INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS VOLUME 4 ISSUE 4 ISSN

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1 MEDICAL NEGLIGENCE AND THE HEALTH CARE LAWS IN INDIA *ANUSHKA ARORA 1 INTRODUCTION Man is the only animal who believes in keeping order in his world. This was one of the reasons that he invented the concept of law. Law helped every man who suffered from an injury due to the acts committed by others, to seek remedy. It was in this time that the field of medicine was developing. Since no man is perfect in this world, mistakes ought to be committed. Such mistakes in the medical profession may lead to minor injuries or some serious kinds of injuries and sometimes these kinds of mistakes may even cause death. In such situations there arises a need for a remedy to the injured people so that justice is upheld and this gave rise to the concept of medical negligence. Professional negligence, more specifically, medical negligence is, as the term suggests, relates to the medical profession and is the result of some irregular conduct on the part of any member of the profession or related service in discharge of professional duties. Negligence is the breach of a legal duty to care. Thus legal duty of a person means the duty the law gives to every person to respect the legal rights of the other. Therefore the legal right of a person can be defined as the provisions provided by law to protect the interests of its citizen. We must remember then that where there is a legal right, there is a legal remedy for it. This is inferred from the maxim ubi jus ibi remedium. Medical negligence can be seen in various fields like when reasonable care is not taken during operations, during the diagnosis, during delivery of the child, with issues dealing with anesthesia etc. 1 USLLS, GGSIPU 5 th Year 34

2 PRIMARY HEALTHCARE This is a vital strategy that remains the backbone of health service delivery. India was one of the first countries to recognize the merits of primary healthcare approach. Long, India adopted a primary healthcare model based on the principle that inability to pay should not prevent people from accessing health services. This concept was derived from the recommendations of the Health Survey and Development Committee Report 1946, under the chairmanship of Sir Joseph Bhore. Thereafter, with beginning of health planning in India and first five year plan formulation ( ) Community Development Program was launched in By the close of second five year plan ( ) Health Survey and Planning Committee (Mudaliar Committee) was appointed by Government of India to review the progress made in health sector after submission of Bhore Committee report. The Jungalwalla Committee in 1967 gave importance to integration of health services. Alma-Ata declaration led to formulation of India's first National Health Policy in The National Health Policy, 2002 set out a new framework to achieve public health goals in socioeconomic circumstances currently prevailing in the country. Recognizing the importance of health in the process of economic and social development and improving the quality of life of our citizens, the Government of India has launched the National Rural Health Mission in 2005 to carry out necessary architectural correction in the basic healthcare delivery system. Lastly, The Twelfth Five Year Plan and draft health policy 2015 committed the country to increase public expenditure on health to 2.5% of GDP. KEY INVESTMENTS IN INDIA S HEALTH SECTOR Some of the major investments in the Indian healthcare industry are as follows 2 : 1. Cisco Systems Inc has entered into an agreement with Bengaluru-based healthcare services provider Narayana Health, to deliver affordable specialty healthcare services to patients remotely in various parts of the country. 2 Health Care Industry in India, 35

3 2. TPG Growth, the growth equity investment platform of TPG Global, has acquired a majority stake in Rhea Healthcare, which runs a chain of mother and child care centers under the brand Motherhood, for Rs 220 crore. 3. Apollo Hospitals Enterprise (AHEL) plans to add another 2,000 beds over the next two financial years, at a cost of around Rs 1,500 crore. 4. Practo Technologies Pvt. Ltd, India's largest online doctor discovery company, has acquired hospital information management solution provider Insta Health Solutions for US$ 12 million which will help Practo get access to more than 500 hospitals across 15 countries. 5. Aster DM Healthcare, Versante Software Technologies, American multinational technology and consulting corporation, IBM and many more. GOVERNMENT INITIATIVES Some of the major initiatives taken by the Government of India to promote Indian healthcare industry are as follows 3 : 1.The government has announced that 3,000 Jan Aushadhi Stores (JAS) under Pradhan Mantri Jan Aushadhi Yojana (PMJAY). 2.The Union Cabinet has approved signing of an agreement with the World Health Organisation (WHO) on traditional medicines. 3.The NITI Aayog (National Institute for Transforming India) seeks to bring reforms in India s public health system 4.Provisions made in the Union Budget such as: National Dialysis Services Programme to be initiated to provide dialysis services in all district hospitals to accommodate the increasing demand for dialysis session. A new health protection scheme for health-cover up to Rs 1 lakh (US$ 1,504) per family. Setting up 3,000 medical stores across the country to provide quality medicines at affordable prices. 3 See Supra 2. 36

