Indian Journal of Forensic Medicine & Toxicology

Nishat Ahmed Sheikh

Asst. Professor of Forensic Medicine, Kamineni Institute of Medical Sciences, Narketpally District Nalgonda, State Andhra Pradesh 508254, India

Introduction

Negligence is an integral part of human nature and Doc’s are no exception to this⁹. Doctor’s were, are and will remain accountable for their professional misconduct or Medical Negligence¹. Consumer protection act 1986 was enacted by parliament to provide for better protection of the interest of consumers in the background of guidelines contained in the consumer protection resolution passed by U.N. general assembly on 9th April 1985.

This act has been enacted to give better protection to the interest of the consumer and to provide speedy remedy in case of dispute between the consumer and the seller. Consumer should get goods -of standard quality from sellers, good services from agencies and should not suffer from employees of corporation, companies and government. It is a shortcut, but effective and speedy remedy provided to the people, to save them from unskilled, incompetent and negligent persons providing services⁴.

In the beginning, the medical practice was not covered under this act, but due to the landmark of judgement of Supreme Court in Nov 1995 (IMA vs V. P. Shantha) the medical practices, barring some minor exception came within the ambit of CPA.

The legal procedure followed by the law courts are complicated, lengthy and costly beyond the reach of common and poor people, who can easily approach and get justice with very nominal cost and in a short time in the consumer dispute redressal forum where the doctors may be required to pay large amount as a compensation depending on the degree of loss and nature of negligence.

Definitions (Meaning)

Consumer: user of product or service by paying money
Forum: law court, place of public discussion.
Redressal: ( Redress = to remedy) compensation, reparation.
Plaint: a Statement of Grievance in court.
Plaintiff: Complainant, prosecutor in law suit.
Prosecute: To bring legal suit.

Constitution / Formation

It is Quasi – judicial – Members are appointed by the government having term of 5 years or up to 65 years of age¹⁰.

Procedure of making complaint by the Plaintiff / Consumer

• No prescribed form needed.
• Complaint can be filled on plain paper.
• By consumer himself or his Lawyer.
• By recognised consumer association on behalf of consumer.
• Complaint can be filled personally or even by post to the appropriate forum.

Plaintiff has to make complaint in the following manner

• The nature of the complaint with full details.
• Name and address of the opposite party.
• Nature of the loss / injury / defect / deficiency.
• Nature of compensation and amount claimed.

1. No lawyer or court fee is required.
2. Forum should deliver its decision within 90 days (3 months).
3. Forums decision has the same legal sanctity as the verdict of civil court.
4. Provision of appeal is there to the next higher level and ultimately to the supreme court of India.

Action by forum on receipt of complaint

• Forum on receipt of complaint refer a copy of the complaint to the concerned person to give his version of the case within 30 days, which can be extended up to 15 days more by permission of the forum.
• If analysis or test is needed to confirm the alleged defect, the sample is obtained from complainant and sent to appropriate laboratory and complainant is asked to deposit the cost for such test.
• Maximum period to get the result of test or analysis granted by the forum is 45 days.
• Upon receiving the result of test or analysis, the complainant if found to be true, the concerned party is referred to give his version within 30 days and after that the dispute is settled accordingly.
• If dispute regarding some defective goods, the forum decides that the defect should be corrected if possible, or it should be replaced or the cost of goods should be paid.
• In addition to that, some fine can be recovered.
• Appeal against decision of the forum can be made in the higher court within a period of 1 month or 30 days. Reason for including Medical Profession in CPA.
• Medical council of India has not been effective in crubing Malpractice, rather it is said that it tend to shield the Doctors as its Ethical comities is dominated by the doctors.
• There are provision to deal with cases of malpractice, negligence etc. through various enactments by the Government but the legal procedure followed by the law court are lengthy and costly, beyond the reach of common and poor people⁸.

In the act itself there is no mention of medical service, but the supreme court judgement by a bench comprising of three judges have held that doctors and hospitals who renders services as medical practitioners are accountable for any act of medical negligence and ruled that they can be sued for compensation under the consumer protection act provided the service has not been rendered free.

Short Title	Full Title	Level of Establishment	No of Members	Type of Members	Jurisdiction in term of cost of goods or services
District forum	Consumer dispute redressal forum	District level	3	- District Judge, – 1 member of eminence, – 1 lady social worker	Dispute involving upto Rs. 20 Lacs.
State commission	Consumer disputes redressal commission	State level	3	- High court judge, – 1 member of eminence, – 1 lady social worker	Dispute involving between Rs. 20 Lacs and 1 crore.
National commission	Consumer dispute redressal commission	National level	5	- Supreme court judge, - 3 members of eminence, - 1 lady social Worker	Dispute involving more than Rs. 1 crore

Penalties

• Non compliance of any order made by the District forum, state commission or national forum is punishable with imprisonment ranging from 1 month to 3 years.
• Dispute is settled on the basis of the evidence brought to its notice by the complainant.
• Cases are decided on the basis of equity, conscience and natural justice.
• Forum has the same powers as are vested in a civil court under the code of civil procedure 1908.

