1Dr.Mukesh Yadav, M.D., MBA (HCA), LL.B., PGDHR, 2Dr.Pooja
Rastogi, MD
Abstract
Indian Medical Association vs. V.P.
Shantha and Ors., (1995) is a three-Judge Bench decision. The principal issue
which arose for decision by the Court was whether a medical practitioner
renders 'service' and can be
proceeded against for 'deficiency in
service' before a forum under the COPRA, 86.
There
is an urgent need to check increasing trend in number of medical negligence
cases and deteriorating quality of healthcare in India. Study of decided cases
of medical negligence can provide an insight into the reasons for medical
negligence cases, factors mainly responsible for medical negligence and impact
of doctor-patient relationship, etc.
This study is attempted to explore the
insight into ground realities & problems in the present healthcare system
with ways & means to prevent these in healthcare institutions and medical
fraternity. High cost of healthcare coupled with practice of defensive medicine
will further aggravate the situation. Out of 48 cases studied 43 (89.58%)
belongs to private hospitals and only 05 (10.42%) belongs to Government
Hospitals. Surgical & Allied specialties and investigational specialties
are more at risk of alleged medical negligence and subsequent probability of
proof of medical negligence.
Outcome of this study will definitely
beneficial for all, for healthcare provider it will help in improving the
quality of healthcare and doctor-patient relationship, restoration of lost
trust in medical profession.
Key Words: Medical
Negligence, Damage, Damages, Duty, Dereliction of Duty, Compensation
Corresponding Author:
1Director/Principal/Dean
Siddhant School of Medical Science
Mainpuri, U.P.
Mob. +91-8527063514
Email: drmukesh65@yahoo.co.in
2Professor & Head
Dept. of Forensic Medicine & Toxicology, SMSR, Sharda Univeristy, Greater Noida, U.P.
Introduction:
The “World
Consumer’s Right Day”
is celebrated globally on March 15th
and the “National Consumer’s Right Day”
on December 24th each
year in India to create awareness among consumer’s about their rights. Supreme Court verdict in 1995, brought the medical profession under
the purview of the Consumer protection Act, 1986 [1, 2, 3].
Doctors are always afraid of its
impact on them, many landmark judgments given by various consumer forums
against doctors and health institutions to award compensation in alleged
negligence cases, percussions of which can be felt every moment a doctor think
of providing its services to a new patient.
The
Consumer Protection Act, 1986 (COPRA, 86), is a benevolent social legislation
that lays down the rights of the consumers and provides there for promotion and
protection of the rights of the consumers.
Profession
differentiated from Occupation:
The Supreme Court dealt with how a
'profession' differs from an 'occupation' especially in the context of
performance of duties and hence the occurrence of negligence. The Court noticed
that medical professionals do not enjoy any immunity from being sued in
contract or tort (i.e. in civil jurisdiction) on the ground of negligence.
However, in the observation made in the context of determining professional
liability as distinguished from occupational liability, the Court has referred
to authorities, in particular, Jackson
& Powell [4] and have so
stated the principles, partly quoted from the authorities:
"In the matter of professional
liability professions differ from occupations for the reason that professions
operate in spheres where success cannot be achieved in every case and very
often success or failure depends upon factors beyond the professional man's
control. In devising a rational approach to professional liability which must
provide proper protection to the consumer while allowing for the factors
mentioned above, the approach of the Courts is to require that professional men
should possess a certain minimum degree of competence and that they should exercise
reasonable care in the discharge of their duties. In general, a professional man owes to his
client a duty in tort as well as in contract to exercise reasonable care in
giving advice or performing services.” [4]
Scenario
of Medical Negligence around the Globe and in India:
India is recording a whopping 5.2
million injuries each year due to medical errors and adverse events. Of these
biggest sources are mishaps from medications, hospital acquired infections and
blood clots that develops in legs from being immobilized in the hospital. A
landmark report by an Indian doctor from Harvard School of Public health (HSPH)
has concluded that more than 43 million people are injured worldwide each year
due to unsafe medical care. Approximately 3 million years of healthy life are
lost in India each year due to these injuries. [5]
Medical
Mishaps and Fatal Errors:
·
Health care errors is the 8th
leading cause of death in the world
·
Over 7 million people across the globe suffer
from preventable surgical injuries every year (WHO)
·
Globally, 234 million surgeries take place
every year, one in every 25 people undergo a surgery at any given time.
