Medical Negligence And Our Laws An Overview

Transcription

1 Medical Negligence And Our Laws An Overview Vandana Singh* At one time it was thought that the state was mainly concerned with the maintenance of law and order and the protection of life, liberty and property of the subject. Such a restrictive role of the state is no longer a valid concept. Today we are living in an era of a welfare state and in this welfare state health is considered to be man's most valuable possession since all his activities are influenced by the state of his health. The Directive Principles of State Policy under the constitution of India require the state to make effective provision for public health, and for just and humane conditions of work 1. It is the primary duty of the State to raise the level of nutrition, the standard of living of its people and the improvement of public health 2. Articles 42 & 47 indicates that government had become conscious of this modern phenomenon and these provision could serve the function of providing a constitutional footing for further legislative and administrative action. However, it is submitted that the constitutional scheme for the protection of health, as originally envisaged, contained a serious lacuna, which was later removed by judicial innovation. It may be appreciated that Articles 42 and 47, which imposes constitutional obligation on the State is, nonjusticiable in nature. It means if state fail to discharge its obligation such failure cannot be questioned in court of law and there is no judicial remedy. But this anomaly has been removed by judicial creativity and innovation. The Supreme Court of India's creativity expanded the contours of Article 21 3, so as to sub serve the right of health and Medicare in it. Though, fundamental rights are negative rights and can be invoked only when it has been violated without the due process of law in healthcare the damages are irreparable and cannot be brought back. So the court took the positive step and interpreted this negative as positive right under Article 21 of the Constitution of India. * LL.B,LL.M, Faculty of Law, Delhi University (CORE ) 1 Articles 41 and 42 of the Constitution of India 2 Article 47 of the Constitution of India 3 Right to Life and Personal Liberty.

2 In Paramanand Katara v. Union of India 4, Supreme Court has declared that right to medical aid is an integral part of right to life. It is an obligation on the State to preserve life by extending required medical assistance. In fact, the Apex count has held that right to health and medicare care is a fundamental right under the Constitution of India. Further, Supreme Court in Paxchim Banga Khet Mazdoor Samiti v. State of WB 5 has held that providing adequate medical facilities for the people is an essential part of the obligation undertaken by the government in a welfare state. Article 21 imposes an obligation on the State to safeguard the right to life of every person and reach of which can move the Supreme Court on High Court through writ petition 6. Practice of medicine is capable of rendering great service to the society provided due care, sincerity, efficiency and skill are observed by doctors. Medical profession has its own ethical parameters and code of conduct. This profession is rendering a noble service to humanity and has sustained itself on public trust 7. According to voluntary Health Association of India, the present state of medical profession seems to mirror the rot, which seems to have sent into our system 8. Increased mechanization and commercialization of profession has brought in an element of dehumanization in medical practice 9. Health care has now been reduced to a business, which determines the patient-doctor relationship. It is in this context that the question of consumer protection has become significant in the medical profession. Apart from the question of development of the science of medicine, there are other factors which are of great concern. First is the standard and parameters for seeking admission to medical course has changed with the change in society now the medical profession has degenerated from its earlier service and humble motive. Now we see quite frequently the medical practitioners being involved in activities like 4 AIR 1989 SC 2039, also in state of Punjab, Mahinder Singh Chawla, AIR 1997 SC JT, 1996 (8) SC 43 6 Articles 32 and Article 226 of the Constitution of India. 7 Hippocratics Oath 8 Voluntary Health Association of India (1992), Health for the millions, Speciliaty issue on COnsumer Action, Vol. 18, no. 6 (December), p.1 (editorial). 9 Phatnani, Pitam, P. (1995) "Medical legal Aspects of Doctor Patient Relationship", Express Pharma / pulse, November, 30, p.5.

