Home About us Editorial board Search Ahead of print Current issue Archives Submit article Instructions Subscribe Contacts Login 
Print this page Email this page Users Online: 1301

  Table of Contents  
REVIEW ARTICLE
Year : 2020  |  Volume : 13  |  Issue : 1  |  Page : 11-15  

Medical professionals and patients: The legal relationship in India


1 Department of Community Medicine, AFMC, Pune, Maharashtra, India
2 Department of Pathology, INHS Patanjali, Karwar, Karnataka, India
3 Department of ENT, 166 Military Hospital, Jammu and Kashmir, India

Date of Submission01-Apr-2019
Date of Decision15-Jun-2019
Date of Acceptance03-Sep-2019
Date of Web Publication16-Dec-2019

Correspondence Address:
Neeti Goyal
Department of Pathology, INHS Patanjali, Karwar, Karnataka
India
Login to access the Email id

Source of Support: None, Conflict of Interest: None


DOI: 10.4103/mjdrdypu.mjdrdypu_101_19

Rights and Permissions
  Abstract 


Background: Medical professionals being subject to law suits is increasing at feverish pace in India. Knowledge of Law applicable to medical care givers will not only keep them in good stead in court of law but also help in avoiding court cases by taking corrective measures in time. Issues: Professional negligence is at the heart of any medical law suit. It can be civil or criminal. It can be countered by the medical professional with contributory negligence, in which patient himself is responsible wholly or partly for the harm. Also, hospitals and employer can be made responsible, by virtue of Vicarious responsibility. Redressal: Institutions from where a patient can ask for redressal are Medical Council of India, Consumer Protection Courts, Civil Courts, Criminal Courts and Military Courts. MCI can suspend registration of medical practitioner for varying period of time and Consumer court can give monetary relief to the patient. Care giver who gives care completely free of cost is exempted under Consumer Protection Act. Civil and Criminal courts have powers to sentence convicted medical practitioner of fine or imprisonment or both. Action Skills: Medical professionals can avoid law suits against them by good communication with patients and relatives, meticulous record keeping, taking real consent, meeting BRAND criteria, following standard protocols, avoiding negative criticism of fellow care givers and keeping themselves abreast with laws and acts of the land.

Keywords: Courts, judgment, medical negligence, medical professionals


How to cite this article:
Gupta A, Goyal N, Dudeja P, Singh K. Medical professionals and patients: The legal relationship in India. Med J DY Patil Vidyapeeth 2020;13:11-5

How to cite this URL:
Gupta A, Goyal N, Dudeja P, Singh K. Medical professionals and patients: The legal relationship in India. Med J DY Patil Vidyapeeth [serial online] 2020 [cited 2020 Jan 23];13:11-5. Available from: http://www.mjdrdypv.org/text.asp?2020/13/1/11/272870




  Introduction Top


Relationship of a medical professional and patient through a legal prism is not very old, but fast mushrooming to be all consuming. With social media boom, awareness among the patients is at all time high and having paid for the medical service, patient feel that it is his/her right to get an error-free and highest quality service, though law may not entirely agree with this. In parts of the United States, prohibitory sums are charged for malpractice insurance, causing physicians to abandon medicine.[1] Medical law as an additional knowledge and skill can no longer be relegated to “desirable-to-know” category, with each action of medical professionals coming or bound to come in the near future under legal scrutiny.

This article covers various aspects of the existent law applicable on medical professionals in India and elaborate on professional skills, which are must in clinical practice to minimize the chances of medical caregivers' exposure to a lawsuit.


  Professional Negligence Top


It is defined as the absence of reasonable care or skill or willful negligence on the part of the medical practitioner in the treatment of the patient whereby the health or life of the patient is endangered. It is categorized into civil and criminal negligence. Civil negligence is subcategorized into malpractice and deficiency in service and criminal negligence into gross lack of competency, gross inattention, and reckless behavior.[2]

The Kerala State Consumer Dispute Redressal Commission in the case, K. Gracy Kutty v. Dr. Annamma Oommen has elaborated acts, which can be held as “negligent.” These include misrepresenting one's skill or expertise, recklessness in undertaking a treatment, indifferent handling, failure to act diligently and alertly at appropriate time, evident negligence such as amputating wrong limb or administering prohibited or counterproductive medicine, and unjustifiable wrong diagnosis or treatment. Acts, held as “negligent” by other judgments, include supply of contaminated blood by blood bank, doctor not providing postoperative care, unqualified person conducting delivery, and chemist selling medicine not prescribed by doctor, and this list is not exhaustive.


