Medical Negligence: A Jurisprudence Which Ought To Go Through A Paradigm Shift

Who do we trust the most when we or our loved ones are ill? The doctors. However, what if the profession we trust the most acts negligently? Do we have a recourse? Who shall be held accountable? This is where laws against medical negligence safeguard us. In India, medical negligence cases are dealt with under tort law. This means that medical negligence is treated as a civil wrong. A civil wrong means that the act and effect of the act infringe a right of an individual.

However, as far as the laws are constructed for the safeguard against negligence, there have been instances where medical professionals have been subjected to harassment by filing false legal cases against them. This is also attempted to avoid payment of fees by looping in the medical professional in the long legal battle. This not only hampers the operational freedom and reputation of the professional, but also affects the mindset of the doctors in the country belonging to a profession which is responsible for the well-being of the society. The emotional and financial cost of these false cases not just affects the very individual professional but also inculcates a hesitation in taking bold steps during the treatment of patients.

Therefore, the aim of legislators should not only be to tackle the medical negligence cases but shall at the same time be to eliminate the chances of bogus cases against medical professionals.

The Key Elements of Medical Negligence Cases

A claim sought under medical negligence should essentially contain the following elements:

1. Duty of Care

2. Breach of duty of care

3. Direct relation between Act and Injury

4. Damage due to the injury caused

All the above-mentioned elements are required to be present in order to constitute a tortious act of medical negligence or malpractice against a healthcare professional. It is very important to accept that not all unfavorable outcomes of a medical treatment are the cases of medical negligence.

Duty of Care

A medical professional owes a duty of care to the patient. It not only means a moral duty but also a legal duty towards the patient. The patients expect a degree of care which is the best to cure their illness and provide them with relief. The care which is owed cannot be standard for each and every situation. Therefore, it is important that the degree of duty of care is subjective to the situation before the doctor even if the two patients suffer from a similar illness.

Breach of Duty of Care

If a healthcare professional fails to provide the requisite standard of care to a patient, which is less than what he / she could do in a given situation, then it shall be regarded as a case of medical negligence. It can be a case where the healthcare professional did not act as per the demand of the situation – the omission or did something which was not at all required in the provided situation – the commission.

Direct relation between Act and Injury

When the injury, loss or harm to a patient is caused by an act of omission or commission by a healthcare professional, then this paves the way for a right of legal recourse for the patient. The causation of an injury or harm directly from the negligent act of the doctor fulfills the requisite of a medical negligence case.

Damage due to the injury caused

After establishing a direct relation between the act of omission or commission of a healthcare professional and the injury / harm suffered by the patient, the last requisite is the damage suffered by the patient by such injury / harm. The damage can be tangible or intangible in this regard.

Medical Negligence under Consumer Protection Laws in India

In India, medical negligence is also dealt with under the Consumer Protection Act, 2019. Though medical services have not been explicitly defined in the definition of “services”, yet it is seen that the courts tend to seek the application of Consumer Protection Act in these cases. The Supreme Court in the case of Indian Medical Council v. V.P. Shantha, brought the medical services under the ambit of “services” under Section 2 of the Consumer Protection Act, 1986.

However, the aforementioned case has witnessed innumerable criticism from the community of medical practitioners. According to them, because of this stance by the apex court, healthcare professionals experience various false law suits against themselves, many to evade the pending medical bills. As per them, the noble profession of medicine is gaining unnecessary scrutiny wherein it is vulnerable to false law suits which can cost the reputation of their practice even if found not guilty of the offence afterwards. It is also argued that the interest and integrity of the profession of medical practitioners should also be taken care of along with the interest of the patients.

In the United States of America, medical negligence cases do not come under the ambit of Consumer Laws. All the states treat the cases of medical negligence on their own without a central remedy in place. They have different limitation period to file medical negligence case, varied bar on damages, various pre-suit requirements etc.

In the light of the same, Indian jurisprudence should also make medical practitioners immune from the consumer protection laws, which is the case with legal profession in the country. In this manner, the medical profession will achieve protection wherein doctors can achieve operational freedom. There can be more active role be assigned to disciplinary bodies to oversee the moral conduct to strengthen the medical profession and uphold its nobility debarring the role of courts through consumer protection law in this regard.

Code of Misconduct

In India, medical practitioners are governed by the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 made under Indian Medical Council (IMC) Act, 1956. This regulates that a physician shall not take favours or benefits in return of any medical treatment, surgery, operation or any other related advise. If found guilty, the State Medical Councils and the Medical Council of India can take disciplinary actions against the alleged act and can even debar the physician from the medical register.

The role of IMC shall be increased to deal with the cases of negligence so that the healthcare professionals also do not conduct their roles under an impression of fear.

Medical Negligence a Professional Misconduct?

Why aren't medical professionals treated in the same pedestals as legal professionals when the question is professional misconduct? In a recent judgement of Bar of India Lawyers v. D.K. Gandhi PS National Institute of Communicable Diseases and Anr., the Supreme Court of India cited the sui-generis nature of the legal profession behind the reason of it being ousted from the purview of the Consumer Protection Act. The judgement also added that Consumer Protection Act, 1986 and its re-enactment in 2019 had an intention to fight injustices bestowed upon the consumers from the manufacturers and traders. The Court further added that the intention behind the Consumer Protection Act was not to cover the services of the professionals. In light of the same, this shall only hold true when medical professionals are also kept outside the purview of the Consumer Protection laws in India.

The role of the statutory bodies shall be made more influential and robust in dealing with the professional misconduct cases. The role which is played by the Bar Council of India for the legal profession should also be acknowledged for the Medical Council of India for the medical professionals. It is only justifiable if the medical professionals are treated on the similar lines of legal professionals and are kept out of the ambit of criminal prosecution in the court of law.

In the instant case, the court also attempted to distinguish between the legal and the medical profession by citing that there is no threshold of duty of care or standard care involved in the former profession. While it is agreeable that the gravity of the profession of medicine holds a higher value as it involves the human life. The whole contention is that, the said judgement of “duty of care” or “breach of care” shall not be put in the hands of court of law but should rather be put before a panel of experts under the statutory body. The role of court of law shall be reduced to preserve operational freedom of the doctors the lack of which severely impacts their independence and judgement. The doctors should not be amenable to fear of a court case which, with a probability of being fake, can ruin their practice.

The analysis of legal landscape around medical negligence in India shows that there isn't any dedicated legislation for the same. It is either dealt with as a tort, as an act of criminal negligence or consumer trust breach in India or also as a case of professional misconduct.

However, to preserve the integrity and nobility of the medical profession, the cases involving an alleged negligence shall be undertaken under the purview of misconduct by the statutory body alone, eliminating the role of courts through the consumer protection laws.

The medical profession is one of the noble professions in the world and thus, it is the Hippocratic oath which is deemed to be the solemn moral caricature of the healthcare professionals without bringing them under the purview of strict legal codes in order to give them professional freedom to save lives – primarily offering them trust and faith in what they do for the wellbeing of the society.