the other hand, the Contract for Service involves an agreement in which one party agrees to provide services, such as professional or technical services, to another individual or entity. In this arrangement, the provider of services is not subject to any form of control or direction but instead utilizes their professional expertise and exercises their knowledge and understanding. For the aforementioned “service” to fall within the scope of the definition of services outlined in Section 2(1)(o) of the Act, specific criteria must be fulfilled. Firstly, the service(s) must not be rendered free of charge. Additionally, services provided under a personal service contract are not subject to the regulations of the Consumer Protection Act. Consequently, medical services rendered under a personal services contract or provided free of charge do not fall under the purview of the definition of services as stipulated in Section 2(1)(o).

The burden of Proof

Except for situations where access is denied to family members, such as in a nursery, intensive care unit, or operating room, the burden of providing evidence lies with the patient or their relatives. Res ipsa loquitur refers to a state of extreme negligence in which the evidence speaks for itself, eliminating the need for further proof. In the case of Fardon v. Harcourt Rivington,²⁴ the court established the concept of the “reasonable man standard” in determining foreseeable capacity. According to this standard, negligence arises from failing to take precautions if danger is reasonably apparent. However, if the possibility of danger is speculative and would not occur to a reasonable person, there is no obligation to take extraordinary precautions. In the writ case of R Raheja vs. The Maharashtra Medical Council,²⁵ the Bombay High Court ruled that the patient or their legal successor can obtain complete copies of the medical record for a reasonable fee.

Consumer

The consumer, who is the ultimate recipient of the goods or services, plays a crucial role in consumerism. As per the provisions outlined in Section 2(7)²⁶ of the Consumer Protection Act of 2019, an individual who obtains services in exchange for consideration, regardless of whether it is for personal use or professional gain, and the beneficiaries of such services are required to have the explicit consent of the consumer. This encompasses offline and online transactions that employ electronic methods, such as teleshopping, direct selling, or multi-level marketing. However, it is essential to note that individuals seeking services solely for business are exempt from this definition. Notably, even a medical trust that renders services to its nurses can be categorized as a ‘consumer.’²⁷ Consequently, a patient, in their capacity as a consumer, is endowed with specific entitlements.

Firstly, the consumer has the prerogative to exercise autonomy in selecting their preferred medical practitioner. Before visiting a healthcare facility, the customer can acquaint themselves with the doctor’s qualifications and area of expertise. Furthermore, it is incumbent upon the doctor to elucidate the prescribed treatment or medication to the customer. In addition, the consumer has the right to be duly informed about the medication’s potential risks and adverse effects. They are also entitled to raise queries and express any concerns regarding the therapy. Moreover, doctors must uphold patient confidentiality concerning their medical condition. As a patient, the consumer is well within their rights to access information on the invoices they have settled.

If a patient is transferred to another medical facility, they have the right to be apprised of the reasons underlying this decision. It is incumbent upon the healthcare provider to furnish the patient with their medical records for future reference. Patients who are uncertain about the prescribed medications or therapy retain the right to seek a second opinion. Furthermore, when undergoing physical examinations by the attending physician, the patient is entitled to be treated with utmost respect and consideration for their privacy. Lastly, the doctor must obtain informed consent from the patient and any accompanying attendants or family members.

In summary, the consumer, as the ultimate beneficiary of goods and services, wields significant influence in consumer transactions. The Consumer Protection Act of 2019 outlines the criteria for defining a consumer, necessitating the consumer’s consent for availing services. This encompasses a wide range of offline and online transactions and does not apply to individuals who avail services for business purposes. Notably, even a medical trust catering to its nurses falls within the purview of a consumer. As a consumer, the patient is vested with a range of rights. These include the autonomy to select their preferred doctor, the right to be informed about prescribed treatments and medications, the entitlement to understand the associated risks, the ability to ask questions and voice concerns, the right to confidentiality, access to information about invoices, knowledge about transfers to other medical facilities, provision of medical records, seeking second opinions, and being treated with respect during physical examinations. In addition, the doctor must obtain informed consent from the patient and any accompanying attendants or family members.

Judicial Interpretation

In Smt. Vimlesh Dixit v. Dr. R.K. Singhal,²⁸ the court ruled that only the Chief Medical Officer’s report, which stated that the patient suffered from post-traumatic wrist drop, was produced. It is not stated that it results from any procedure or the doctor’s carelessness. An unadorned accusation of carelessness will only establish a case if it is supported by trustworthy evidence and expert testimony. The procedure was indeed carried out. It is also true that the plaintiff has significant expenditures, but she is only entitled to compensation once the doctor’s carelessness is shown.

In Dr. Kamta Prasad Singh v. Nagina Prasad,²⁹ the forum concluded that post-operative infection or limb shortening was not attributable to any negligence or failure in service by the opposing party appellant. Deficiency in service cannot thus be blamed on the other party.