4 Senior citizens will get additional healthcare cover of Rs 30,000 (US$ 441) under the new scheme 5.'Sehat' (Social Endeavour for Health and Telemedicine) has been launched to empower rural citizens by providing access to information, knowledge, etc and fulfilling the vision of a Digital India. 6.Prime Minister Mr Narendra Modi's government would provide all citizens with free drugs and diagnostic treatment, as well as insurance cover to treat serious ailments etc. 7. MEDICAL NEGLIGENCE Sharire Jharjharibhute Vyadhigraste Kalevare Aushadham Jahnavitoyam Vaidyo Narayano Harih This shloka avows that ''if the body (sharira) suffers from a disease, medicine is like the ''sacred water'' of the Ganga and the Physician/doctor is ''Narayana'' himself''. Thus, the people of India believe that a doctor (vaidyudu) is God(Narayana). 4 Negligence has been defined under Law of Torts by Ratanlal and Dhirajlal 5 as: Negligence is the breach of a 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 the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and 4 Y. SRINIVASA RAO,Medical Negligence rl=http%3a%2f%2farticlesonlaw.files.wordpress.com%2f2010%2f12%2fmedicalnegligence.odt&ei=i6tbvlusf4xiuatpiil4ca&usg=afqjcneisamel6xhlri9dyq9sgrdbkvoea&sig2=dggj W ZUdKP6PmCYLhnYxdA&bvm=bv ,d.c2E. 5 Malay Kumar Ganguly vs Sukumar Mukherjee & Ors AIR2010SC1162; Ratanlal & Dhirajlal, Law of Torts pages , (24 th Ed.2002). 37

5 skill, by which neglect the plaintiff has suffered injury to his person or property The definition involves three constituents of negligence: 1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; 2. Breach of the said duty; and 3. Consequential damage. The root of professional negligence can be found in the case of Donoghue v. Stevenson 6, where a woman succeeded in establishing that a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence. A medical professional is expected to have the requisite degree of skill and knowledge. The rule in professional negligence is a little different, for professionals such as medical practitioners an additional perspective is added through a test known as the Bolam 7 test which is the accepted test in India. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. This approach has been accepted in the judgment of the Indian Supreme Court in the case of Jacob Mathew v. State of Punjab. 8 The standard of care, when assessing the practice as adopted 6 Donoghue v. Stevenson [1932] AC Bolam v. Friern Hospital Management Committee, [1957] 1 WLR. 8 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1. 38

6 is judged in the light of the knowledge available at the time of the incident, and not at the date of trial. The Supreme Court in United States has also set forth a two part test in Bryant v. Oakpointe Villa Nursing Center 9 The Supreme Court stated the following two-part test for distinguishing between ordinary negligence claims and professional negligence: CONSTITUENTS AND ANALYSIS 1) Doctors are liable for negligence in failing to exercise proper care and diagnosis Doctors owe a duty of care in treatment to the deceased and the respondent doctors treated her in a manner highly unexpected from the people of health profession. A medical professional is liable for only those mistakes which arise from his ignorance or want of his skill. He is blamable in as far as he is the willful cause of such ignorance; he should have either known better or, not, knowing better, he should not have undertaken the case for which he knew he was not qualified. 10 It has been highlighted in the leading case of Jacob Mathew that full record of the diagnosis, treatment, etc. should be maintained. 11 In this case the the Supreme Court referred to the Code of Medical Ethics 12 drawn up with the approval of the Central Government under Section and observed Every doctor whether at a Government Hospital or otherwise has the professional obligation to extend his services for protecting life. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise cannot be sustained and, therefore, must give way. 9 Bryant v. Oakpointe Villa Nursing Center, NW2d 864 (2004). 10 PGA, Moral principles and medical practice, pp ; Modi on jurisprudence (1927) pp See Supra Code of Medical Ethics Regulations, Indian Council Medical Act,

