Medical Malpractice & the Consumer Protection Act

Posted on June 28, 2012 in Specials

By Rabia Mehta:

Owing to advancements in science, technology, research, standard of living, and outreach efforts, medical services have greatly improved in the last few decades. Mortality and morbidity rates are lower than before. Indian doctors are known the world over for being highly trained. But medical malpractice is still one of the biggest problems facing the medical industry today.

When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable cost. You expect the doctor to be knowledgeable about the latest advances in his field of specialty, and educate you about your diagnosis and prognosis, and explore the best possible solution to your health issue. In short, you expect to be healed. But for millions of people, what they expect is far from what they receive.

A case in point is that of a tuberculosis patient from Ambernath who, in March 2011, complained of breathing difficulties and sought to be admitted into a government hospital. He was sent from one department to another and made to wait for two hours for tardy hospital technicians. He died before he could be seen by the doctor. Another patient died outside the doorstep of a hospital that he had been forcefully discharged from. A man who had been run over by a train lost his arm because ambulance and hospital staff did not preserve the severed limb on ice and was made to wait before he could be seen by a doctor. Sadly, such cases happen every day in all parts of India. It is usually the middle and lower classes that are victims of negligence by the very health care providers that they rely on for help.

Medical malpractice cases comprise mainly of negligence. The law of Torts defines negligence as a breach of duty that results in damage to a claimant. In the medical profession, this can be due to a failure to do something a comparably skilled medical professional would usually do, or to do something that a comparably skilled medical professional would not do. Thus, it comprises of a (1) legal duty towards due care; (2) a breach of that duty, and (3) damage to a patient as a result of the breach. Another factor is the lack of informed consent from the patient for a particular treatment, which can also lead to a malpractice accusation. Industry analysts state that one cause of a rise in medical malpractice cases may be the commercialization of the health care industry and the rise of the corporate culture in management. Overcrowded hospitals, a decrease in ethical values amongst health care providers, rising overhead expenses, and lax hiring practices also lend to the problem.

The realm of medical malpractice was brought under the Consumer Protection Act, 1986, due to the landmark case of the Indian Medical Association vs. V. P. Shantha & others, 13 November 1995. The judgment in this case defined medical care as a “service” that was covered under the Act, and also clarified that a person seeking medical attention may be considered a consumer if certain criteria were met:

● The service provided was not free of charge or for a nominal registration fee;
● If free, the charges were waived because of the patient’s inability to pay;
● The service was at a private hospital that charges all patients; or
● Any service rendered which was paid for by an insurance firm.

This meant that certain categories of patients could now sue errant health care providers for compensation under the Consumer Protection Act, 1986, as a breach of contract. Only facilities and doctors that provided all services free of cost to all clients were not liable under the CPA. However, even patients that do not fall under the category of consumers under the Act can sue for negligence under the law of Torts. The burden to prove negligence, however, is on the patient. (Instances of negligence punishable under the law of Torts include improper surgical procedures resulting in damage to the patient, transfusing blood of the wrong blood group, administering the wrong medication resulting in harm, etc.)# A doctor may also be liable under Section 304A of the Indian Penal Code (IPC), 1860, if the negligence can be classified as a rash or reckless or gross negligence that results in the death of a patient, i.e., where the death wasn’t due to just a mistake or an error in judgment. Instances of this include performing illegal abortions in a facility not suitable for surgery, or performing procedures for which the doctor is not qualified or certified, which resulted in the death of the patient. Negligence is also punishable under Sections 336, 337 and 338 of the IPC, which apply to criminally endangering the life or personal safety of others or causing harm due to the same.

Not every instance of harm brought to a patient is considered negligent, however. Often, a patient seeks compensation for harm caused by accident, or because of the patient’s inadequate knowledge of medical procedures and risks, or refusal to follow instructions (assuming that they have been given a fair explanation of the risks and benefits associated with the treatment by the doctor). In such cases, doctors are protected from being blamed for negligence. Section 80 of the IPC, 1860, states that harm caused while acting within lawful or reasonable means (i.e., an accident or error in judgment that harms the patient) is not considered negligence. Section 88 further states that an act done in good faith in the interest of the patient and that which was not intended to cause harm but rather benefit the patient in some way, and who has given express or implied consent to take the risk of the negative consequences, is also not a negligent act. However, if a doctor is wrongfully accused, whether intentionally or unintentionally, it can lead to irreversible damage to his reputation and practice. Care should be taken to ensure that a claim indeed falls under one or more of the categories of civil or criminal culpability. The best way to curb medical malpractice is to prevent it, and this responsibility falls on both, the doctor and the patient.

Rabia Mehta was born in Bombay but raised in the US. She studied Industrial/Organizational Psychology but she plans on pursuing a second career in the near future. An avid reader, she currently dabbles with writing and editing, and devotes her spare time to her beloved pets. She calls the San Francisco Bay Area home but travels to Asia frequently. The article was previously published at Indian Law Radar.