Health Law First Draft

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SUBJECT: HEALTH LAW PROJECT TOPIC:

MEDICAL NEGLIGENCE IN INDIA WITH REFERENCE TO SAMIRA KOHLI VS PRABHA MANCHANDA

SUBMITTED BY

NAYAN SINGH ROLL NO. 1417 5TH YEAR, 10TH SEMESTER, B.B.A.LL.B (HONS.)

SUBMITTED TO:

MR. KUMAR GAURAV (FACULTY OF HEALTH LAW)

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA,

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OBJECTIVES The objectives of the research paper are the following: 1. To present a detailed study as to what is meant by medical negligence. 2. To know about the deficiency in medical services and medical malpractices. 3. To understand the remedies availableto the victims of medical negligence under various laws of India. 4. To know about the recent trends of the judiciary in the matters pertaining to medical negligence.

HYPOTHESIS The researcher has used the arguendo that cases of medical negligence have to be dealt with a difference. They are not the same as occupational negligence. Simple lack of proof or error of judgment shall not amount to professional negligence.

RESEARCH METHODOLOGY The researcher has adopted doctrinal method of research. Various books, articles, law journals, Acts etc. will be referred for the preparation of this project work. The sources used for the collection of materials regarding this topic will be primary as well as secondary sources. A uniform method of citation shall be followed in this whole project work.

REVIEW OF LITERATURE Speaking for Indian context, academic and research endeavors revolving literature. In addition to the influential impact of English Common Law Jurisprudence, the literature under review quite explicitly reflects analysis of judicial decisions rendered by various Courts and Consumer Forums, Research Articles, Text Books and Commentaries. By and large, the literature under review depicts the following, though not in a segmental and coherent manner:

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3 I. Premise of medical negligence liability. The extent and amplitude of the liability is explored. II. Evolution of medical negligence liability. The role of informed consent has only become prominent due to the rising ethical concerns evolving in the practice. III. Paradigm shift in Judicial Interpretation with the Bolan Test and the case of Saminra Kohli vs Prabh Manchanda, and related afterthoughts; The Bolan Test has drawn a line of objective skill and care required for operating patients while Supreme court through Samira Kohli case has provided guidelines that in all cases must be adhered to safeguard the bodily integrity of the patient. IV. Criminal liability for medical negligence understanding on the part of Judiciary; The imposition of criminal liability is just to ensure that doctors become answerable and more responsible while dealing with patients. It ensures they don’t flout the norms and get away with it.

CH-1 INTRODUCTION In everyday usage, the word negligence denotes mere carelessness. Meaning of Negligence: Negligence has two meanings in law of torts: (1) Negligence as a mode of committing certain torts, e.g., negligently or carelessly committing trespass, nuisance or defamation. In this context, it denotes the mental element.(2) Negligence is considered as a separate tort. It means a conduct which creates a risk of causing damage, rather than a state of mind. The House of Lords in Donoghue v. Stevenson,1“treats negligence, where there is a duty to take care, as specific tort in itself, and not simply as an element is some more complex relationship or in some specialized breach of duty. Medical malpractice can be defined as a professional negligence by act or omission by a health care provider in which the treatment to be provided falls below the accepted standards of practice in the medical community and in turn causes injury or death to the patient, with most cases involving medical error. Therefore any negligence by an act or omission of a medical practitioner in performing his/her duty is referred as medical negligence.The standard of skill and care required of every health care provider in rendering professional services or health care to a patient shall be that degree of skill and care which is ordinarily being employed in the same or similar field of medicine as defendant, and with use of reasonable care and diligence.2 Donoghue v. Stevenson, (1932) UKHL 100. Market and Regulatory Approaches to Medical Malpractice, https://www.ncbi.nlm.nih.gov/books/NBK218654/, last seen on April 01, 2019. 1 2

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“In medical profession, skills may differ from one doctor to another and there is always more than one alternative course of treatment is available, which are all admissible. Negligence can’t be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one, he wouldn’t be liable if the course of action chosen by him was acceptable to the medical profession.” With an idea of protecting the consumers The Consumer Protection Act, 1986 was enacted by the legislature to arm each and every consumer and consumer associations with rights to seek speedy, cheap and efficient remedies which are proving to be very popular and effective as well, leaving behind a trail of rulings and findings under which so many people have been benefited. Consumer complaints are growing at a fast rate of 20%. But at the same time patients who belong to the lower income groups or those who are illiterate, do not get the benefit of the Act. Doctors often get away with their act of negligence, because the patients neither have the medical knowledge nor sufficient evidence to fight their case. Therefore these situations are favourable to the doctors and corporate medical firms. According to present legal position, a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another 3. He would be liable only where his conduct falls below that of the standards of a reasonably competent practitioner in his field. For instance, the surgeon is liable, if he leaves surgical gauze inside the patient after an operation.4 The word health is changing in its contents radically after the World Health Organisation defined the term positively as a state of complete physical, mental and social wellbeing, and not just the absence of diseases and wellness5. As per the Constitution of the World Health Organisation, everyone has a right to have the highest standard of Health. 6 Such a fundamental right shall be available to all without distinction of race, religion and political belief, economic or social condition that health of all people is fundamental to the attainment of peace and security.7 After the establishment of the World Health Organization, the right to health care was recognized internationally, and various international conventions recognized the importance of the right to health care. The objective of the organization is declared as the attainment by people, of the highest possible level of health.8

