May 10,2022 | 5 min read

MEDICAL NEGLIGENCE IN INDIA | CONSUMER PROTECTION ACT, 2019 | Guest Series by Lawyered

MEDICAL NEGLIGENCE IN INDIA WITH IMPLICATIONS ON CONSUMER PROTECTION ACT, 2019

UNDERSTANDING MEDICAL NEGLIGENCE

Medical negligence is an irregular conduct by any member of the profession “or any related services during the discharge of professional duties. It was established in Joseph Alias Pappachan v. Dr. George Moonjerly (1) that anytime a doctor accepts a patient for treatment, he must treat the patient's disease with a fair degree of care and skill and so should not be negligent in his actions. Negligence is the breach of legal duty of care. Because everyone has unique rights granted by the state, it goes without saying that no one should violate the rights of others. However, when people do not follow this and infringe the rights of others, the law steps in to provide a remedy for the transgression.

In the case Jacob Mathew vs. State of Punjab (2), the Supreme court had observed that:

"Negligence is the breach of 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 use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered to his person or property..."

Simply put, negligence is a failure to exercise reasonable care that results in injury. In the case of medical negligence, however, the medical professional is expected to exercise a higher level of caution. As a result, the three-part test for medical negligence is:

1. The existence of a duty to care;

2. Breach or omission of such a duty

3. Suffering harm as a result of the omission or breach.

Civil or criminal culpability (in some situations, both) can be imposed on medical professionals and hospitals once they pass the three-part test.

CIVIL LIABILITY OF MEDICAL PROFESSIONALS

Those who have specialised knowledge, skill, and expertise in a particular field and utilise that expertise to treat others owe the other person a duty of care if a mistake is made while exercising that talent. As stated in the Laxman Balakrishna Joshi Vs. Trimbak Bapu Godbole (3) case, a doctor "is not required to employ the utmost possible degree of care, but he is expected to utilise a reasonable, fair, and competent degree of expertise."

MEDICAL NEGLIGENCE AMIDST COVID-19

Our legal system must strike a balance between doctors' autonomy in making judgments based on the patient's changing circumstances and the patient's entitlement to be treated equitably. It is a terrible fact that India's medical infrastructure is among the world's weakest and most overburdened (4), particularly during the Covid-19 pandemic. Furthermore, the current situation differs significantly from the ideal state. In light of the difficult conditions in which doctors work, some have suggested that medical practitioners be temporarily exempt from liability for medical negligence.

Although, experts are divided, on whether medical institutions should be granted complete protection because various examples have been recorded, ranging from carelessness to mismanagement to the unethical practise of overcharging patients. It is stated that entangling medical professionals in litigation at a time when they are already under a great deal of stress could demotivate the community. As a result, easing rules that hold them criminally accountable could give them much-needed breathing room. Another intriguing viewpoint is to look into alternative dispute resolution processes in which the patient can be reimbursed financially to the degree possible. The problem is to find a delicate balance between preserving the independence of medical practitioners in the face of severe resource constraints while also assuring the protection of a patient's rights and access to the best possible treatment during a pandemic.

MEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT, 2019

The Consumer Protection Act 2019 has a broader perspective than its counterpart 1987 Act. The aim is to protect the consumers interest and try to effectively handle their concerns. The Act is applicable to all over India.

Under the Act, the consumer, is defined under Section 2(7) of the Consumer Protection Act 2019, “who hires or uses any services for compensation paid or agreed or partly paid and partly promised or under any delayed payment scheme and includes any beneficiary of such services other than the individual who hires or uses the services for consideration paid or promised or under any deferred payment scheme where such services are used in combination with the customer”. This definition is broad enough to include the patient who avails the services on the payment basis.

Further section 2(11) of the Act defines the deficiency in the services which means and includes any error, insufficiency or failure in meeting the actual standards, manner or method of performance which is required as per the law to be followed and also any act of negligence or omission which causes damage or injury to the person concerned. The definition is also broad enough to include the deliberate concealment of information by any such person. 

WAY FORWARD

Medical negligence litigation is one of those grey areas of the law that has enthusiastic supporters on both sides. Rather than providing complete legal immunity, a more pragmatic approach should be used, permitting civil responsibility claims against the negligent doctor even if they are not accountable for criminal negligence. Furthermore, the federal and state governments must create a quick and open procedure to resolve civil responsibility claims. Importantly, the Hon'ble Supreme Court should publish comprehensive rules for adjudication of medical negligence cases after consulting with all stakeholders.

There are no two ways about it: our medical experts are giving it their all despite a severe shortage of key supplies such as medicinal oxygen, life-saving drugs, and in some cases, have had to confront violence. A doctor's death during this pandemic is no less than a soldier's death on the battlefield, and India will always be grateful for their great sacrifice. Therefore, it is right time for the Supreme Court to revamp comprehensive guidelines with respect to medical negligence cases. In the midst of the COVID-19 pandemic's uncertainty, the judiciary remains the only beacon of hope for individuals concerned about a lack of proper medical infrastructure and escalating incidents of medical negligence. There is hope that the Supreme Court will take the necessary steps to protect the people's faith and hope.

 

BIBLIOGRAPHY

(1)   Joseph Alias Pappachan And Ors. Vs Dr. George Moonjely And Anr. 1995 ACJ 253

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

(3)   Laxman Balkrishna Joshi vs Trimbak Bapu Godbole And Anr, 1969 AIR 128, 1969 SCR (1) 206

(4) Medical Dialogues Bureau, India Slips To 150th Rank in Healthcare: World Economic Forum, available at https://medicaldialogues.in/india-slips-to-150th-rank-in-healthcare-world-economic-forum

(5)  http://ncdrc.nic.in/

(6)https://blog.ipleaders.in/challenges-proving-medical-negligence-consumer-protection-act/

 

KEY WORDS 

Medical, Negligence, Doctor, Patient, Treatment, Disease, Skill, Hospital, Healthcare, Consumer, Consumer Protection Act, Law, Legal, Covid-19, Coronavirus, Liability 


Need Free Legal Advice or Assistance Online?


For any Consumer Protection Law related matter, please Post Your Requirement anonymously and get free proposals OR find the Best Consumer Protection Law Lawyers and book a free appointment directly.


POPULAR READS

Employee Handbook | Download Free Template


IP Assignment Agreement | Dowload Free Template


MEDICAL NEGLIGENCE | CONSUMER PROTECTION ACT, 2019 | Guest Series by Lawyered


Trademark: Law for Globalizing Trade


Recovery | Summary Suits | Commercial Courts Act


Data Privacy vis a vis Legal Developments


Rules and Regulations for Driver's Welfare


Article 35A | Indian Constitution | Property ownership of J&K Citizens


Application u/s 11 of Arbitration Act


ABOUT THE AUTHOR


Sagar Panghal

Sagar Panghal has done his graduation from Symbiosis Law School, Pune and currently pursuing PhD in Criminal Law. He is a Star Educator on Unacademy and teach young law aspirants for law entrance exams throughout India. He is a writer too and written books on CLAT and Judicial Services Exams under his own Publishing House by the name of Panghal Publications. He has worked in CID Maharashtra and selected for NIRF- A methodology invented by Ministry of HRD.

MORE IN BUSINESS