Medical Negligence under the Consumer Protection Act, 2019

Introduction:

Medical Negligence and malpractice by the doctor are common in many places. Medical Negligence is not a current topic it has been a habitual existence for a long time.

It is an upskill act or omission by the health care provider with the patient. Medical Negligence shows dereliction of duty where victims suffer from any kind of injury from the treatment given by a medical practitioner, or any health care provider. It is a wrongdoing behavior of a medical practitioner to not provide enough care to their patient needs and harm them by providing false treatment. It is an infringement of duties of a consumer, in which a patient is a consumer to a doctor. 

Negligence is an offense in IPC, Consumer Protection Act, Indian Contract Act, and Tort.

This article gives information about negligence under the Consumer Protection Act, 2019, types of Medical Negligence, the necessity of consumer protection law, liability under medical negligence, when does liability arises, when there are no liability and some Supreme court cases.

What is Medical Negligence?

Medical Negligence shows dereliction of duty where victims suffer from any kind of injury from the treatment given by a medical practitioner, or any health care provider.

Examples of medical negligence are: 

• improper administration of medicine,
• performing the fallacious surgery,
• giving improper medical guidance.

Negligence

The term negligence means when a person does an act that causes injury to another or any other act on which he must take care or, as a result, it harms any injury to another person.

Negligence comprises an independent basis of tort liability. It means which creates a risk of causing damages, rather than the state of mind.

Definitions

• Negligence is the breach of a legal duty to take care, which results in damage, undesired by the defendant to the plaintiff. – Winfield
• Negligence thus ‘in case of negligence a party performs not an act to which he is obliged, he breaks positive duty. – Austin

Essential Elements of Medical Negligence

1. Defendant’s duty to take charge of their negligence or attend a patient with care. For example- A doctor should attend to their patient in an emergency in their surveillance.
2. A defendant must have committed a breach of duty.
3. A plaintiff must have suffered damages as a result of that breach.

A doctor or a medical practitioner must have taken care of the following duties of care when attending to a patient:

1. He has a duty of taking charge in deciding whether to assist a case
2. A duty of taking charge in deciding what treatment has to be given to the patient
3. A duty of taking care of the treatment’s administration.

Types of Medical Negligence

1. Incorrectly Diagnosed: Incorrect diagnosis occurs when a professional diagnosed a patient with the condition he is suffering from. A doctor gives treatment to their patients and causes harm to them. This may be because he thinks that a patient is suffering from a different illness or he does not notice their condition at all. In consequence, by providing medical misdiagnosis, they have prescribed a patient with the wrong treatment or none.
2. Malpractice in Surgical Negligence: Most of the time surgery has to be done with some inherent risk, but sometimes a mistake is made that should never happen that causes surgical negligence, which affects a patient with some serious injury on a top-level.
3. Anesthesia: Anaesthesia is the use of medicine to prevent pain during surgery. It is a common part of medical treatment. Medical negligence happens due to improper guidance given to the patient or when a doctor cannot observe how it affects a patient. As a result, wrong anesthesia given by the medical practitioner leads to brain damage.  
4. Prescription Negligence: Thousands of prescriptions/instructions are written and dispensed each day. This also may come with negligence. These mistakes have taken place because of the consumption of higher dosages or medication. Negligence arises with the wrong instructions given by a doctor or medication given to a patient, despite knowing they have any allergic problem.
5. Pregnancy and Birth Injuries: This also happens at the time of pregnancy or at the time of birth of a child. This may include any harm to the mother or a baby.

The Necessity of Consumer Protection Law

The Consumer Protection Act, 2019, aims to provide the timely and effective settlement of consumer disputes.

The silent features of the Consumer Protection Act, 2019 are as follows:

1. Publishing Misleading Evidence: The Central Consumer Protection Authority will have the power to restrict misleading activities that any advertisement company has published and impose a fine of up to 2 years. Any act that leads to misguide or infringe any right of a consumer is being prohibited by the government. 
2. Alternate Dispute Resolution: the new act empowers alternate dispute resolution faster. It enables speedier resolution of the dispute and reduces pressure on consumer courts.
3. Establishment of Central Consumer Protection Authority: The new act established a consumer protection authority that possesses wide powers to take suo-moto action, verify the prices of goods, cancel the license, and file class-action suits.
4. All e-Commerce Transactions: After changes in 2019, it widened the rights of consumers. Now, includes any person who buys any good, whether through online or offline transactions, teleshopping, electronic mode, and direct selling marketing.  

