Medical profession is one of the most oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Aryans embodied the rule that, Vidyo narayano harihi (which means doctors are equivalent to Lord Vishnu). Since long the medical profession is highly respected, but today a decline in the standard of the medical profession can be attributed to increasing number of litigations against doctors for being negligent narrowing down to “medical negligence”. Hospital managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods. When incidents like these began to rise,

Keywords: Consumer protection act, medical negligence, reasonable care, medical malpraxis, medical council of india.

Negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the contract of human affairs would do which a prudent and reasonable man would not do. According to Charlesworth & Percy on Negligence(Tenth Edition, 2001) in current forensic speech, Negligence has three meaning. There are

I. A state of mind, in which it is opposed to intention
II. Careless conduct
III. The breach of duty to take care that is imposed by either common or statute law.

Medical negligence defined as – the failure to exercise rational caution and capability during diagnosis and treatment over a patient in accordance to the prevailing standards in force at that point of time. In case of Bolam Vs. Friern hospital management committee 1957, the test for establishing medical negligence was set. “The doctor is required to exercise the ordinary skill of a competent doctor in his field. He must exercise this skill in accordance with a reasonable body of medical opinion skilled in the area of medicine.” In Dr.Kunal Saha v. Dr. Sukumar Mukherjee and Ors., decided on 1st June, 2006, the National Consumer Commission summarised the medical negligence law as follows:

Real test for determining deficiency in service
I. Whether there was exercise of reasonable degree of care?

II. The degree of standard or reasonable care varies in each case depending upon expertise of medical man and the circumstances of each case. On this aspect, it would be worthwhile to refer to the enunciation from Halsbury’s Laws of England.

The degree of skill and care required by a medical practitioner is so stated in (pr.36, p.36, Vol.30, Halsbury’s Laws of England, 4th Edn.)

“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Failure to use due skill in diagnosis with the result that wrong treatment is given is negligence. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he 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, even though a body of adverse opinion also exists among medical men; nor is a practitioner necessarily negligent if he has acted in accordance with one responsible body of medical opinion in preference to another in relation to the diagnosis and treatment of a certain condition, provided that the practice of that body of medical opinion is reasonable.”

Medical profession has been brought under the Section 2(1) (o) of CPA, 1986. In a significant ruling in Vasantha P. Nair v Smt. V.P.Nair I (1991) cpj the national commission held a patient is a ‘consumer’ and a medical assistance was a ‘service’. A doctor is held liable for only his acts (other than cases of vicarious liability). Vicarious liability arise in case of government hospital though doctor responsible but hospital has to pay the compensation.

It is well known that a doctor owes a duty of care to his patient. A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. Supreme Court make it obligatory in Parmanand Kataria vs. Union of India case that “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life” .

Incidence of “medical negligence” can also decide by medical council of india. Medical council of india is a statutory body deal with high standards of medical education and recognition of medical qualifications in India. It registers doctors to practice in India and promote the health and safety of the public. In many cases national commission accept the credibility of council’s verdict in medical negligence . Medical council of india guided by the Medical Council Act 1956. But now days question raise relating to the working ability of medical council of india , PIL filed in the Supreme Court by “People for Better Treatment” (PBT) in 2000 (W.P. Civil No. 317/2000), it was unraveled that the failure of the council to perform his duty.

Extended ambit of medical negligence
The National Commission as well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals.

In Supreme court land mark decision Indian Medical AssociationVs V.P. Shantha and Others III (1995) C.P.J laid down certain guideline for medical negligence and define efficiency of consumer protection. It has held certain exception like

· Service rendered to patient in (free of cost or charity) by a medical professional would not fall under the definition of ‘service’ under consumer protection act1986.

· Service rendered by a doctor under contract of personal service was not covered in consumer protection act 1986.

Proof of negligence
The principle of Res-Ipsa-Loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. The Hon'ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969 Supreme Court page 128 has held the above view that “All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the Complainant, it means he has the task of convincing the court that his version of the facts is the correct one”. In Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr., 1998 CTJ7 National Commission held that expert opinion in medical negligence played an effective role.

Criminal negligence
Provision under the Indian Penal Code – Section 304A which covers acts of medical professionals. According to this whoever causes the death of the person due to negligence or a rash act, not amounting to culpable homicide, can be tried and suitably punished with imprisonment for 2 years or fine or both. Sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 all cover the acts of medical malpraxis.

A judgment in Jacob Mathew vs. State of Punjab in 2005 (6 SCC 1) has made profound impact in a backward direction for appropriate adjudication of medical negligence cases in India. Supreme Court of India defined ‘criminal negligence’ under this case and held that “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”.

A Bench of Mr. Arijit Pasayat and Mr. C.K. Thakkar observed that the words “gross negligence” or “reckless act” did not fall within the definition of Section 304-A IPC, defining death due to an act of negligence or the culpable homicide not amounting to murder.
Between Civil and Criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing with a higher degree of morally blameworthy conduct.

Conclusion
Doctors should be more careful to perform their duties. Gross Lack of competency or gross inattention, or wanton indifferences to the patient’s safety can only initiate a proceeding against a doctor . Consumer dispute onle deal with compensation part. But its procedural aspect is too lengthy. It should disposed cases in speedy way. A healthy medical environment can create a great society.

Reference:
1. Jacob Mathew v. State of Punjab and another - 2005 SCCL.COM 456. Criminal Appeal No. 144-145 of 2004 decided by the Supreme Court on August 5, 2005
2. The Four Elements of Medical Malpractice". Yale New Haven Medical Center: Issues in Risk Management. 1997References
3. The Consumer Protection Act, 1986.
4. Indian Medical Association v VP Shantha AIR 1996 SC 550: 1995 (6)SCC 651, para 51, pp 678-79.
5. Ratanlal and Dhirajlal, Laws of Torts, 24th edition, 2002, edited by Justice G.P.Singh, pp 441 – 442.

The  author can be reached at: maujhuri@legalserviceindia.com