A study shows that there is a 110% rise in the number of medical negligence cases that are reported every year. The study also brings out the fact that 12% of the cases decided by the consumer protection forum are related to medical negligence out of which 90% are the cases involving hospitals. Between 60 to 66 percent of the cases filed are because hospitals do not take proper consent from relatives before performing certain procedures or changing hospitals, or due to improper documentation throughout the course of diagnosis and treatment.
Therefore, it is quite inevitable that the medical profession which is perceived as the noblest profession is miserably failing to acknowledge its duty to serve the people properly.
The definition of ‘Medical Negligence’ has remained unchanged over the time- “ Failure to exercise reasonable skill as per the general standards and the prevalent situation is termed as medical negligence .”
Medical Negligence is the tort which takes cognizance of the following:
The remarkable statement of law propounded in the famous Bolam’s case has been extensively accepted as decisive for the standard of care necessary for both, professional men generally and medical practitioners specifically. The two things which are vital before hearing any case relating to medical negligence have been noted below:
It was only after the judgment of Supreme Court in Indian Medical Association vs. VP Shantha , that medical profession has been brought under the purview of Consumer Protection Act,1986 vide Section 2(1)(o), 1986 of the act.
In order to bring the ‘service’ within the purview of the definition of services provided in Section 2(1)(o) of COPRA following basis needs to be adhered to:
Therefore, medical services under the contract of personal services or rendered free of cost will not be within the scope of the definition of the services itself provided under Section 2(1)(o) of COPRA.
In the judgment rendered in Indian Medical Association vs. VP Shantha , the court chose to assume a narrow approach for cases pertinent to ‘ free medical care ’. It differentiated between the following circumstances-
1.Services which are rendered free of cost to everyone availing them;
2.Services which must be availed by payment by everyone availing of them;
3.Services which are availed usually by payment, however, are made available free of cost to the persons who cannot afford to pay for them.
The Apex court in this landmark judgment found that services rendered by doctors and hospitals which fall in the second and third category will be covered within the ambit and definition of a “service” as defined in Section 2(1)(o) of COPRA. Therefore, persons who avail free service are “beneficiaries” and as such are covered within the ambit of definition of “consumer” under Section 2(1)(d) of the Act.
Additionally, any forum trying a case involving an issue of medical negligence in any jurisdiction must take into consideration at least the following three considerations before coming down to a decision. These are that:
The patient or relatives have the burden of proof to prove the negligence, except in cases where relatives have no access, for example in a nursery, intensive care unit, operation theatre, etc. Res ipsa loquitur is a state of gross negligence where things speak for themselves and hence there is no need to prove.
In Fardon v.Harcourt Rivington , the court set out the ‘reasonable man test’ for foreseeable ability. “ If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of reasonable man, then there is no negligence in not having to take extraordinary precautions. ”
A study demonstrated that the majority of cases are from:
In a writ petition, Mr. R Raheja vs. The Maharashtra Medical Council the High Court of Bombay has given a landmark judgment that the patient or his legal heir have the privilege to acquire copies of the entire medical record on payment of reasonable costs.
There are several defenses which are available to a medical professional accused of medical malpractice which has been enumerated below-
Consumer disputes redressal agencies which are popularly called as Consumer Forums or Consumer Courts have been created under the act at national, state and district level. In India, the COPRA, 1986 envisages three-tier grievance redressal mechanisms:
There is a particular time limit provided for the disposal of cases under the Act. A notice is sent to the respondent after the complaint is registered. The respondent compulsorily has to reply within a time period of 45 days, failing which ex parte hearing can be held. An appeal can be filed in the higher commission, within 30 days from the date of the decision.
An appeal can be filed before the State Commission against the decision of the district forum. An appellate jurisdiction has been provided with the National Commission for a further appeal against the decision of the State Commission. Any verdict rendered by the National Commission can be challenged in the Apex Court of India as well.
It is worthwhile to note that a total of 44,47,487 out of 48,85,877 cases have been disposed of since the inception of the Consumer Protection Forums all over the nation, striking a disposal percentage of 91.03%.
| Sl. No. | Name of Agency | Cases filed since inception | Cases disposed of since inception | Cases Pending | % of total Disposal |
| 1 | National Commission | 124418 | 105070 | 19348 | 84.45% |
| 2 | State Commissions | 812044 | 696466 | 115578 | 85.77% |
| 3 | District Forums | 3949415 | 3645951 | 303464 | 92.32% |
| TOTAL | 4885877 | 4447487 | 438390 | 91.03% |
According to the Consumer Protection Act, 1986 a complaint can be filed in:
Every grievance filed shall be accompanied by a fee in the form of crossed Demand Draft drawn on a national bank or via a crossed Indian Postal Order drawn in favour of the Registrar of the State Commission and payable at the respective place where the State Commission or the National Commission is based. (Table)
Whenever a Consumer Forum whether it is a National, State, District forums or a criminal court receives a complaint against a doctor or then it must refer the issue to a competent doctor or a committee of doctors and get the allegations confirmed.