7 Furthermore, if mistake is of such a nature as to imply an absence of reasonable skill and care on part of the doctor, taking into consideration ordinary level of skill in the profession, then the doctor would be held liable for negligence. 14 It is further put forward that if the doctor does not diagnose the disease properly or rather fails to diagnose it, that constitutes an act of negligence on the part of the doctor. In Wood v. Thurston 15 this was the main observation of the court. It is put forward that a professional man should have such awareness as an ordinarily competent would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of a polymath and prophet. 16 The legal doctrine of holding out imposes a liability of duty of care upon the doctors. 17 If a person holds himself out to the world as a physician or surgeon, the law implies a duty on his part to exercise reasonable 18 skill and diligence in the treatment of patients he may be called upon to attend, and does attend in a professional capacity. 19 The law will not countenance quackery and although the law does not require the most thorough education or the latest experience, it does require that an uneducated ignorant man, shall not 14 Philips India Ltd. v. Kunju Punnu, A.I.R Bomb. 306; rl=http%3a%2f%2fshodhganga.inflibnet.ac.in%2fbitstream%2f10603%2f5795%2f9%2f09_chapter%25203.pdf &ei=x9jcvmsnb4ueuqtisolodg&usg=afqjcnei1npx4zomboworyt54jzru1lsbq&sig2=9ayvbjytgduu Euz5CkxgsQ&bvm=bv ,d.c2E. 15 Wood Vs. Thurston (1953) C.L.C Eckersley vs. Binnie (1988) 18 CLR Dickson Vs. Hygienic Institute (1990) SC 552; R Vs Bateman (1925) 94 LJKB Jones MA, Medical Negligence, 2nd edition, Sweet and Maxwell (1996) chs Patten v. Wiggin, 51 Me

8 under the pretense of being a well qualified physician, attempt recklessly and blindly to administer medicines or perform surgical operations. 20 The Regulation of code of ethics regulation imposes a duty upon a doctor to be diligent enough in caring for the sick. 2) Duty to inform the patient about the ill effects and outcomes. The House of Lords judgment held in Chester v. Afshar 22 that a failure to warn a patient of a risk of injury inherent in surgery, however small the probability of the risk occurring, denies the patient the chance to make a fully informed decision. The judgment held that it is advisable that health practitioners give information about all significant possible adverse outcomes and make a record of the information given. It is put forward that the health practitioner should try to ensure that the person is able to make an informed judgment on whether to give or withhold consent on the basis of information supplied. The person are to be informed of any material or significant risks or unavoidable risks, even if small, in the proposed treatment; any alternatives to it; and the risks incurred by doing nothing. A Court of Appeal judgment stated that it will normally be the responsibility of the doctor to inform a patient of a significant risk which would affect the judgment of a reasonable patient. 23 The patients should be informed of the risks involved with the procedure of handling a particular disease and associated risks and it is to be ensured that patients have understood the information given Shearm and Red on Negligence ; Leighton v. Sargent, 27 Me (7 Fost.) Medical Council Of India, code of ethics regulation, 2002, (last updated December 2009). 22 Chester v. Afshar [2004] UKHL Pearce v. United Bristol Healthcare NHS Trust (1999) 48 BMLR GMC (2008) Consent: patients and doctors making decisions together. London: GMC. 41

9 3) Duty to obtain a valid consent from the patient The validity of consent does not depend on the form in which it is given. Written consent merely serves as evidence of consent: if the elements of voluntariness, appropriate information and capacity have not been satisfied, a signature on a form will not make the consent valid. 25 Patients and people accompanying them who are in a traumatic condition, lack the capacity to give consent as per Mental Capacity Act, They cannot understand the associated risk and consequences attached to the treatment being given, hence in such cases the doctors cannot claim defence on account of the patient undertaking document. As mentioned about the incapacity to give consent makes the document and consent invalid and not proper. The Mental Capacity Act 2005 defines a person who lacks capacity as a person who is unable to make a decision for themselves because of an impairment or disturbance in the functioning of their mind or brain. It does not matter if the impairment or disturbance is permanent or temporary. A person lacks capacity if: They have an impairment or disturbance (for example a disability, condition or trauma or the effect of drugs or alcohol) that affects the way their mind or brain works, and That impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made. An assessment of a person's capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general. A person is unable to make a decision if they cannot do one or more of the following things: 25 Reference guide to consent for examination or treatment (Second edition)- department of health, UK government. page 42

