Transcript LEGAL ASPECTS OF MEDICAL PRACTICE

CONSUMER PROTECTION ACT
&
MEDICAL NEGLIGENCE
Know thy law
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Tort
Contract
Consumer Protection Law
Civil Courts
Tribunal – Consumer Fora
CONSUMER PROTECTIN
ACT
• AN ADDITIONAL REMEDY
• A BENEFICIARY LEGISLATION
• A CONSUMER IS A PERSON WHO BUYS
GOODS OR AVAILS SERVICES FOR
CONSIDERATION
• PROVIDES SPEEDY AND INEXPENSIVE
REMEDY
• SERVICE RENDERED BY MEDICAL
PROFESSIONAL IS COVERED UNDER THE
ACT AND DEFICIENCY IN SERVICE IS
ACTIONABLE
Consumer Protection Act
Service Provider & Consumer
Legal Aspects
Service
• S.2(1)(o) ‘Service’ means service of any
description
• Including the provision of facilities in connection
with banking, financing, insurance, transport,
processing, electrical or other energy, board or
lodging or both, housing construction,
entertainment, amusement, purveying of news
or other information, but
• Does not include rendering of service free of
charge or under a contract of personal service
Complaint
• S. 2 (c ) Any allegation in writing made by a
complainant in regard to following for obtaining
relief under the Act
• UTP / RTP
• Defect in Goods
• Deficiency in services
• Excess Price
• Hazardous goods being offered for sale
• Nominal fee is prescribed
RELIEF THAT MY BE AWARD BY
CONSUMER FORUM
• AWARD COMPENSATION FOR LOSS OR
INJURY SUFFERED DUE TO NEGLIGENCE;
AND/OR ORDER OPPONENT TO
• REMOVE DEFICIENCY IN SERVICE
• DISCONTINUE THE UNFAIR TRADE
PRACTICE
• PAY SUM TOWARDS LOSS OR INJURY
SUFFERED BY LARGE NUMBER OF PEOPLE
• PROVIDE FOR ADEQUATE COST TO PARTIES
MEDICAL NEGLIGENCE
Requirements – what to take care of
• Medical Negligence is a shortcoming in the
service agreed to be rendered by Medical
Professional : deficiency in service
• Medical Negligence is also a ‘tort’ which calls for
a reasonable degree of care expected of a
professional like doctor or pathologist;
• Valid Consent – Informed Consent
• Record keeping – Limitation ? S.29 r.w R.9 format (D,E,F & H and consent), period, medico
legal cases, printed and duly authenticated copy
INDIAN MEDICAL COUNCIL
• Indian Medical Council formed under the IMA
Act,1956 has the responsibility of Registration,
Removal of name from Medical Register and
Maintenance of Register
• Recognition and non recognition of Medical
qualifications and also withdrawal of recognition
• Minimum standards of Medical Education
• A physician to uphold dignity of profession
medical ethics and follow IMC regulations
• A physician has duty towards profession, fellow
professionals and most importantly to patients
UNETHICAL ACTS, MISCONDUCT AND
PUNIHSMENT
• Unethical acts include advertising, printing of self
photograph, running a medical shop generally,
rebate/commission, practice of euthanasia etc.
• Misconduct includes violation of regulations,
• Adultery and improper conduct
• Conviction by Court of law
• Sex determination
• Giving false Medical Certificate
• Disciplinary action may be taken by IMC:
Punishment includes suspension and removal
from register for infamous acts
Duty to furnish Case Papers
• The Bombay High court in Raghunath
Raheja v/s. Maharashtra Medical Council
& Ors. Reported in AIR 1996 Bombay 198
held that when a patient or his near
relatives demand the copies of the case
papers it is necessary for the hospital
authorities and doctors concerned to
furnish copies of such case papers
Where patient has not followed
doctor’s advice
1. In Md. Aslam v/s Ideal Nursing Home
and Ors., 1986-99 Consumer 4233 (NS)
National Commission held as follows:
‘Death of a patient due to infection after
operation and Medical Negligence was
alleged. No negligence on the part of the
Nursing Home or the Doctors attending
the patient-patient did not follow the
advice given to her-appeal dismissed’
Medical Record
1.