·
In developing countries, the death rate was
nearly 10% for a major surgery
·
Morality from general anaesthesia affected
one in 150 patients while infections were reported in 3% of surgeries with the
mortality rate being 0.5%
·
Nearly 50% of the adverse effects of surgery
were preventable
·
5.2 million medical injuries are recorded
each year in India
·
43 million people get injured each year due
to unsafe medical care worldwide
·
About two-thirds of medical injuries occur in
low and middle income countries like India
Sources of
Medical Mishaps: Wrong medications, Hospital acquired
infections, Blood clots
|
Table
No.1
Reported
Deaths due to Medical Negligence every years Globally
|
||
|
Sr. No.
|
Country
|
No. of
Deaths every year
|
|
1
|
United
States
|
98000
|
|
2
|
Canada
|
24000
|
|
3
|
Australia
|
18000
|
|
Source:
Compiled from article published in the Times of India [5, 6]
|
||
Legal
Scenario of Medical Negligence in India:
Have doctors become more negligent now?
The kinds of malpractice hitting the headlines are not new: in 1953, a boy with
a fractured limb died in Pune as a doctor operated on him without proper
anaesthesia [7].
Now the numbers are what first stand
out, and what also make the questions necessary. According to a 2013 study
(Global Burden of Unsafe Medical Care) by Dr.Ashish Jha of Harvard School of
Public Health, of the 421 million hospitalizations in the world annually, about
42.7 million adverse events of medical injury take place, two-thirds of which
are from low-income and middle-income countries. India records approximately
5.2 million cases a year, ranging from incorrect prescription, wrong dose,
wrong patient, wrong surgery, wrong time to wrong drug. [8]
With public awareness, claims and
litigation are rising. In the country's consumer courts, they now top the list
of 3.5 lakh pending cases. According to Dr Girish Tyagi, registrar of Delhi
Medical Council, the appellate authority for dealing with such cases, the
number of cases from overcharging, needless procedures, wrong doctors to wrong
decisions has zoomed in the last two years, from about 15 complaints a month to
40 now. [8]
A report by the Association of Medical
Consultants shows that there were 910 medico-legal cases against doctors
between 1998 and 2006 in Mumbai. Now they are going up by 150-200 cases every
year. [8]
But it's the gap in the law that seems
to leave both patients and doctors at a dead end. "For the longest time in
India, medical negligence was not seen as compensable," says Barrister,
Sushil Bajaj of The Integrated Law Consultancy, Delhi. [8]
Justice S. Ahmad observed that Medical
Negligence plays its game in strange ways. Sometimes it plays with life;
sometimes it gifts an "Unwanted Child" as in the instant case where
the respondent, a poor labourer woman, who already had many children and
had opted for sterilisation, developed
pregnancy and ultimately gave birth to a female child in spite of sterilisation
operation which, obviously, had failed. Smt.Santra, the victim of the medical
negligence, filed a suit for recovery of Rs.2 lakhs as damages for medical
negligence, which was decreed for a sum of Rs.54000/- with interest at the rate
of 12 per cent per annum from the date of institution of the suit till the
payment of the decretal amount. [9]
Duties of
Doctors:
In two decisions rendered by the
Supreme Court of India, namely, Dr.Laxman Balakrishna Joshi vs. Dr.Trimbak Bapu
Godbole & Anr., 1969 [7] and A.S. Mittal vs. State of U.P., 1989 [13], it
was laid down that when a Doctor is consulted by a patient, the former, namely,
the Doctor owes to his patient certain
duties which are (a) a duty of care in
deciding whether to undertake the
case; (b) a duty of care in deciding what treatment to give;
and (c) a duty of care in the administration of that treatment.