Jacob Mathew vs State Of Punjab & Anr, Appeal (crl.) 144-145 of 2004. A Comparative Analysis of Various Indian Legal Systems Regarding Medical Negligence, available at: http://www.legalserviceindia.com/medicolegal/mlegal.htm, last seen on April 01, 2019. 5 Preamble to the Constitution of the World Health Organisation. 6 Ibid. 7 Article 22 and 25(1) of the Universal Declaration of Human Right. 8 Article 1 of the Constitution of the World Health Organisation. 3 4

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CH-2 LAWS RELATING TO MEDICAL NEGLIGENCE With the Consumer Protection Act, 1986 coming into effect, a number of patients have filed cases against doctors. Public awareness of medical negligence in India is rapidly growing. Hospital’s managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods. After the Consumer Protection Act, 1986 has come into force patients filing legal cases against doctors, have established that the doctors were negligent in their medical service, and have also claimed and received compensation. Therefore, a number of legal decisions have been made on what constitutes negligence and what is required to prove it.9 Doctors in India may be held liable for their services individually or vicariously unless they come within the exceptions specified in the case of Indian Medical Association v V P Santha10. “Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus free treatment at a nongovernment hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986.” Burden of Proof and Chances of Error The burden of proof of negligence, carelessness, or insufficiency generally lies with the complainant. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. In cases of medical negligence the patient must establish her/ his claim against the doctor. In Calcutta Medical Research Institute vs Bimalesh Chatterjee it was held that the onus of proving negligence and the resultant deficiency in service was clearly on the complainant 11. In Kanhaiya Kumar Singh vs Park Medicare & Research Centre, it was held that negligence has to be established and cannot be presumed.12 Concept of Gross Negligence & Recklessness Before the case of Jacob Matthew’s case, the Supreme Court of India delivered two different opinions on doctors’ liability. In Mohanan vs Prabha G Nair and another 13, it ruled that a doctor’s negligence could be ascertained only by scanning the material and expert evidence that might be presented during a trial.

IPC & Medical Negligence

K K S R Murthy, Medical negligence and the law, available at: https://ijme.in/articles/medical-negligenceand-the-law/?galley=html, last seen on April 04, 2019. 10 Indian Medical Association vs V P Santha, AIR 1996 SC 550 11 Calcutta Medical Research Institute vs Bimalesh Chatterjee, (1999) CPJ 13 (NC). 12 Kanhaiya Kumar Singh vs Park Medicare & Research Centre, III (1999) CPJ 9 (NC). 13 Mohanan vs Prabha G Nair and another, (2004) CPJ 21(SC). 9

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Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and338 contain the law of medical malpractice in India. A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.14

CH-3 BASIC FEATURES OF MEDICAL  NEGLIGENCE AND STANDARD OF CARE To comprehend the scope of negligence, it is important to understand the scope of the duty imposed on a doctor or medical practitioner. A doctor or other medical practitioner, among others, has a duty of care in deciding whether to undertake the case or not, duty in deciding what treatment to give, duty of care in administration of that treatment, duty not to undertake any procedure beyond his or her control, and it is expected that the practitioner will bring a reasonable degree of skill and knowledge and will exercise a reasonable degree of care. 9 Negligence, simply put, is a breach of duty of care resulting in injury or damage.

CH-4 ROLE OF INFORMED CONSENT “Informed consent” is a technical term first used in a medical malpractice US court case in 1957. Whereas various cultures in various places practiced informed consent, the modern concept of informed consent was developed by people who drew influence from Western tradition. .

Ethical Elements of Informed Consent There are two ethical justifications for the claim that medical practitioners should get consent from patients for tests or treatments. The first is based on the moral (and ethical) principle of 14

Section 90, The Indian Penal code,1860.

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autonomy, according to which a person has a right to determine the course of her own life and to be free (within limits that must themselves be justified) from interference by others. A central aspect of this right is a person’s right to bodily integrity. It is impermissible for any person (including a medical practitioner) to invade or manipulate the body of another without permission. The second is based on the ethical principle of beneficence, according to which medical practitioners should act out of compassion or concern for their patients and aim at doing what will be best for them.

Exceptions for Obtaining Consent There are two exceptions to the common law rule where less information may be justifiable: i. Therapeutic privilege: ii. Emergency life-threatening situation:

CH-5 JUDICIAL DELIBERATIONS ON INFORMED CONSENT Barring physical examination, informed consent is necessary for every medical examination and surgical procedures, which should be obtained in or in the presence of disinterested party. Informed consent is also required in anesthesia (local, regional, or general) with explanations regarding the procedure of anesthesia, its complications during the procedures, and it‟s after effects. If during the ongoing procedure any extension of the procedure is required which is not covered, fresh consent should be insisted.