In Akhil Bharatiya Grahak Panchayat & Anr.
v/s Dr. Jog Hospital, III (1993) CPJ 1447 State
Commission Maharashtra held as follows: ‘the
Complainant failed to establish that the
Opposite Party was negligent in performance
of the operation on 21.11.91. In our view in the
absence of necessary material on record, we
cannot accept the allegations of the
Complainant that the Opposite Party was
negligent in his service.’
Unexpected death and unable to come
to conclusion-Medical Negligence?
In Smt. Archana & 4 Ors. v/s Chaudhari Chest
Hospital & Ors., 1998(1) CPR 556, State
Commission Maharashtra held as follows:
‘Medical Negligence-Deceased husband of
Complainant was operated for hip bone
fracture and he passed away in same evening.
Complainant alleged no proper post operative
care and patient had excessive bleeding.
Negligence attributed to massive outflow of
blood to the extent of 2500 ml.
……………….. unable to come to
conclusion-Medical Negligence?
Medical evidence and Panchanama did not support
that conclusion..... Pathological report showed that
deceased had no diabetes, mellitus, ischaemic heart
disease and therefore no blood clotting test was
required under such circumstances. As per medical
literature in case of hip fracture risk of embolism could
develop at the time of fracture and not at surgery.
Unexpected death could occur on account of
pulmonary embolism. In post mortem report, doctors
were unable to arrive at definite opinion regarding
cause of death. Possibility of pulmonary embolism
being cause of cardiac shock leading to death could
not be ruled out which does not make any case of
negligence on the part of doctor.’
Dr. Ganesh Prasad & Anr. V. Lal
Janamajay Nath Shahdeo, I(2006)
CPJ 117 (NC),
• In this case a 4 ½ years old child suffering
from cerebral malaria was admitted in
hospital. Life saving injection was given.
As opined by child specialist, doses were
safe and treatment was proper. Though
death of the child is unfortunate, it can not
be said that there was negligence on the
part of the doctor.
Dr. Ganesh Prasad & Anr. V. Lal
Janamajay Nath Shahdeo ..contd
• National Commission reiterated the
principle that where proper treatment is
given, death occurred due to process of
disease and its complication. It can not be
held that doctors and hospitals are
negligent and orders of lower fora
upholding the claim and awarding a
compensation of Rs. 5 lakhs were set
aside.
Narasimha Reddy & Ors. v. Rohini
Hospital & Anr. I(2006)
CPJ144(NC)
• National Commission held that where a
patient could not be operated due to
critical condition, doctor can not be held
guilty of negligence if proper course of
practice is adopted and reasonable care is
taken in administration of treatment.
Consequently the Revision petition filed by
Complainant was dismissed
Degree of Care expected of a
doctor
• Bolam v. Friern Barnet Hospital Management
Committee (1957) 1 WLR 582 lays down the test to
determine the liability of a doctor. The test is the
standard of the ordinary skilled man exercising and
professing to have that special skill. It is expected of a
professional man that he should show a fair, reasonable
competent degree of skill. Neither he is expected of a
higher degree of skill of a person who has higher
education and greater advantages nor is he expected to
guarantee cure. Medical men would not be found
negligent simply because one of the risks inherent
occurs or because in a matter of opinion he legitimately
took a view which unfortunately happened to produce an
adverse result in particular circumstances as held in
White House v. Jordan (1981) 1 WLR 246
in Lakshman Joshi v/s Dr.Trimbak
AIR 1969 SC 128,
Supreme Court inter alia held as follows:
The duties, which a Doctor owes to his patient,
are clear. A person who holds himself out
ready to give medical advice and treatment
impliedly undertakes that he is possessed of skill
or knowledge for the purpose. Such a person,
when consulted by a patient, owes him certain
duties, namely a duty of care in deciding
whether to undertake the case, a duty of care
in deciding what treatment to give or a duty
of care in administration of that treatment.
Lakshman Joshi v/s
Dr.Trimbak
…….. continued
A breach of any of these duties gives a
right of action for negligence to the
patient. The petitioner must bring to his
task a reasonable degree of skill and
knowledge and must exercise
reasonable degree of care.