Role of
Indemnity Insurance and Cost of Treatment:
It's also pushing doctors toward heavy
professional indemnity policies. "It is usually around Rs.10 lakh,
with a premium of Rs.3000-Rs.5000 per annum,"
says Dr.Neeraj Nagpal, Convenor, Medicos Legal Action Group, Chandigarh. If a
doctor wants to cover himself against a claim of Rs.11.5
crore, the amount awarded to Saha, the premium will be between Rs.300000 and Rs.600000
annually. For that a doctor will have to attend to a large number of patients
every day and raise his fees substantially. "With rising litigation,
everyone will have to pay through their nose."
Hon’ble Supreme Court of India in Jacob Mathew vs. State of Punjab
& Anr., 2005 [11] observed that with the awareness in the society and
the people in general gathering consciousness about their rights, actions for
damages in tort are on the increase.
Medical
Ethics and Medical Negligence:
In M/s Spring Meadows Hospital &
Anr. vs. Harjol Ahluwalia through K.S.
Ahluwalia & Anr.JT, (1998) [12], it was observed as under:
"In the case in hand we are
dealing with a problem which centres round the medical ethics and as such it
may be appropriate to notice the broad responsibilities of such organisations
who in the garb of doing service to the humanity have continued commercial
activities and have been mercilessly extracting money from helpless patients
and their family members and yet do not provide the necessary services. The
influence exerted by a Doctor is unique. The relationship between the doctor
and the patient is not always equally balanced. The attitude of a patient is
poised between trust in the learning of another and the general distress of one
who is in a state of uncertainty and
such ambivalence naturally leads to a sense of inferiority and it is,
therefore, the function of medical
ethics to ensure that the superiority of the doctor is not abused in any
manner. It is a great mistake to think that doctors and hospitals are easy
targets for the dissatisfied patient. It
is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the
medical treatment but also it is
still more difficult to establish the standard of care in medical negligence of which a complaint can be made.
All these factors together with the
sheer expense of bringing a legal action and the denial of legal aid to all but
the poorest operate to limit medical litigation in this country."
It was further observed as under:
"In recent days there has been
increasing pressure on hospital facilities, falling standard of professional
competence and in addition to all, the ever increasing complexity of
therapeutic and diagnostic methods and all this together are responsible for
the medical negligence. That apart there has been a growing awareness in
the public mind, to bring the negligence of such professional doctors to light Very
often in a claim for compensation arising out of medical negligence a plea is taken
that it is a case of bona fide mistake which under certain circumstances may be
excusable, but a mistake which would tantamount to negligence cannot be
pardoned. In the former case a court can accept that ordinary human fallibility
precludes the liability while in the latter the conduct of the defendant is
considered to have gone beyond the bounds of what is expected of the reasonable
skill of a competent doctor." [12]
Error in
Judgment and Medical Negligence:
In this judgment, reliance was placed
on the decision of the House of Lords in
Whitehouse vs. Jordan & Anr., (1981) [10]. Lord Fraser, while reversing the judgment of Lord Denning (sitting in the Court of Appeal), observed as under:
"The true position is that an
error of judgment may, or may not, be negligent; it depends on the nature of
the error. If it is one that would not have been made by a reasonably competent
professional man professing to have the standard and type of skill that the
defendant holds himself out as having, and acting with ordinary care, then it
is negligence. If, on the other hand, it
is an error that such a man, acting with ordinary care, might have made, then
it is not negligence."
Aims and
Objectives:
The following aims and objectives have been decided for
the present study:
1.
To study the pattern of medical negligence
cases in Delhi
2.
To study the reasons for medical negligence
in Delhi
3.
To know the profile of hospitals (Govt.