  Contributory Negligence Top


Contributory negligence is when patient's carelessness contributes to the harm, by his/her own act/omission. It may bar patients from recovering or may reduce the damages sentenced to the medical professional. It is diluted in the case of children and mentally impaired patients. Furthermore, it does not come into play in criminal liability. Examples include patients tempering with plaster leading to deformity at a joint, changing doctors, and glaucoma patients held contributory negligent for not taking follow-up treatment.


  Vicarious Liability Top


Law holds one person liable for the tortious acts of another, even though the other person has nothing to do with the commission of the trot, which is called vicarious liability, for example, an employer/hospital being held liable for the act of an employee/medical professional. In the case of Gold v. Essex County Council,[3] the court held the hospital liable for the negligent act of its radiographer and nurse. Exemption from it is, if patient himself/herself chooses the doctor and goes to hospital where he/she is employed.

For the claim for negligence to succeed, a plaintiff patient must prove that there was a duty of the medical professional toward the patient and there was a deficiency in that duty which has directly (causa causans) resulted in the damage. The damage may be physical, mental, or financial loss to patient or his/her relatives.

Patients aggrieved by professional negligence can get their redressal from the below-mentioned institutions [Figure 1]:
Figure 1: Institutions for patient redressal - institutions available to the patient aggrieved by professional negligence from where he/she can get redressal

Click here to view


  1. Medical council
  2. Consumer courts
  3. Civil courts
  4. Criminal courts
  5. Military courts (this is beyond the preview of the article and will not be discussed here).


Medical council

The Medical Council of India (MCI) is a medical ombudsman body established by the Government of India by an act of Parliament, MCI Act, 1956. It is entrusted with the responsibility of recognition of medical qualification, supervision of undergraduate and postgraduate medical education, recognition of foreign medical degrees, de-recognition, maintenance of medical registers, issuance of warning notices, taking disciplinary actions and appeal against them.

The MCI under article 18 of the MCI Act 1956 has the power to investigate any claims of violations of professional duties, malpractice, dishonesty, negligence, or breach of the code of practice against a registered person including a public officer, in respect of whom it holds a delegated power. Lack of proper and timely care, as expected from a registered medical practitioner, is categorized into the act of omission and act of commission.[4]

The punitive action after proper investigation by the MCI ranges from permanent striking of name from medical register so that the medical professional cannot practice his/her medical skills anywhere in the country, to suspending of registration from few months to years, depending on the severity of the violation.

Consumer courts

In a landmark supreme court judgment, in the case of IMA v. VP Shantha, the court inferred that services provided by a medical professional to the patient, in the form of consultation, lab investigation, and management, both interventional and noninterventional, would fall within the purview of the service of Consumer Protection Act (CPA) and the fact that medical practitioners are subject to disciplinary rules of the MCI would not exclude them from the purview of the act.[5] With this judgment, the skills offered by medical professionals were labeled as service, thus subjecting them to Section 2(1)(o) of CPA, 1986.

District forums and state and national commissions, also called consumer courts, established under CPA, 1986, have the same powers as bestowed with civil courts under the Civil Procedures Code (CPC), 1908. It includes delivering of commission and compelling attendance of the accused, examining him/her under oath, reception of evidence on affidavit, requisitioning of the laboratory test or investigation report from any pertinent source, and issuance of summons for the presence and examination of the witnesses.[6]

Services under the purview of the act include, where the patient has paid for his/her consultation; where payment is taken from some in government hospitals; services by the doctor under contract of employment to his/her employer; and services to the patient, whose expenses are borne by insurance company/employer. Those exempted under the act are, government/ non-governmental hospitals/nursing homes where services are offered free of cost to all patients, irrespective of their paying capacity and medical care under personal service contract.[5]

Civil courts

Persons can take remedy of civil courts by alleging civil negligence, i.e., dishonoring of contractual commitment by a medical professional when he/she accepted to take a patient under his/her care. In this case, negligence and damage as claimed have to be proved by the patient plaintiff. Monetary compensation claim in civil negligence may be based on a breach of contract, trespass to the person and battery, or law of trots.