INDIAN MEDICAL ASSOCIATION V/S V P
SHANTA & ORS
• Held: “The definition of ‘service’ in Section 2(1) (o) of the
Act can be split into three parts – the main part, the
inclusionary part and the exclusionary part. The main
part is explanatory in nature and defines service to mean
service of any description which is made available to the
potential users. The inclusionary part expressly includes
the provision of facilities in connection with banking,
financing, insurance, transport processing, supply of
electrical or other energy, board or lodging or both,
housing construction, entertainment, amusement or the
purveying of news or other information. The exclusionary
part excludes rendering of a service free of charge or
under a contract of personal service.”
INDIAN MEDICAL ASSOCIATION V/S V P
SHANTA & ORS .. continued
• Further held: “Medical Practitioners, though
belonging to the medical profession are not
immune from a claim for damages on the ground
of negligence. The fact that they are governed
by the Indian Medical Council Act and are
subject to the disciplinary control of the Medical
Council of India and/or State Medical Council is
no solace to the person who has suffered due to
their negligence and the right of such person to
seek redress is not affected.
INDIAN MEDICAL ASSOCIATION V/S V P
SHANTA & ORS .. continued
• Free Service:
• The order further says that the Medical
Practitioners, Govt. hospitals/ nursing homes
and private hospitals/nursing homes broadly fall
in three categories:
a) Where services are rendered free of charge to
everybody availing the said services;
b)Where charges are required to be paid by everybody
availing the services; and
c) Where charges are required to be paid by persons
availing the services but certain categories of person
who cannot afford to pay are rendered service free of
charge.
Negligence per se
Absence of a basic qualification for a
homeopathic doctor to practice a system
of medicine (allopathy) in Poonam Verma
V/s Ashwin Patel & Ors., (1996) CPS,
(SC). Supreme Court held that a person
who does not have knowledge of a
particular system of medicine but practices
in that system is a quack. Where a person
is guilty of negligence per se, no further
proof is needed.
Roe and Woolley v. The Ministry of Health
and An Anaesthetist, (1954) 2 All ER 131
Lord Denning: “Every Surgical operation
is attended by risks. We can not take the
benefits without taking the risks. Every
advance in technique is also attended by
risks. Doctors like the rest of us, have to
learn by experience; and experience often
teaches in a hard way”
Res-ipsa Loquitur
In Nihal Kaur v/s Director, P.G.I.M.S.R. III (1996) CPJ
112 where a patient died a day after surgery and the
relatives found a pair of scissors utilized by the surgeon
while collecting the last remains, a compensation of Rs.
1.20 lakhs was awarded by the State Commission,
Chandigarh on the grounds that negligence was writ
large on record in handling the case though it was
argued that arterial forceps and sponges were left
behind in an attempt to save the life of the patient and
(the said things were to be later removed, but could not
be done as the patient died) the same did not contribute
to patient’s death.
SPRING MEDOWS HOSPITAL & ANR. ETC
V/s
HARJOL AHLUWALIA
In a landmark case, on 5.5.1998, the
Supreme Court of India confirmed the
order of the National Commission, which
awarded a compensation of Rs. 12.5 lacs
(out of the said amount Rs. 12,37,500/- is
to be paid by the Insurance Company) as
compensation to a minor and Rs. 5 lacs as
compensation to the parents. The case,
which attracted a great deal of public
attention was:
Sethuraman Subramaniam Iyer V/s
Triveni Nursing Home and Anr
National Commission in considered the
question of Medical Negligence
considering the fact that there was no
EXPERT EVIDENCE on behalf of the
complainant. This is a very important case
particularly for the medical fraternity
because the value of expert evidence was
recognized in this case.
Prashanth S. Dhananka v. Nizam
Institute of Medical Science & Ors
Hon’ble National Commission deliberated
on important issues such as what
constitutes medical negligence, duty of a
hospital to engage a specialist when a
specialist is available, vicarious liability of
a hospital for omissions and commissions
of doctors and staff, compensation for
mental and physical torture etc.,
Bhimrao Kashinath Dhaware V/s Dr. Viraj Lokur
“Hydronephrosis is a chronic disease with
excess accumulation of water in the
kidney. It is usually caused by the
blockage of the ureter leading from the
kidney. In early stages it may be possible
to unblock the ureter, but in later stages
removal of the kidney itself may be
necessary”.