10 CASES OF MEDICAL NEGLIGENCE: DAMAGES AWARDED TO PATIENTS It was observed by Supreme Court in Kishan Rao s case 26 that the case before it was not complicated which required expert opinion as evidence. It was a simple case of wrong treatment. The patient complained of intermittent fever and chill and was being treated for typhoid instead of malaria. The breach of duty and care on the part of the respondent(s) resulted in consequential damage to the plaintiff. And therefore compensation 27 is to be awarded for the negligence of the doctors. In cases where there is a Breach of contract and an informed consent is not taken, it will lead to damages. 28 It is put forward that the impugned acts of doctors i.e. Doctors Negligence violates the right to health of the patient. In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, 29 right to health has been brought under the garb of Article 21 of the constitution of India and therefore right to health holds a place of prime importance under right to life guaranteed by the constitution. A negligent handling of the patient resulting in the death unquestionably constitutes violation of the constitutional guarantee. Even then by virtue of the Thin Skull Rule the negligent Doctors and institution are liable to pay damages to the plaintiff. 30 The Thin Skull rule states that: If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer s claim for damage that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart State of Gujarat and Ors. v. Laxmiben Jayantilal Sikligar MANU/GJ/0160/1999, Shishir Rajan Saha vs. the State of Tripura MANU/GH/0153/ id egligence&source=bl&ots=8rr0yhihax&sig=bpjwxlvqwm-wehypyivrl1g7rpk&hl=en&sa=x&ei=- 91bVPXvLtORuAS9loGAAg&ved=0CFAQ6AEwCA#v=onepage&q=causa%20causans%20and%20medical%20n egligence&f=true. 29 (1996) 4 SCC Athey v. Leonati SCR 458 ; R. V. Nette SCR 488 ; Fleckner v. Fleckner 2008 Ohio Dulieu v White and Son KB

11 As has been laid down in Poonam Verma v Ashwin Patel 32 a doctor is liable to compensate for the negligence caused as a result of trespassing in to a field of which he possesses little knowledge.in a similar case of Achutrao Haribabu Khodwa and Ors. V. State of Maharashtra and Others 33 the Hon ble Supreme Court held that the doctrine of res ipsa loquitur will apply and the plaintiff was entitled to damages where the nature of injuries suffered by the plaintiff s wife and ultimately the cause of her death had no relation with the condition for which she was being treated. This position was also maintained in the case of PM Ashwin (Master) v. Manipal Hospital 34 and in Ram Babu v. Dr. Anjani Kishore Pd 35 where damages were awarded on similar grounds. Also, the patients are entitled for damages by the respondents by virtue of Section 1a of the Fatal Accidents Act, 1855.whatsoever, the reasoning be put forward, the Courts in the present scenario have upheld that if a patient dies out of gross proved negligence by the doctors, the doctors and hospitals are liable for such negligence, as stated very clearly in the Anuradha Saha Case. The conflicting stance of such cases is hence settled by the landmark judgment by the Hon ble Court. RECOMMENDATIONS After a complete analysis of health care negligence by government and its bodies as well as medical negligence by doctors and professions following recommendations can be culled out. 1) Improvement in health care infrastructure and facilities and ease of access to them is the only way India can fight against diseases. For that to happen, government spending on healthcare must go up. However, the state of affairs, as they are now, is not very encouraging. 2) By a comparison and looking into the English Law, it can be said that there is a need for stringent laws and penalties for cases of such negligence. 32 (1996) 4 SCC AIR 1996 SC (1997) 1 CPR 393; (1997) I CPJ (1998) 2 CPR 223, (1998) II CPJ 684 (Bihar SCDRC). 44

12 3) 4) 5) 6) 7) According to the English law, the duty of care arises as soon as the person agrees to treat the patient using his skill and special knowledge. This kind of duty of care is also seen in case where the patient is in a contractual relationship with the doctor for his treatment. The duty is said to be imposed when the patient comes to the doctor with his problem. In Barnett v. Chelsea and Kensington Hospital Management Committee the Court held that the doctor not only owed a duty of care to those who were presented to him in his casualty unit but that, in these circumstances he should have ensured that the patients were properly examined. Ultimately the court claimed that the requisite standard of care was not maintained by the doctor. Many more such cases can be cited wherein we can note and see the stark difference between medical laws of India and other Foreign Jurisdictions. Further, there is need for similar studies and frequent audit of medical negligence cases to find out the new and emerging causes of medical negligence in future. Govt. should increase funding for healthcare and coverage by health insurance so that cost of healthcare can be controlled to some extent. Medical Ethics teaching and training on soft skills, especially of communication skills will go a long way in not only improving the quality of health care and satisfaction of patients but also in preventing medical negligence cases. Need for Classification of Medical Negligence Case and further Research. SUMMARY & CONCLUSIONS: To conclude, the primary healthcare system in India has evolved in due course of time but the challenges of future are needed to be addressed effectively. A professional is liable both under law of contract and tort. In general a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. It s still a long way for India to determine and analyze medical negligence cases, due to lack of requisite legislations and standards. But pertinent to mention that many investments as listed in this paper are being carried by the present government, which sooner or later shall be beneficial for the citizens. 45

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO. 636 OF 2017 [Arising out of SLP (Crl.) No.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 636 OF 2017 [Arising out of SLP (Crl.) No. 7186 of 2014] Dr. Sou Jayshree Ujwal Ingole.... Appellant(s) Versus