Law of trots

Disregarding of commitment leading to damage/injury to the individual is called trot. It can be pursued in the civil court for action against a person responsible for it when appropriate remedy is available. Law of trots cannot apply if there is no suitable remedy because the core of this law is to give relief to the injured or who has suffered the damages. There are two aspects to the negligence, for which a medical practitioner may be held liable. First, he/she lacked the skills which he/she claimed to have and second, he/she failed to practice the skill he/she claimed with a fair degree of competence in the specific case. The degree of competence is passed through Bolam test.

Bolam test

The degree of competence which is expected from a medical professional was laid down in Bolam v Friern Hospital Management Committee case. It stated that a person need not possess the best of skill, it is enough to exercise average skill of an averagely competent person practicing in that particular field.[7]

The difference from CPA, 1986 is that here the patient need-not be a consumer. For example, where Govt. hospitals are involved, alleging violation of Article 21, case can be filed in Civil Court. Major disadvantage of this remedy is that its time consuming.

Criminal courts

The act comes under the purview of criminal courts when the degree of negligence is so severe that it cannot be monetarily compensated, such as in the event of death or severe injury to the patient. In such cases, medical professionals may be arrested by police after proper preliminary investigation and charged for culpable homicide in a criminal court.

The objective of the plaintiff is not to get only damages, but to ensure that the medical professional is put behind bars. Action is sought under the Indian Penal Code (IPC), 1980. Relevant sections are Sections 336, 337, and 338 pertaining to imperiling human life or well-being of others, by a negligent or cavalier act by a medical practitioner, and Section 304A, applied for causing death by such an act.

In the case of Dr. Suresh Gupta v. Govt of NCT of Delhi, it was judged that when due to a negligent management a patient suffers a major injury, the medical practitioner can be held responsible in civil jurisprudence to pay monetary compensation for damages under the law of tort. In addition, if the degree of neglect is so gross and reckless so as to imperil the patient's life, Section 304A of IPC can be applied on such individual making him/her liable for criminal offence of culpable homicide not amounting to murder.[8] In such cases, he/she is liable for punishment with fine, or imprisonment for 2 years, or both. It is a cognizable and bailable offence. A case under Section 304A of IPC cannot be absolved exclusively by applying the rule of res ipsa loquitur.

Res ipsa loquitur

It stands for, the thing or fact speaks for itself. Its key elements are that the injury could not have occurred without negligence, the defendant had full control over the injuring agent/treatment, and the plaintiff did not contribute to the injury. For example, amputation of the right leg instead of the left. In this scenario, the onus of proving guilt does not lie on the patient; instead, the medical professional has to establish his/her innocence.

Action skills for medical professionals

Communication

Communication is the key to a good doctor–patient relationship. Medical professionals who exercise patient-centered communication apprise and educate patients of various management options, answer queries genuinely, engage them in medical decision-making, listen prudently, calm concerns and worries, show compassion and respect, and demonstrate sensitivity to patients' cultural and ethnic diversity, to develop a relationship of trust and mutual respect.[9] It has been observed that, even when a patient has suffered significant injury as a result of a medical error or a wrong judgment, it reduces the chances of being subjected to a medical trial.[1] Communication should be alive, uninterrupted, and subtle. It also includes communication with a colleague and your senior advisor.

Medical recordkeeping

For quality medical care, recordkeeping is essential. It includes charting, accounting, and methodical storing of medical information.[10] Inpatient records are to be maintained for 3 years and are liable to be submitted on request within 72 h.[11] It is recommended to use automated hospital management systems to provide prescriptions, discharge notes, and patients' laboratory reports. In case the medical records are written by hand and they must be legible, for easy and correct understanding. It must be remembered that the single-most important factor of judgment in the court of law going in favor or against is medical records.