/Private)
Material
& Methods:
Delhi District Consumer Dispute
Redressal Commission’s 50 judgments of alleged medical negligence cases from
year 2009 to 2014 were collected for study. After thorough study of judgments,
15 cases in which medical negligence was proved were selected for further
analysis in present study. Judgments were accessed from website http://confonet.nic.in/ [by using Key Word “Medical
Negligence” in text phrase search box]
Assumptions
Following assumptions has been made
based on limitation of research methodology:
·
All case are uploaded on the NCDRC Website
·
All cases are searchable with Text Phrase
“Medical Negligence”
Various parameters /variables such as
medical subjects and consultant involved in medical negligence, hospital
liability, consent, medical records, unqualified staff, investigative tests,
operative skill and diagnosis, hospital facility, operative and postoperative
complications, referral, advice, current update, time to attend patient, other
deficiency in services etc. were studied, tabulated and discussed. Observations and Discussion
|
Table No.2
Type of
Hospitals /Institutions/Clinics (Govt./Private)
|
|||
|
Sr.
No.
|
Contents
|
No.
of Cases (n=50)
|
%
(n=48)
|
|
1
|
Private
Hospitals
|
43
|
89.58
|
|
2
|
Govt.
Hospitals
|
05
|
10.42
|
|
|
Total cases
|
48
|
100.00
|
|
3
|
Not
Admitted for Trial
|
02
|
|
|
|
Grand
Total
|
50
|
|
|
*Two
cases excluded
|
|||
Type of Hospitals:
As evident from the Table No.2 out of
48 cases studied 43 (89.58%) belongs to private hospitals and only 05 (10.42%)
belongs to Government Hospitals.
Reason for this low number of
Government Hospitals could be following:
·
Free services/services at low price provided
by Government Hospitals and whenever there is not expected outcome from
treatment/procedure/intervention it causes less hurt to them as there is at
least less financial damage.
·
No. of Government Hospitals are less as
compared to private hospitals (including individual clinics) in Delhi i.e. why
private hospitals are more prone to case of medical negligence.
·
Perception among consumers that Government
Hospitals are not covered under the Consumer Protection Act, 1986. There is
need to study on perception of consumers on this aspect.
·
Low level of awareness on consumer court law
·
It is presumed that patients coming to Govt.
Hospitals are mainly poor and illiterate and not having
knowledge/Awareness of COPRA, 1986. There is need to study the relationship
between socioeconomic status and literacy and level of education and awareness
among patients visiting government hospitals and low level of medical
negligence cases.
·
There is need to further study regarding
whether patient’s expectations from govt. hospitals are less as compared to
high cost healthcare in private hospitals and doctors or not.
Reasons
for Less number of cases in DCDRC in Delhi:
·
High cost of healthcare and claim for higher
compensation after Amendments in 2002 (in District Consumer Court up to
Rs.2000000/ and in SCDRC claim from Rs.2000000 to 1 Crore)
·
High per capita income in Delhi
|
Table
No.3
Distribution
of Medical Negligence cases (Negligence: Proved/Not Proved)
|
|||
|
Sr.
No.
|
Contents
|
No.
of Cases (n=48)
|
%
|
|
1
|
Negligence
not proved
|
33
|
68.75
|
|
2
|
Negligence
Proved/Partially
|
15
|
31.25
|
|
|
Total
cases
|
48
|
100.00
|
|
*Two
cases excluded as not admitted for hearing
|
|||
Outcome of
Consumer Court Cases in terms of proof of ‘Deficiency in Service’ and/or
adoption of ‘unfair trade practices’:
As reveled from the analysis of cases (Table
No.3) in terms of outcome of consumer court cases in terms of whether
negligence proved or not, out of 48 cases deficiency in service /unfair trade
practice proved only in 15 (31.25%) cases while in 33 (68.75%) cases
complainant were not able to prove the allegations of medical negligence
against doctors/hospitals.
Reasons for this could be lack of
awareness and knowledge among all stake holders (patients/lawyers) and complexity
of cases of medical negligence, lack of Second Opinion/Expert Opinion on the
issue of allegations of medical negligence or Second Opinion/Expert Opinion not
supported the allegation.
There is need to create awareness and
interaction among medical fraternity and patient and advocate dealing with
medical negligence cases. Forensic Medicine Expert can play a great role in
this field either practice as Expert for filing cases of Medical Negligence in
various Consumer Court Cases or can provide consultation to aggrieved patients
and aggrieved hospital / doctors.