Samira Kohli vs Prabha Manchanda In India, the extent and nature of information required to be given by medical practitioners to the patient in order to obtain a valid consent is governed by the Bolam test 15 and not by the "reasonably prudential patient" test evolved in Canterbury.16 In Samira Kohli vs Prabha Manchanda,17 on evidence the patient had given consent for laparoscopy and not for hysterectomy (removal of uterus) and bilateral salpingooopherectomy (removal of ovaries and fallopian tubes). In the absence of any medical emergency, consent given by the patient's mother when the patient was a competent adult,

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(1957) 1 WLR 582 Canterbury v. Spence, 464 F 2d 772: 150 US App DC 263 (1972) 30.

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was not a valid consent. Moreover, the consent given by the mother for hysterectomy did not amount to consent for bilateral salpingooopherectomy.18

CH-6 ENFORCEMENT MACHINERIES Enforceability under tort law The damages are awarded by the Civil Court, and each and every suit shall be instituted in the Court of the lowest grade competent to try it. A suit for compensation may be instituted at the option of the plaintiff either in the court within the local limits of whose jurisdiction the wrong is done, the cause of action arises or in the court within the local limits of whose jurisdiction the defendant resides, or carries on business, or personally works for gain. A huge amount of court fee is required to be paid in any suit for compensation on the allegation of medical negligence. Moreover a much quicker and cheaper remedy is available to the consumer of medical service under different Consumer Disputes Redressal Agencies established by the Consumer Protection Act 1986.Another common law enforcement system is through the Criminal Court.19 Enforcement of Criminal Liability Criminal Liability is mainly enforced though the criminal court with respect to the provisions of Indian Penal Code and Criminal Procedure code. Enforcement Mechanism under Indian Consumer Protection Act The agencies which have been constituted under the Act for redressal of consumer grievances are to adjudicate disputes at the district, State and National level. The District Consumer Disputes Redressal Forum in each district of the State established by the State Government is also known as District Forum. Appeal and Revision As earlier stated, subject to the pecuniary limits, the District Forum is the first court in the hierarchy of agencies under the Act.20 The State Commission has jurisdiction to entertain appeals against the orders of any District Forum within the state. Any person aggrieved by an order of the District Forum may prefer an appeal to the State Commission within thirty days from date of the order21. However, delay in filing an appeal may be condoned if sufficient cause is shown. Similarly, the National Commission has jurisdiction to entertain appeals against the orders made by a State Commission.22

60 Samira Kohli: v. Dr. Prabha Manchanda (2008) 2 SCC 1 Supra N 35. 20 Section 17 (a) (ii) of the Consumer Protection Act of 1986. 21 Section 15 of the Consumer Protection Act of 1986. 22 Section 21(a) (ii) of the Consumer Protection Act of 1986. 18 19

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CH-7 EVOLUTION OF MEDICAL JURISPRUDENCE THROUGH LAWS AND DECISIONS The Apex in the recent years has based its decisions on a balanced note. Wherein though the rights of the patients has been given the upper hand the apex in its view has kept an eye to maintain the interest and safeguard the interest of the practitioners; the following which can be better understood with the landmark judicial precedents which have paved a way for the evolution of medical negligence. Landmark Judgements and Judicial Precedents In Vineetha Ashok v. Lekshmi Hospital23 the court declared that if there is any mistake in the process of diagnosis, it cannot be considered as a case for medical negligence. Thus the court made a valuable contribution in upholding the professional freedom of doctors. In Spring Medow 's Hospital case24, court declared that “the parents can act as potential consumers on behalf of minor child. They can bring the compensation suit before court. This was the positive stand of court to provide maximum access to justice.”

CONCLUSION AND SUGGESTIONS BIBLIOGRAPHY A) BOOKS:  

Anoop K. Kaushal, Medical Negligence and Legal Remedies,Universal Law Publishing Company Pvt. Limited. B. Sandeepa Bhat, Reflections on Medical Law and Ethics in India, Eastern Law House Private Limited.

B) JOURNALS: 

Aditya Singhal, The Veracity of Laws relating to Medical Malpractice in India, International Journal of Scientific and Research Publications (ISSN: 2250-3153), available at: http://www.ijsrp.org/monograph/Veracity_of_laws_relating_to_medical_malpractice_ in_India.pdf

B) WEBSITES:  23 24

http://medind.nic.in/jal/t15/i1/jalt15i1p50.pdf.

Vineetha Ashok v. Lekshmi Hospital, Appeal (civil) 2977 of 1992. Spring Meadows Hospital v. Harjol Ahluwalia, AIR 1998 SC 1801.

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http://shodhganga.inflibnet.ac.in/bitstream/10603/124067/16/16_conclusion.pdf. http://www.ijsrp.org/monograph/Veracity_of_laws_relating_to_medical_malpractice_ in_India.pdf. http://www.legalservicesindia.com/article/1685/Test-of-Medical-Negligence.html. https://ijme.in/articles/medical-negligence-and-the-law/?galley=html.

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