Consent

Not taking the patient's consent is medical negligence. Consent is broadly of two types, namely implied and expressed [Figure 2]. Expressed has subtypes namely informed, real, and oral.
Figure 2: Types of consent

Click here to view


Real consent

Consent in vogue in India is a real consent.[12] It is obtained after providing the patient with adequate information on significant risks (>10%) but not on rare or remote possibilities (<2%), and it differs significantly from informed consent. It is expected to meet BRAND criteria, i.e., Benefits of intervention, Risks associated with it, Alternatives (if any), No intervention (possibilities), and Documentation with signature (patient, caregiver, and neutral witness).

Consent may not be obtained during medical emergencies, person suffering from notifiable disease, immigrants, member of Armed Forces, handlers of food and dairy milk, new admission to prisons, on order of court for psychiatric examination, and on request of police by the use of force (Section 53 of CPC). The examination of females should always be done with a female attendant in presence.

Follow standard protocols

Standard protocols are assertions that have been scientifically developed and are intended to aid medical professionals decide on the treatment of specific conditions.[13] Their goal is to voluntarily establish higher standards of patient care. In medical negligence lawsuit, a key step by the patient is to demonstrate that the medical practitioner failed to provide competent care, as expected from him/her. The test traditionally applied in such cases is the Bolam test.[7] A medical care provider is not deemed negligent if the treatment given has been endorsed by a competent body in the relevant specialty and published as a standard protocol in the reference text or a peer-reviewed journal.[14]

Never criticize your colleague

Unsatisfied patients may choose to switch medical caregiver to take a second opinion, due to inadequate communication, undesirable outcome, or other reasons. When the intervention has been done, and the technical specifics of medical care were divergent from what you would have done in your practice, it is alluring to condemn the previous caregiver, which can have serious medico-legal consequences.[15] If a colleague is reckless or involved in an inappropriate behavior, the best way forward will be to communicate it to the institutes' ethics committee or other appropriate authority. Negative professional criticism does not increase ones' image in front of the patient and serves no other purpose than to shake his/her confidence in the whole profession.[16]

Know the law

The axiom “learning from one's own mistakes” is very little honored in medical care. The best way to handle medico-legal problems is to prevent them.[17] Knowledge of legal responsibilities is an integral part of the expanding clinical function. While most medical care providers remain abreast with the latest, through continued medical education conferences/programs/seminars/workshops, increasing cases in courts against medical professionals make it imperative to know and understand the law of the land applicable and amendments to various acts, released by the government from time to time. These should be followed in letter and spirit in one's clinical practice.


  Conclusion Top


Knowledge of law applicable to medical professionals can no longer be brushed aside, with the number of lawsuits against them increasing at a feverish pace. Aggrieved patients can seek redressal against their caregiver from the MCI, consumer courts, civil courts, and criminal courts. Medical professionals can avoid lawsuits against them by good communication with patients and relatives, meticulous recordkeeping, taking real consent meeting BRAND criteria, following standard protocols, avoiding negative criticism of fellow caregivers, and keeping themselves abreast with laws and acts of the land.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.



 
  References Top

1.
Huntington B, Kuhn N. Communication gaffes: A root cause of malpractice claims. Proc (Bayl Univ Med Cent) 2003;16:157-61.  Back to cited text no. 1
    
2.
Kaushal AK, editor. Standard principals of medical negligence and liabilities of a doctor. In: Medical Negligence and Legal Remedies. 4th ed. Gurgaon: Lexis Nexis; 2016. p. 332-57.  Back to cited text no. 2
    
3.
Gold v. Essex County Council (1942) 2 KB 293. Available from: https://swarb.co.uk/gold-v-essex-county-council-ca-1942/ [Last cited on 2019 Aug 14].  Back to cited text no. 3
    
4.
The Indian Medical Council Act (102 of 1956); 1956. Available from: https://mciindia.org/ActivitiWebClient/actnamendments/theMedicalCouncilAct1956. [Last accessed on 2018 Mar 21].  Back to cited text no. 4
    