3 organ sale racket, which was never thought of before. Second is the hesitation of qualified doctors to take up rural assignment. These assignments has become more of experience gaining phenomenon and last resort then the real motive for joining the professional. Third is the large scale mushrooming of hospitals and nursing homes. The big corporate hospitals having branches all over the country have given rise to strange situation but in reality created a paradox. This phenomena has cascading effect and started to create commercialization of health services. On the other hand the patient developing an attitude of "shopping" with his disease. Consequently, the fourth thing that has emerged and appears to be the most serious one, that is, the accountability of remedial action of the professionals in this noble vocation. Today, the Patient-doctor relationship has almost diminished its fiduciary. character. 'Services' of medical establishments are more of purchasable commodities and the 'business' altitude has given an impetus to more and more malpractices and instances of neglect. But the question is, whether, on the whole, branding the entire medical community as a delinquent community would serve any purpose or will it cause damage to the patients. The answer is, no doubt, the later. It is not that measures to check such dereliction are absent. Victims of medical negligence, considering action against an erring doctor, have three options. a. Compensatory mode - Seek financial compensation before the Consumer Disputes Redressal Forum or before Civil Courts, b. Punitive/Deterrent mode - Lodge a criminal complaint against the doctor, c. Corrective/ Deterrent mode - Complaint to the State Medical Council demanding that the doctor's license be revoked. Jurisdiction of Civil Court was never disputed but its scope was limited for damages only. Doctors were initially excluded form the ambit of the Consumer Protection Act, when these courts were first set up in The Supreme Court's judgement in the Indian Medical Association, v. V.P. Shanta and ors. 10 has brought them within its purview. There are three tiers of disputes redressal forum. At the lowest level are the District Consumer Disputes Redressal Forum (one in 10 AIR 1996 SC 550

4 each district), which entertain compensation claims up to Rs.20 Lakh 11. At the next level are the State Consumer Disputes Redressal Formus (one in each state), where compensation claims between Rs.20 Lakh and Rs.l Crore are made 12. At the National Forum, claim of over Rs. 1 crore are lodged 13. Those dissatisfied with the judgement of the lower forum can appeal to a higher forum. The final court of appeal is the Supreme Court 14. As far as criminal cases against doctors are concerned it is lodged mainly following the unnatural death of a patient under their care. The section employed is usually 304. of the Indian Penal Code for a rash or negligent act not amounting to culpable homicide and carries maximum imprisonment of two years, or a fine, or both. Following the recent Supreme Court judgement in Suresh Gupta v. Govt. of NCT of Delhi 15, however, criminal cases against doctors are likely to register a steep fall. The police will have to be first provide proof of "recklessness and deliberate wrongdoing" on the doctor's part. A complaint can also be lodged with Medical Council of India together with State Medical Councils seeking cancellation of the doctors license. It is the Medical Council which give doctors there license to practice, the license can be withdrawn if the doctor is found guilty of misdemeanors. On past experience it can be said that the chances of the medical council taking any such step, are slender except in certain cases recently 16, the Delhi High Court has upheld the suspension of the license of a city surgeon by the Medical Council of India. Dr. M.M. Bagati who was not a qualified pediatrician, had administered High dosage of drugs to an infant after quiz the child developed renal problem. On enquiry doctor was found negligent and Medical Council of India suspended his license for a year. Then the doctor moved High Court, upholding the Medical Council of India's decision, Justice Sanjay Kishan Kaul held that "A professional doctor is required to prescribe what is required to be done, including the investigation. Considering all facts, it is apparent that the doctor's conduct is in the category of infamous conduct with respect to medical 11 Sec-11 of the Consumer Protection Act 12 Sec-17 of the Consumer Protection Act 13 Sec. 21 of the Consumer Protection Act. 14 Sec. 23 of the Consumer Protection Act (6) SCALE High Court burns down doctor's pleas "Hindustan Times, New Delhi, August 17, 2004.

5 profession 17. However, not a single doctor anywhere in India has ever since independence had his license permanently revoked 18. Thus it can be said that inspite of remedy under different laws the patient of medical negligence are still suffering and they need additional protection especially the patient from the Government Hospitals. Consumer Laws can be a great help provided the consumers should be aware of their rights. 17 Ibid 18 "let off the Hook", The week, New Delhi, August 14, 2004.