A high court lawyer, who has fought cases on behalf of the patients in Delhi high court, believes that there are not enough safe guards for the doctors. “Bringing doctors within the purview of the consumer protection act is to deliver speedy justice. No doubt, it is a laudable objective and a long overdue need. The doctors cannot escape responsibility for their negligence. They should be held accountable, but I think there should be safe guards both for the patients and doctors”, like screening of complaints^1,2.

Lawyers say that the screening process will eliminate frivolous cases at the notice stage itself besides acting as a deterrent for the ambulance chasers (a term used for lawyers soliciting patients) now we find lawyers encouraging patients to file complaints against their doctors to earn a fast duck. The scope for blackmail is immense.

Legal experts say that even if there was a screening process, the anomalies in trying a doctor in a consumer forum will not end⁵. The very basis for such adjudications depends on deciding the question of negligence. What is a medical negligence? And how it is distinct from an error of judgement? Legally, a doctor is liable for action for negligence if he fails to exercise that degree of care and skill which is to be expected of the average practioner of the class to which he belongs. There are certain cases where the negligence is obvious like the amputation of wrong limbs, leaving a swab or a pair of scissor in the body or removing a uterus instead of kidney or injecting penicillin instead of chloroquin. In such cases, a decision can be arrived at on the basis of documents and medical records note. The problem arises in cases of negligence which have allegedly occurred during a surgery or delivery.

Who will decide whether the surgeon has followed the standards laid down in an authorised medical textbook?

Who will decide whether the doctor’s decision to adopt the latest surgical techniques is negligence or merely an error of judgement or if a doctor continues to adopt a technique which has been found dangerous in latest researches, can he be called negligent?

If a doctor prescribes a certain medicine which is later found to be ineffective, can he be sued for negligence?

Can a retired judge heading the forum or the commission go into these fine medical distinctions and decide a case?

While each party is preparing to derive maximum possible benefit out of the apex court ruling, it is necessary to bear in mind that standard of Medicare differ from place to place.

A doctor treating an ailment in a state of the art hospital is expected to provide a higher standard of care from one practising in a rural health facility^9,11.

Vicarious liability (Liability for act of another person)

An employer is responsible not only for his own negligence, but also for the negligence of his employees; if such acts occur in the course of the employment and within its scope:

Two conditions must be satisfied for this purpose:

• There must be an employer – employee relationship.
• The employees conduct must occur within the scope of his employment while on job.

In big Hospitals, the principal doctor becomes responsible for any negligence of his assistants. Both may be sued by the patient, even though the principal doctor has no part in the negligence act.

• When two doctors practice as partners, each is liable for negligence of other, even though he may have no part in negligent act.
• When two or more independent doctors are attending on a patient, each may be held liable for the negligence of others, that he has observed or should have observed, and allowed it to continue without objection.
• If one doctor assists another in the operating room for a fee, the assistant is considered as an employee of the principal Surgeon.
• If a swab, sponge, instrument etc, is left in the patient’s body after operation, the surgeon is liable for damages.
• A surgeon is not liable for the negligence of Anaesthetist, and the anaesthetist is not liable for negligence of the operating surgeon.
• Doctors are not responsible for the negligent act of competent nurses or other hospital personnel; unless such act are carried out under their direct supervision and control.
• When a doctor recommends another doctor to his patient after due care, he is not liable for the negligence of a new physician, but he becomes liable if he knowingly refers his patient to an incompetent surgeon.
• A hospital as an employer is responsible for negligence of its employees who are acting under its supervision and control.
• Hospitals can not be held responsible for the negligent acts of members of the superior medical staff in the treatment of patient, if it can be proved that the management exercised due care and skill in selecting properly qualified and experienced staff.
• Hospital management will be held responsible for the mistake of residents and interns in training, who are considered employees when performing their normal duties.
• A physician / surgeon is responsible for the acts of the interns and residents, carried out under his direct supervision and control.
• Insurers who have contracted to provide medical services may be liable for the negligence of their physicians.
• Both the employer and employee are sued by the patient, because the employee may lack the funds for paying the damages.
• Usually liability will be fixed upon those actually at fault, but the employer may be ordered by the court to pay compensation to the injured patient or plaintiff. In such cases, the employer can engage in “Third party proceeding” against the negligent doctor or employee for asking for repayment.

Medical Indemnity Insurance

It is a contract under which the insurance company agrees, in exchange for the payment of premium, to indemnity the insured doctors as a result of his claimed professional negligence.

The object of Medical Indemnity Insurance:

• To look after and protect the professional interest of the insured doctor.
• To arrange, conduct and pay for the defence of such doctor.
• To arrange all other professional assistance including prelitigation advice.
• To indemnify the insured doctor in respect of any loss or expenses directly arising from action claims and demands against him or grounds of professional negligence, misconduct etc.