5.
Agrawal S. Supreme Court of India. Indian Medical Association v. V.P. Shantha and Ors on 13 November, 1995. Available from: https://indiankanoon.org/doc/723973/. [Last accessed on 2019 Aug 14].  Back to cited text no. 5
    
6.
The Consumer Protection Act (Act 68 of 1986); 1986. Available from: http://ncdrc.nic.in/bare_acts/Consumer%20Protection%20Act-1986.html. [Last accessed on 2018 Mar 25].  Back to cited text no. 6
    
7.
Freckelton I. Bolam buried, belatedly? J Law Med 2017;24:525-37.  Back to cited text no. 7
    
8.
Dharmadhikari. Supreme Court of India. Dr. Suresh Gupta v. Govt. Of N.C.T. Of Delhi & Anr on 4 August, 2004. Available from: https://indiankanoon.org/doc/650550/. [Last accessed on 2019 Aug 14].  Back to cited text no. 8
    
9.
American Academy of Orthopedic Surgeons/American Association of Orthopedic Surgeons. The Importance of Good Communication in the Patient- Physician Relationship [Advisory Statement, Document No 1017] Rosemont, IL: American Academy of Orthopedic Surgeons/American Association of Orthopedic Surgeons; 2000. Available from: http://www.aaos.org/wordhtml/papers/advistmt/goodcomc.htm. [Last accessed on 2018 Apr 03].  Back to cited text no. 9
    
10.
Pirkle CM, Dumont A, Zunzunegui MV. Medical recordkeeping, essential but overlooked aspect of quality of care in resource-limited settings. Int J Qual Health Care 2012;24:564-7.  Back to cited text no. 10
    
11.
Code of Ethics Regulations, 2002. Medical Council of India, Amendment Notification. New Delhi; the 10th December, 2009. Available from: https://old.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx. [Last accessed on 2018 May 28].  Back to cited text no. 11
    
12.
Raveendran. Supreme Court of India. Samira Kohli v. Dr. Prabha Manchanda and Anr on 16 January, 2008. Available from: https://indiankanoon.org/doc/438423/ [Last accessed on 2019 Aug 14].  Back to cited text no. 12
    
13.
Department of Health. The New NHS: Modern, Dependable. London: HMSO; 1997. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/266003/newnhs.pdf. [Last accessed on 2018 May 28].  Back to cited text no. 13
    
14.
Samanta A, Mello MM, Foster C, Tingle J, Samanta J. The role of clinical guidelines in medical negligence litigation: A shift from the Bolam standard? Med Law Rev 2006;14:321-66.  Back to cited text no. 14
    
15.
Bal BS, Brenner LH. Careless physician criticism of a colleague can cause legal trouble. Orthopedics Today, August 2014. Available from: https://www.healio.com/orthopedics/business-oforthopedics/news/print/orthopedics-today/%7B6272974b-31c3-4d16-a4c18d62a27e014a%7D/careless-physician-criticism-of-a-colleague-can-cause-legal-trouble [Last accessed on 2018 May 29].  Back to cited text no. 15
    
16.
Thawani V. The doctor-doctor relationship: Professional criticism. Issues Med Ethics 2000;8:82-3.  Back to cited text no. 16
    
17.
Raveesh BN, Nayak RB, Kumbar SF. Preventing medico-legal issues in clinical practice. Ann Indian Acad Neurol 2016;19:S15-20.  Back to cited text no. 17
[PUBMED]  [Full text]  


    Figures

  [Figure 1], [Figure 2]



 

Top
   
 
  Search
 
    Similar in PUBMED
   Search Pubmed for
   Search in Google Scholar for
 Related articles
    Access Statistics
    Email Alert *
    Add to My List *
* Registration required (free)  

 
  In this article
   Abstract
  Introduction
   Professional Neg...
   Contributory Neg...
  Vicarious Liability
  Conclusion
   References
   Article Figures

 Article Access Statistics
    Viewed223    
    Printed23    
    Emailed0    
    PDF Downloaded64    
    Comments [Add]    

Recommend this journal