Constitutional Obligation of State to Protect Consumer’s Interest

In a welfare state, protecting consumers’ interests can never be underestimated. The word consumer is a compendious word that includes all people, irrespective of their sectional or group denominations.

The Preamble of the Indian Constitution declares its resolve to secure “social justice” to all its citizens. Article 38(1) of the constitution imposes a duty on the state to strive “to promote the welfare of the people” by securing and protecting a social order in which justice- social, economic, and political, shall inform all the institutions of the national life.

Article 19(1) (g) of the constitution guarantees to all citizens the right to “practice any profession, or to carry on any occupation, trade, or business”. Clause (b) of Article 19, however, empowers the State to impose by law “reasonable restrictions” on the exercise of this right.

Liability under Medical Negligence

We can divide liability under Medical Negligence into three parts that are:

1. Contractual Liability: It means when a patient approach a hospital for medical care.
2. Tortorius Liability: It has two main purposes:
   • It provides compensation to the injured party.
   • It Imposes a penalty on a person who is found guilty.
3. Criminal Liability: It involves a person who conducts ignorance a known or obvious risk or disregards the life and safety of others. Negligence should be higher in performance.

Section 14 (1) (d) of the Consumer Protection Act, says that the compensation is payable to the consumer for loss or injury suffered because of any negligence of the opposite party. Thus, a patient who is suffered from medical negligence can step into any of the following remedies:

• Suit a complaint to the State Medical Council
• Suit a complaint before a consumer court,
• Suit a complaint before a civil court,
• And file a criminal complaint pointing to gross negligence.

When does liability arise?

A doctor is liable for a liability that results from the breach of his duty. But if negligence arises erroneously from the patient, then the only liability will be of a patient only. Thus, once the existence of the duty arose, the burden of proof lies on the plaintiff to prove the cause of obligation

The liability of the doctor doesn’t arise when the patient has suffered any injury.

When there is no liability?

In all cases where a patient has suffered an injury, the doctor is not necessarily liable. This may be due either to the fact that he has a valid defense or to the fact that he has not violated his duty of care. 

Case Laws

• Martin F. D’Souza V. Mohd. Ishfaq[1]: explicitly addresses the concern of medical professionals regarding the adjudicatory process that is to be adopted by court and forum in cases of alleged medical negligence filed against doctors.
• Dr. Kunal Shaa Represented By Sri vs Dr. Sukumar Mukherjee And Ors.[2]: In this case, the court held the doctor liable for medical negligence and awarded by compensation amounting to rupees 6.08 crore. The case began when the wife was suffering from a drug allergy and doctors were negligent in prescribing not to provide medicine.
• V.Kishan Rao Vs Nikhil Super Specialty Hospital[3]: In this case, the husband got the compensation for Rs 2 lakh. The case came to the fore when a lady who already had malaria. The doctor had mistakenly given the wrong prescription instead given treatment for Malaria fever. An officer from the malaria department sued the hospital authorities for performing the treatment of his wife negligently.
• A.S. Mittal and another V. State of UP and Others[4]: In this case, a respondent had administered some allopathic drugs to a patient who was suffering from high fever. Subsequently, he was shifted to a nursing home where he died. The court held that respondent liable as they registered him for providing homeopathic treatment, but not under the Allopathy system, and his action amounted to medical negligence.

Conclusion

According to the Consumer Protection Act, goods purchased and used for profit or profit are not within the scope of COPRA. This particular provision should be amended as it protects all medical equipment used in hospitals from the legal investigation. The use of incorrect equipment and medical instruments in medical practice can be harmful to consumers and cause injury, which leads to complaints about doctors. Notwithstanding this provision, manufacturers of such unusable equipment will be dismissed without penalty. Another problem is that services provided free of charge are not covered by COPRA. This immediately excludes the possibility of seeking help for victims who have used such free medical services.

The relationship between the physician and the patient is contractual and the physician must fulfill his/her treatment obligations. According to statistics, 4,444 people each year increase the number of errors by about 110%. There are 4,444 in need of serious reflection on the services provided by doctors. Most doctors and newcomers to the field also need a specific understanding of who the consumer is and what their rights, if at fault, are. Surveys show that most of them are knowledgeable.

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References:

[1] 2009 3 SCC 1

[2] III (2006) CPJ 142 NC

[3] CIVIL APPEAL NO. 2641 OF 2010

[4] 1989 AIR 1570, 1989 SCR (3) 241