Specialty-wise
Distribution of Medical Negligence cases
As evident from the Table No.4 that
Orthopaedics, Obstetrics & Gynaecology, General Surgery and General
Medicine specialty doctors faced with allegations of Medical Negligence
(Deficiency in Service) in 07 (14.29%) cases each, followed by specialty of
Ophthalmology 06 (12.24%) cases and Cardiology 05 (10.20%) cases and ENT
02(4.08%) cases respectively. Surprisingly doctors practicing dentistry faced
with allegation of medical negligence in 04 (8.16%) cases which is a
significant finding.
Surgery
& Allied Specialty are at more risk of allegations of Medical Negligence:
As evident from the Table No.5 that
out of 48 cases of medical negligence studied, Surgery and Allied Specialty
faced with allegation of medical negligence in 29 (59.18%) cases against only
12 (24.49%) cases belongs to Medicine and Allied Specialty. Surprisingly 04
(8.16%) cases each belongs to allegation of medical negligence against
Dentistry doctors and Doctors /Hospitals provided Diagnostic/ Investigation/
Physiotherapy services.
Reasons could be attribute to high
cost of treatment for surgical interventions as well as degree of damage
(physical disability, suffering) suffered by the complainant in availing
surgical services as against services availed from medicine and allied
specialty doctors/hospitals.
|
Table
No.4
Specialty-wise
Distribution of Medical Negligence cases
|
|||
|
Sr.
No.
|
Subject of
Specialization
|
No. of Cases (n=48)
|
%
|
|
1
|
Orthopaedics
|
07
|
14.58
|
|
2
|
Ophthalmology
(Paediatrics)
|
06
|
12.50
|
|
3
|
Obst
& Gynae
|
07
|
14.58
|
|
4
|
Dentistry
|
04
|
8.33
|
|
5
|
Surgery
|
07
|
14.58
|
|
6
|
Medicine
|
07
|
14.58
|
|
7
|
ENT
|
02
|
4.17
|
|
8
|
Cardiology
(Superspeciality)
|
04
|
8.33
|
|
09
|
Miscellaneous
(Physiotherapy)
|
01
|
2.08
|
|
10
|
Diagnostic/Investigation
(Radiology, Pathology, etc.)
|
03
|
6.25
|
|
|
Total
|
48
|
100.00
|
|
11
|
Cases
Excluded
|
02
|
|
Negligence
against Surgical & Allied Specialty easy to prove:
As evident from Table No.6 that it is
more easy to prove allegations of medical negligence against Surgery and Allied
Specialty as compared to Medicine and Allied Specialty. Chances of proof of
allegations of medical negligence against Diagnostic Specialty (Radiology,
Pathology, Biochemistry, etc.) are highest at 50.00% cases, followed by Surgery
& Allied Specialty with 34.48%, Dentistry with 25% and with least chances
of prove in Medicine & Allied Specialty with only 18.18% respectively.
Summary
& Conclusions:
Out of 48 cases studied 43 (89.58%)
belongs to private hospitals and only 05 (10.42%) belongs to Government
Hospitals.
Surgical & Allied specialties and
investigational specialties are more at risk of alleged medical negligence and
subsequent probability of proof of medical negligence.
Medical ethics and regulations, 2002
[14] awareness among medical faculty will go a long way in preventing future
medical negligence cases in India.
|
Table
No.5
Distribution
of Medical Negligence case (Medicine vs. Surgical Specialty)
|
|||
|
Sr.
No.
|
Specialty
Surgical/Medicinal
|
No.
|
%
|
|
1
|
*Medicine
& Allied
|
12
|
24.49
|
|
2
|
Surgery
& Allied
|
29
|
59.18
|
|
3
|
Dentistry
|
04
|
8.16
|
|
4
|
Miscellaneous
(Physiotherapy, Diagnostic)
|
03
|
8.16
|
|
|
Total cases
|
48
|
100.00
|
|
Table
No.6
Distribution
of Medical Negligence case (Medicine vs. Surgical Specialty)
|
|||||||
|
Sr.
