Haripriya Padmanabhan on Medical Negligence Need for Safeguards

Haripriya Padmanabhan Cite as: (2009) PL (CL) March 18 Every law is a double-edged sword. The Consumer Protection Act, 1986, under which the medical practitioners are also held to be liable for deficiency in service is no exception to this rule. . . Every law is a double-edged sword. The Consumer Protection Act, 1986, under which the medical practitioners are also held to be liable for deficiency in service is no exception to this rule. In 2006 the Supreme Court in Jacob Mathew case1 while laying down certain guidelines to protect doctors from unjust prosecution, had observed that these guidelines will hold good till the Government frames guidelines in consultation with the Indian Medical Association. Four years down, no guidelines have been framed by the Government and in yet another judgment of the Supreme Court in Martin F. DSouza v. Mohd. Ishfaq 2, the Court has reiterated the need for guidelines to strike a balance between the interests of patients and that of doctors against unjust prosecution. The Court in this judgment has also laid down certain additional safeguards to this end. In Indian Medical Assn. v. V.P. Shantha3 the Supreme Court clarified that the services rendered by a medical professional are services within the definition of the Consumer Protection Act and therefore medical practitioners are also liable for deficiency in service under the Act. Other than civil liability under the Consumer Protection Act, medical professionals can also be prosecuted for criminal negligence under the provisions of the Penal Code, 1860. The judgment in V.P. Shantha4, while definitely being a shot in the arm to patients, is also turning out to be a weapon being abused and wielded indiscriminately by certain patients. As is the case with most laws, there is need to frame guidelines, to strike a balance between the need to protect patients and the need to protect doctors from undue harassment and humiliation. As is the case with most laws, the Government has not come forward with any guidelines, and the difficult task of striking a balance has been left to the courts of law. While there are certain kinds of cases, where there can be no doubt about negligence by a doctor or a hospital (for e.g. where a pair of scissors is left inside the patients body after an operation or where the wrong limb/organ has been operated upon), there are many cases in which the doctors use their discretion to treat patients which may unfortunately in some cases prove fatal or damaging. The thumb rule followed for deciding medical negligence cases (popularly known as the Bolams Rule), is the test of the ordinary skilled man exercising and professing to have that special skill required in a given situation. The test is not whether the person has used the skill of the best expert in the field. If a professional who has the requisite skill, has exercised the skill with reasonable degree of caution and care, then he/she cannot be said to be negligent. In the landmark case of Jacob Mathew v. State of Punjab 5 the Court was faced with the issue of criminal negligence of doctors under IPC. While reiterating the principle in Bolam

case6, the Supreme Court in this case also held as follows: 48. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Specifically in regard to criminal negligence, the Supreme Court in Jacob Mathew 7 has held that, For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. 48. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. The Court in Jacob Mathew8 sounded a note of caution to ensure that doctors are not subjected to frivolous and unjust prosecutions. The Court laid down guidelines to ensure that medical practitioners are not unjustly harassed by criminal prosecution, till such time guidelines are framed by the Government in this regard. The guidelines in brief are as under: 52. ... (a) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. (b) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam 9 test to the facts collected in the investigation. (c) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. Despite the caution sounded by the judgment of the Supreme Court in Jacob Mathew case 10 number of cases against doctors appear to be on the rise. The Supreme Court pronounced a judgment in Martin F. DSouza v. Mohd. Ishfaq11 where it reversed a judgment of the National Consumer Disputes Redressal Commission holding the appellant doctor, Martin F.

DSouza liable under the provisions of the Consumer Protection Act. NCDRC while holding the doctor liable, had surprisingly ignored a doctors report, which was filed pursuant to the Commissions own directions, in which the doctor had clearly stated that there was no negligence by Dr. Martin F. DSouza. The Supreme Court in Martin F. DSouza12 while setting aside the judgment of the Commission, reiterating the Bolams Rule and the judgment in Jacobs Mathew case 13, has held that in cases against doctors, both civil and criminal, before issuing notice to the doctor concerned, the court should first refer the case to a competent doctor or committee of doctors. If the report states that there is a prima facie proof of negligence, only then should the court concerned issue notice to the doctor concerned.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369. (2009) 3 SCC 1. (1995) 6 SCC 651. Ibid. (2005) 6 SCC 1 at p. 33, para 48 : 2005 SCC (Cri) 1369. Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 at pp. 34-35, para 48 : 2005 SCC (Cri) 1369. Ibid. at p. 35, para 52. Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369. (2009) 3 SCC 1. Ibid. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369.