Bhimrao Kashinath Dhaware .. continued
As the Complainant did not succeed by pressurizing the
Opponent doctor, he lodged a CRIMINAL COMPLAINT
OF THEFT on the Opponent doctor at Miraj Police
Station. Opponent doctor was called to the police
station for interrogation when all relevant papers were
produced in police station. The police department then
admitted the complainant to Civil Hospital, Sangli, had a
panel of doctors investigate him, and a report was
submitted to the Superintendent of the Police of Sangli.
Complainant did not stop his coercive tactics even at
this stage but persisted with harassment of the doctor
Dr. Tokugha Yepthomi V/s Apollo Hospital
Enterprises Ltd. & Anr
Code of Medical ethics and ‘right to life’, a
fundamental right
The Appellant after obtaining MBBS degree from
Jawaharlal Institute of Post Graduate Medical
Education and Research, Chandigarh, completed his
internship and junior residency at the same college.
Later he joined the Nagaland State Health services as
Assistant Surgeon Grade -1. One Itokhu Yepthomi who
was ailing from a disease that was provisionally
diagnosed as Aortic Aneurysm was advised to go to
the Apollo Hospital at Madras and the Appellant was
directed by the Government of Nagaland to
accompany the said patient to Madras for treatment.
Dr. Tokugha Yepthomi .. continued
The appellant and one Yehozhe who was the
driver of Itokhu Yepthomi were asked to donate
blood for the latter. Their blood samples were
taken and the results showed that appellant’s
blood group was HIV(+ve). In August, 1995 the
Appellant proposed marriage to one Ms. Akali
which was accepted and the marriage was
proposed to be held on December 12th, 1995.
But the marriage was called off on the ground of
blood test conducted at the Respondent’s
Hospital in which the Appellant was found to be
HIV(+ve).
Dr. Tokugha Yepthomi .. continued
Since the marriage had been settled but
was subsequently called off, several
people including members of the
Appellant’s family and persons belonging
to his community became aware of
Appellants HIV (+) status. This resulted in
severe criticism of the Appellant and he
was ostracized by the community.
Dr. Suresh Gupta v. Govt. of
NCT of Delhi & Anr.,
(2004)6SCC422
When Medical Negligence may lead to
criminal prosecution and arrest?
Supreme Court of India declared while
reviewing an order made by another bench of
the apex court in Dr Suresh Gupta's Criminal
Petition that extreme care and caution should be
exercised while initiating criminal proceedings
against medical practioners for alleged medical
negligence.
Smt. Savita Garg v/s Director, National
Heart Institute, IV(2004)CPJ40(SC)
Supreme Court did not favour dismissal of
consumer cases filed against a hospitals on
technical grounds.
Dr. J.J.Merchant and Ors. V. Shrinath
Chaturvedi, 2002(4) ALL MR 605 (S.C) the Apex
Court inter alia dealt with the procedure relating
to conduct of matters before the Consumer Fora,
delay in disposal of complaints and whether a
complicated matter has to be necessarily
dismissed by the Consumer Redressal Agency
with liberty to approach the civil court
Pravat Kumar Mukherjee v. Ruby General
Hospital and Ors, II(2005)CPJ35(NC),
National Commission called for qualitative
change in the attitude of the hospitals. National
Commission called upon the hospitals to provide
service to the human beings as human beings.
The Commission felt human touch is necessary.
The Commission observed: “that is their code of
conduct; that is their duty and that is what is
required to be implemented. In emergency or
critical cases let them discharge their duty/social
obligation of rendering service without waiting
for fee or for consent Commission”
Mrs. Shantaben Muljibhai Patel & Ors. v.
Breach Candy Hospital and Research
Centre & Ors. I(2005) CPJ 10 (NC)
National Commission held that doctors are
required to take risk while performing their
job and merely because a patient dies to
certain accidental eventualities does not
establish deficiency in service or
negligence on the part of a doctor or a
hospital.
The relationship between Doctor/Hospital and
Patients is a relationship of trust; doctors are still
known as healers!
There is no real alternative!!
Let not commercialization destroy the edifice of
medical practice!!!