No.
|
Specialty
Surgical/Medicinal
|
No.
|
%
|
Negligence
Not Proved
|
%
|
Negligence
Proved
|
%
|
|
1
|
*Medicine
& Allied
|
11
|
24.49
|
09
|
81.82
|
02
|
18.18
|
|
2
|
Surgery
& Allied
|
29
|
59.18
|
19
|
65.52
|
10
|
34.48
|
|
3
|
Dentistry
|
04
|
8.16
|
03
|
75.00
|
01
|
25.00
|
|
4
|
Miscellaneous
(Physiotherapy, Diagnostic)
|
04
|
8.16
|
02
|
50.00
|
02
|
50.00
|
|
|
Total cases
|
48
|
100.00
|
33
|
68.75
|
15
|
31.25
|
Recommendations:
·
There is need for similar studies and
frequent audit of medical negligence cases to find out the new and emerging
causes of medical negligence in future.
·
Doctors and hospital owners are advised to go
for Indemnity Insurance cover of adequate limit to prevent loss by
complementation to the stakeholders.
·
With increasing cost of healthcare claim for
medical negligence are bound to be raised in future. Govt. should increase
funding for healthcare and coverage by health insurance so that cost of
healthcare can be controlled to some extent.
·
Medical Ethics teaching and training on soft
skills, especially of communication skills will go a long way in not only
improving the quality of health care and satisfaction of patients but also in
preventing medical negligence cases.
·
Need for Classification of Medical Negligence
Cases
·
Need for further Research
Limitations:
·
No uniformity in allegations due to cultural
and educational variations
References:
1.
Indian
Medical Association vs. V.P. Shantha and Ors. (1995) 6 SCC 651.
2.
Supreme Court’s Landmark
Judgment: Docs can be Sued for Compensation; Hindustan Times, Nov.14, 1995.
3.
Planning Commission
Skeptical About Govt.’s ‘Consumer Right Day’ Initiative; Times of India; Dec.
29, 2000: 3.
4.
Jackson
& Powell on Professional Negligence, 3rd Edn., paras 1-04, 1-05, and 1-56)
5.
Kounteya
Sinha. ‘India records 5.2m med injuries a yr’. The Times of India, New Delhi
Edition, September 21, 2013: 15.]
6.
Kounteya
Sinha. Medical Negligence: Govt. to provide cover. The Times of India, New
Delhi Edition, September 16, 2009
7.
Dr. Laxman
Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) 1 SCR 206.
8.
Damayanti Datta. Doctors
in the dock: Will fuzzy laws and frivolous cases change the way medicine is
practiced in India? India Today, October 9, 2014, Available at: http://indiatoday.intoday.in/story/litigation-doctors-medicine-law-national-accreditation-board-for-hospitals/1/394983.html
9.
S.S. Ahmad, J., D.P.
Wadhwa, J. State of Haryana & Ors. vs. Smt. Santra, Date of Judgment: 24.04.2000, Available at: http://judis.nic.in/supremecourt/imgs1.aspx?filename=16386
10.
Whitehouse
vs. Jordon (1981) 1 All ER 267 (HL); (1981) 1 ALL ER 267.
11.
M/s Spring
Meadows Hospital & Anr. vs. Harjol
Ahluwalia through K.S. Ahluwalia & Anr. JT 1998(2) SC 620.
12.
R.C. Lahoti, CJI, G.P.
Mathur, J., P.K. Balasubramanyan, J. Jacob Mathew vs. State of Punjab &
Anr., Appeal (Crl.) 144-145 of 2004, Date of Judgment:
05.08.2005, http://judis.nic.in/supremecourt/imgs1.aspx?filename=27088
13.
A.S. Mittal
vs. State of U.P. AIR 1989 SC 1570,
14.
Indian
Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
issued by the Medical Council of India under Section 20A read with Section 3(m)
of the Indian Medical Council Act 1956.
