Medical Negligence and Law.

Contract Act 1872. Law of Tort. Consumer Protection Act

1986. Indian Penal Code 1860.

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Medical Negligence.

Recently Supreme Court awarded around 7 cores damages against three doctors and AMRI Hospital Calcutta. Highest ever in the history of India.

Every year around 98000 cases of Medical negligence occurs.

Filling of Medical Negligence case is on the rise.

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Duty of Doctor.

Laxman Joshi v Babu Godbole, AIR 1969 SC 128. reduction of fracture by Doctor without administration of anesthesia.

A duty of care – Take or not to take case.

A duty of care- Deciding the treatment.

A Duty of care- Administration of treatment.

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Medical Negligence.

Bolam v Frien Hospitals Management Committee- “A doctor is not guilty of negligence if he has acted in accordance with practice accepted as proped by reasonable body of medical man skilled in that particular art”

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Medical Negligence.

Bolitho v City and Hackeny Health Authority (1997) 4 All ER 771-doctors does not escape his liability merely by adopting one of the standard practice. Doctor must have applied their minds to comparative risks and benefits of accepted standard and chosen the right one.

Bolam ratio protects Doctors and Bolitho favors patient.

504/08/23

Medical Negligence.

Indian Supreme Court followed ratio of Bolam.

Supreme Court in Malay Kumar v Dr Sukumar Mukerjee,(2009)9 SCC 332, followed Bolitho case- quality of care to be expected to be in tune with proportionate to reputation of hospitals.

liable-over dose, not informing side effects, not taking extra care in high mortality. 604/08/23

Doctors Discretionary.

Reasonable care to be determined by taking the circumstances in which doctor is placed.

Where there is different course of treatment-doctor has discretionary.

Rule of error judgment. Difference between normal and

emergency course.704/08/23

Contract Act.

No legal duty to treat the patient except contract.

Advice and consultation through TV and News Paper-not contract.

The informed consent. No Assurance of Success of

Treatment. Discretionary power to chose mode

of treatment.

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Duty of patient.

Necessary truthful information. Duty to follow the instructions. Duty to follow up the further

treatment. Consultation in Emergency.

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Exemptions from Consent.

Emergency.Emotionally and

psychologically weak patient.Wavier.

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Tort.

Independent of Contract. Treatment without consent

amounts Assault and Battery. Treatment can not continued

against wish of patient. In case of unconscious

patient-guardian should consult doctor.

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Tort.

Passive euthanasia is permissible.

Standard of care is reasonable. Vicarious liability is applicable,

even hospital can be sued. Doctrine of Ipsa loquitur-facts it

self speaks.

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Contributory Negligence.

Contributory negligence-patient failed to take care about himself.

Choosing wrongful doctor which is apparent.

Failure to furnish necessary information.

Refusal to submit for further test.

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Contributory Negligence. Failure to follow doctor instructions. Failure to Mitigate the Harm. Contributory Negligence is not

absloute defense. Contributory Negligence is

applicable to conscious patient. In case of non-Conscious patient,

duty is on doctor or guardian. Contributory Negligence of guardian

is attributed to patient.

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Other Defense.

Volienti non fit injuria- defense of consent.

It is applicable to risk involved in the treatment without negligence of doctor.

Inevitable Accident-in the course of operation- unexpected response which requires higher care than prescribed by law.

Emergency situation-doctor need not have necessary qualification and specialization.

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Consumer Act 1986.

Time Bound Remedy. Economical Remedy. Simple Procedure. Free service and service under personal

contract excluded. Indian Medical Association v. Shanta,

AIR 1996 SC 550- Consideration should be fee not tax.

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Consumer Act 1986.

G.M. Central Railway(2007) 4 SCC 596 railway employees are consumer for railway hospitals - service is free of cost.

Kishore Lal v Chairman ESIC (2007) 4 SCC 579 held-beneficiary of ESI hospital is consumer.

Martin F.D’Souza v Mohad Ishaq, (2009) 3 SCC 1-Negilgence-Prima Facie Evidence-Refer the matter to Expert Committee-Negative Report-not proceed with case.

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Consumer Protection Act 1986. Supreme Court-Kishan Rao v Nikil Super

Speciclity Hospital (2010) 5 SCC 513, wrongful treatment –not every case has to be referred to expert committee. Earlier ratio over-ruled.

Parmanand Katara v Union of India AIR 1989 SC 2039-No refusal of medical treatment to accident patient in need.

Sparing Meadow Hospital(1998) 4 SCC 39-injuction by unqualified Nurse-vegetative state-17.5 Lakh.

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Consumer Act 1986. Kantha Motecha v United Insurance Co,

Maharashtra State commission-held foetus is consumer.

Standard of care needs to be enhanced. District Forum pecuniary Jurisdiction

needs to be enhanced. It must be expanded to Taluka level. One of the member should be doctor. Compulsory insurance for Hospitals and

clinic like motor vehicle.

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IPC. Section 304-A-Rash and negligent Act

causes death not amounting culpable. Judiciary made difference between

civil and criminal negligence. Negligence should be gross and

recklessness. Negligence directly related to existing

facility, infrastructure, and availability of staff.

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IPC Two Judges Bench Suresh Gupta v. Govt of

NCT of Delhi-held 304A does not include word gross and recklessness.

Three judges bench in Jacob Mathew v state of Punjab, (2005) 3 SCC 576-held negligence should be gross and recklessness.

No Private complaint unless there is prima-facie evidence from expert.

Police FIR only after Medical Expert Opinion.

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IPC.

Doctor need not be arrested, unless not co-operating in investigation, likely to escape and for collecting evidence.

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