MEDICAL NEGLIGENCE IN CONSUMER PROTECTION LAW: A RIGHTFUL ACCUSATION?

INTRODUCTION

The recent case of the suicide of Dr. Archana Sharma has brought the term medical negligence into highlight once again. Although the case is tainted with peculiar aspects of criminal law and politics, a question that comes into play is, to what extent can doctors be accused of medical negligence? Medical negligence is the resultant act of an act or omission done by a medical professional that no equally skilled and proficient medical professional of ordinary prudence possessing the requisite care would have committed. Although medical negligence comes within the ambit of different legislations in the country, several litigations concerning medical negligence are filed under the Consumer Protection Act, 2019. 

BACKGROUND

The very significant judgment in the case of Indian Medical Association v. VP Santha (also designated as a landmark judgment) got medical negligence into the folds of the Consumer Protection Act, 1986. The issues underlying this instant case were whether a doctor or a medical practitioner can be considered to be providing a service and whether such a service can be included in the definition of “service” under section 2 of the aforementioned act. The Apex Court opined that any diagnosis, treatment, or consultation handed down by a doctor to the patient would fall underneath the “service” definition of the Consumer Protection Act. It was also pointed out that any service which is meted out without any cost to every patient or performed under a “contract of personal service” will not be covered under the same. Since medical negligence has been brought under the realm of the Consumer Protection Act, it has brought about the commercialization of the medical business. This has directly resulted in a deterioration of the doctor-patient relationship as everything is looked upon from a capitalist perspective. 

PATIENT RIGHTS AND RESPONSIBILITIES

The National Human Rights Commission of India adopted a charter that lists several rights that patients have along with the laws that protect those rights. What is exemplary is the fact that the varied types of rights that different legislations encompass in India are covered in this charter in a coherent modus that gives the patient more authority to be ascertained his/her legal position. The “right to safety and quality care according to standards” finds a notable mention in this charter. The Consumer Protection Act, of 1986 substantiates this right in the sense that patients as consumers have a “right to seek redressal in case of perceived medical negligence or damage caused due to deliberate deficiency in service delivery.” Certainly and with no suspicion a patient is empowered in this respect however, the problem arises by the word ‘perceived.’ It is a well-known fact that the claimant has the onus to prove that medical negligence has taken place but most of the time, this leads to the misuse of the provision. As has been said by the Apex Court in Martin F. D’Souza v. Mohd Ishfaq simply for a reason that a patient did not react to treatment positively, the doctor cannot be accused of medical negligence. It is perceived by the patient’s family that any damage caused to the condition of the patient is ultimately the doctor’s fault. Thus, to seek redressal for their grievances, frivolous petitions are filed. According to the statistics, of the 112 cases of negligence that were filed in the year 2019, only 16 patients were the real victims of medical negligence. Patients and their families should realize that it is their responsibility to “respect the dignity of the doctor and other hospital staff as human beings and professionals.” They should not take violent routes in case of a mishap. The step of bringing healthcare services under the ambit of the Consumer Protection Act has increased the chances of violence against doctors as they are threatened and blamed for real and apparent negligence. This is another factor that has led to the deterioration of the doctor-patient relationship, resulting in an increased level of distrust.

HOW CAN MEDICAL NEGLIGENCE BE DETERMINED?

The test to determine whether medical negligence took place or not has been meticulously explained in BOLAM’s rule and substantiated by the Supreme Court. It states that if the act in question can be validated by a conscientious group of medical professionals who are specialized in the same field as the doctor who is being accused, then that act will not be signified as negligent. In simple terms, it can be explained that a medical professional has the autonomy to make a choice or selection between different available procedures that are duly acknowledged by the field of medical science. The fact that he chose to proceed with a particular kind of treatment over other treatments cannot supposedly be a ground to establish medical negligence on his part. A case of medical negligence that resulted in the victim getting compensated is Dr. Ravishankar v. Jery K. Thomas and Anr, . In this case, The State Commission determined that the doctor who was the appellant was responsible for leaving ribbon gauze in the patient’s right nose after septoplasty had been conducted. As a result of the serious difficulties, the patient had to go through a lengthy therapy process. After a thorough examination of the facts and circumstances, the National Commission concluded that considering the obvious facts and evidence, it indicates that doctor had been negligent, as the complications would not have occurred if the doctor had taken due care. It is the duty of the doctor to decide whether to undertake a case, decide which treatment will be the most suitable, and to effectively administer that treatment when consulted by a patient. A failure in productively exercising the requisite skill with due care would render the doctor negligent. 

CONCLUSION

Doctors as medical professionals possess the necessary skills to treat the ailments of people suffering physically or mentally. Thus, they are highly revered and looked upon with hope. However, what has to be understood is that they are humans and susceptible to innocent errors. Redressal for medical negligence is most certainly a boon for society as it ensures better medical facilities and infrastructure for the patients. Before moving the court for a case of medical negligence the complainant should ensure that the damage could be directly and deduced by the act of the concerned doctor. False accusations of alleged medical negligence can seriously harm the reputation of a medical professional whose primary motive was the betterment of the patient. In this respect, a medical practitioner who has mastered his professional skills can choose to undertake a path different from what has been followed usually. This does not make him negligent or diverted. It has to be ensured by the doctor that the task which is entrusted to him will be performed with utmost care and with reasonable competence. What eventually is the biggest factor in determination is the unique and specific details of a case.

Author(s) Name: Nikita Ambwani (University of Rajasthan)