In the case of Achutrao Khodwa v. State of Maharashtra,³⁰ the Supreme Court opined that there is a certain level of variation in the proficiency of medical practitioners, which depends on the individual doctor. Given the intrinsic nature of the medical profession, it is plausible for there to be multiple treatment options recommended for a patient. Consequently, the courts exercise caution when attributing negligence to a doctor, provided that the doctor has fulfilled his professional obligations to the best of his abilities and with due care and prudence. Notably, medical opinion may diverge regarding the most appropriate course of action within the medical community. Hence, the court ascertains whether the doctor has provided care to the patient per the prevailing medical standards. As long as the doctor has acted with ordinary care, skill, and diligence, and yet the patient fails to survive or suffers from a lasting ailment, establishing liability becomes challenging. Moreover, the Supreme Court has further ruled that res ipsa loquitur doctrine may apply in specific scenarios. For instance, in the case above, a towel was inadvertently left inside the woman’s peritoneal sac during a sterilization procedure at a government hospital, resulting in peritonitis and her subsequent demise. By applying the principle of res ipsa loquitur, the court concluded that the doctors were negligent, and consequently, the Government was held vicariously liable.

Similarly, in Aparna Dutta v. Apollo Hospital Enterprises Ltd.,³¹ the plaintiff underwent uterine removal surgery at the defendant hospital. During the procedure, an abdominal pack was left within the abdomen. A second operation removed an equivalent. The presence of foreign substances within the body following surgery was ruled to be an instance of res ipsa loquitur. The doctor who conducted the procedure and the hospital were found liable to pay the plaintiff Rs. 5, 80,000 in compensation.

Necessity of the Consumer Protection Act & its Application to the Medical Profession

This is the initial notion that arises in the minds of physicians. This stipulation has emerged due to the inherent deficiencies in the existing regulations of the nation, which encompass legal measures of instances of medical negligence under the Law of Tort and the Indian Penal Code. These flaws have been extensively documented and include the following instances:

• Delays, tend to be more pronounced in cases involving medical negligence.
• The exorbitant cost associated with initiating legal proceedings is notorious for surpassing the amounts recovered in damages.
• The restricted access to the judicial system.
• The attainment of a favorable outcome relies on the substantiation of both negligence and causation, a task that can prove particularly challenging in medical negligence cases.

As a consequence of the necessity to establish an alternative system that is easily accessible, expeditious, and cost-effective, the Consumer Protection Act was enacted. This Act was made applicable to doctors due to the absence of provisions within the Indian Medical Council Act 1956. This Act’s objectives include:

• To listen to the patient’s grievances attentively.
• To take appropriate action against the Medical Practitioner in the event of negligence.
• To provide compensation or any other form of redress if negligence is proven.

Conclusion

An unpredictable presentation of healthcare professionals for criminal negligence is counterproductive and ineffective for the general public. A connection between accountability, blame, and fair requirements must be established. The authors of Errors, Medicine, and the Law delve into the correlation between moral responsibility, blame, and fairness in the context of the medical profession and negligence. While professional needs should be attainable and adherence to standard models should be possible, this entails acknowledging the existence of human error and limitations in the execution of complex tasks. It is recommended that significant blame be assigned for instances of medical malpractice. In cases of negligence, the consequences should be severe.

Also Read: What is Medico-Legal work? What is the procedure to be followed?

References

• whether-negligent-services-offered-by-doctors-and-hospitals-free-of-charge-can-be-a-ground-for-medical-negligence-under-the-consumer-protection-act
• ncbi.nlm.nih.gov/pmc/articles
• consumer-protection-act/1062944/medical-negligence-india
• repository
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589192
• /medical-negligence-and-fixation-of-liability-under-the-consumer-protection-law-in-india
• A-DETAILED-STUDY-ON-MEDICAL-NEGLIGENCE-AND-CONSUMER-PROTECTION-ACT
• Medical_Negligence_and_Consumer_Rights_an_ANALYSIS?
• https://www.acadpubl.eu/hub/2018-120-5/2/184.pdf
• https://www.journalcra.com/sites/default/files/issue-pdf/7233.pdf

1. [1932] AC 562

2. (1957) 1 WLR 582

3. AIR 1969 SC 128

4. (2010) 3 SCC 480

5. Parmanand Kataria vs. Union of India, AIR 1989 SC 2039

6. Smt. Sudha Gupta v. State of Madhya Pradesh, 1999 (2) MPLJ 259

7. Marble City Hospital and Research Centre v. V.R. Soni, II (2004) CPJ 102 (MP)

8. Kanhiya Kumar Singh v. Park Medicare and Research Centre, III (1999) CPJ 9 (NC)

9. Inderjeet Singh v. Dr.Jagdeep Singh, III (2004) CPJ 20 (NC)

10. III (2000) CPJ 79

11. 1998 CTJ 7

12. Surinder Kumar (Laddi) v. Dr. Santosh Menon, III (2000) CPJ 517

13. Rajinder Singh v. Batra Hospital and Medical Research Centre and Anr, III (2000) CPJ 558

14. 2009 (2) SCC 40

15. (2010) 5 SCC 513

16. 2013(1)SCALE 606

17. (1954) 2 All ER 131

18. AIR 2019 SC 1143

19. 2000(5) SCC 182

20. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1

21. Consumer Protection Act, 1986, s.2(1)(o), No.68, Acts of Parliament, 1986 (India)

22. 1995 SCC (6) 651

23. I (1991) CPJ 685

24. (1932) 48 TLR 215

25. AIR 1996 Bom 198

26. Consumer Protection Act, 2019,s.2(7), No.35, Acts of Parliament, 2019 (India)

27. Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers and Ors., MANU/SC/1574/2019

28. I (2004) CPJ 123 (Uttaranchal)

29. III (2000) CPJ 283 (WB)

30. (1996) 2 SCC 634

31. AIR 2000 Mad 340