Lawyers and consumer activist admit that there will be certainly be a large number of frivolous cases filed merely on the instigation of lawyers. It is a common knowledge among the legal fraternity that lawyers arguing fraudulent claims invariably try for an out of court settlement waving the threat of blackmail. Since established doctors and surgeons are quite sensitive about their reputation and practice, they would prefer to keep out of legal hassle and willingly pay the price for shutting up greedy complainants and lawyer. Since the insurance companies will also be heavily involved in these litigations, their lawyer will be keener on reducing the claims and getting out rather than defending the honour of their clients: The Doctors. We can appreciate what is happening in the motor accident claims tribunals⁷. The insurance companies are just interested in paying as low compensation as possible and the haggling is almost obscene. Same scenario can be seen in future in consumer courts too. In fact the lawyers too agree that the act itself leaves a lot of scope for abuse. The first and foremost lacuna is the absence of any screening procedure in the consumer courts. Every complaint is entertained irrespective of whether it has any substance or not. Section 13 of the act says that “the district forum shall, on the receipt of a complaint, refer a copy to the opposite party directing him to give his version of the case within a period of 30 days”. It’s a mechanical procedure; no judicial mind is applied to see whether the complaint is worth adjucating. The judges only come to know about the complaint at the stage of arguments, there also the doctor, the defendant, has to prove his innocence, bring all the records convince the judges who are not medical men and repeat the process again and again till the complainant exhaust all legal possibilities.

Since there are many grey areas in the present dispensation, a better alternative that should satisfy both doctors and patients is a medical ombudsman: (An official appointed to investigate people’s complaints against public organization) which alone can summon expertise to decide on the question of negligence.

Precautions to be taken by the Doctors in professional work

• One should not under take any procedure beyond his skill or knowledge
• Full and accurate medical records should be kept.
• Take proper consent at proper time in a proper way.
• Diagnosis should be confirmed by appropriate and necessary investigations whenever needed.
• Sensitivity test should be done before injecting drugs which are known or likely to produce anaphylactic shock.
• Immunisation should be done or advised whenever necessary particularly for tetanus in cases of injuries.
• Skiagrams should be advised in cases of bone or joint injuries.
• When diagnosis is obscure, consult the specialist without delay.
• The drugs should be identified and checked before use.
• Anaesthesia should be given by a qualified anaesthetist after necessary clinical and laboratory examination of the patient.
• Surgeon should obtain proper written consent to use his discretion for operation in obscure cases.
• Postoperative care and management should be properly supervised by the concerned surgeon.
• In case of criminal wounds operation should not be done unless very necessary.
• Proper instruments and appliances should be used.
• Proper medicines or proper prescription in legible handwriting should be given along with full direction to the patient.
• During labour the patient should not be left unattended.
• One should never attend a patient or perform an operation under the influence of alcohol or narcotics.
• One should exercise due care in selection of assistants and in the delegation of duty to them.
• Female patient should be examined in presence of a third person preferably a female.
• One should not issue false and misleading medical certificates or medico legal reports.
• One should never criticise or condemn the professional liability of another doctor.
• Doctors should keep themselves informed about recent advances and knowledge in their subjects.

Reference

1. Aggarwal K.K. Criminal Appellate jurisdiction, Medical Negligence and Supreme court Verdict. 1-2.
2. Belli M.M. 1964, Hospital and Medical Malpractice, Law Medicine, Science and Justice Ed. L. A. Bear. Illinois: Charles C Thomas. 171
3. B. Knight 1992, Legal aspects of Medical Practice, 5th Ed. London, Churchill Livingstone.
4. CPA Published by R.P. Kataria – 1994.
5. Deogoankar R. W. 1999. Legal aspects of Medical Negligence Pune. CTJ Publications.
6. Free Press Journal, 13th October 1964. 3.
7. Menon N.R.M. “Medical Negligence Liability: Emerging trends in Indian Law and Practice. Law and Medicine. 1997; 3: 1-16.
8. Phatnani P. “Medical Negligence. In: Lele R.D. The Medical Profession and the Law. 2nd Ed. 1993. Sajjan Sons Bombay 43-59.
9. Sapre D.P. Karmarkar D. P. ” CPA with Amendments in reference to Medical Negligence” J.M.L.A.M. Vol.14 No. 1-2, Dec 2002 1-4.
10. Subrahmanyam B.V. “Law in relation to Medical Men” Modis Medical Jurisprudence and Toxicology. 22nd Ed. 1999, Butter worth India, New Delhi. 683-735.
11. Supreme Court judgement on CPA and Medical profession 1995, 6 Supreme Court cases 651.

Corresponding address:
Dr. Nishat Ahmed Sheikh
Asst. Professor of Forensic Medicine, Kamineni Institute of Medical Sciences
Narketpally District Nalgonda, State Andhra Pradesh 508254, India.
Mobile : 09390058109
E-mail: dr_nishatsheikh (at) rediffmail.com