After the confirmation by the aforementioned parties, if it is prima facie found that medical negligence has taken place, then only a notice can be sent to the doctor or the hospital.
According to the criterion laid down in Jacob Mathew case, the police officials were warned not to arrest or harass doctors, otherwise, they will have to face legal action.
Section 26 has been provided to keep a check on the tendency of filing false and trivial or vexatious complaints. Where the Consumer Disputes Redressal Forum is satisfied that the complainant had approached the Forum without adequate justification, and frivolously, it provides for the following actions to be taken:
Frivolous lawsuits have been the major reason for increasing healthcare cost.
Hereunder are the negative impact on the medical sector:
Hereunder are the positive impact on the medical sector:
Usage of defective equipment and medical tools in health care can be pernicious and lead to injury to the consumer resulting in a complaint against the doctors. Yet, as per this provision, the manufacturers of such unfit equipment will go scot-free.
Another concern is that the services which are rendered free of charge are excluded from the scope of COPRA. This at one stroke denies recourse for those aggrieved persons who have availed such free medicare.
It is necessary for the medical profession to undertake some serious introspection. The Medical Sector needs to accept the fact that it has failed miserably in self-governance. It needs to organize various ethical forums so as to revitalize and serve with complete righteousness.
Swach Bharat Swasth Bharat catchy slogan to be title song Government Hospitals with nexus with private chemists and doctors come under the Consumer Act. How? The Consumer Commission should apprise the Ministry of Consumer Affairs that the nexus besides government hospitals not equipped with facilities and medicines and tests recommended to their private brethren makes them equally responsible under Consumer Act. Newspapers and television news channels every summer in India as usual are covered with news of water borne diseases. Seems the various germs are more active and environment and hygiene permits them to harrass the human race. Are we more delicate than birds and butterflies .Seems so. Should this not be in the jurisdiction of the Tribunal which considers only Greens essential for health as they provide oxygen. Then why are air and water borne diseases not regulated yet. The common man is scared of enphilitis which has taken the death toll to several hundreds in Bihar, What is the Green Tribunal doing about trees which are causing the dreadful health problem. Most TV channels broadcasted infants mortality in Muzzaffarpur according to medical professionals due to hypoglaecemia. The cause is the leechee fruit gardens .Gardens causing infant mortality. Infants who are in early years of infancy and cannot walk around or crawl in fields. Will the television cameras please focus on the cause .Not a single channel blamed the weather though the treament given was children with a drip of saline water. Is the Medical Council going to look into it else Consumer Forums of the Districts look into it under supervision of the NCDRC. Its nursing which was lacking . Every year the virus is rechristened to save failure in its prevention . Why do we need hospitals to be full to its utmost capacity ,patients lined up. This is a clear sign of maladministration in providing basic healthy conditions. Prime Minister Narendra Modi should extend the Swaach Bharat solgan as usual to Swaach Bharat,Swastha Bharat. Bharat resides in the villages. The Panchayats Bloc head is unable Municipal laws and restrictions do not seem to work .Cleaning drains, providing clean water to drink, air which is free from infection is required more than the slogan on environment which has with time no longer holds water. In villages nature is bountiful but man has made the environment unhealthy by not providing proper disposal . Typhoid is rampant every summer. Why can we not plug the cause. Water, coconut water, ice creams bring relief in summers and are popular in cities. FSSAI has taken care to renew the license every year of ice cream manufacturers. All instructions on contents including date of manufacture, date when it is best before are printed on sealed covers which were not as in earlier days. Then why do school children fall ill . Is the retailer’s cart unhygienic. Have we taken care and mark them after checking as approved in districts , cities. Cold machine water is in demand by those on outdoor assignments at bus stands and pavements .
Can they not use disposal glasses as the glasses in which water is served can hardly be cleaned due to lack of water to wash.That goes for the glasses. Coming to quality of drinking water should be as a student I use to get infection everytime I consumed the water and used to wonder why even if I use my own glass. This question that haunted me every summer was answered when on my visit to West Delhi I witnessed in the evening at the place which did business of provided this water that on returning to deposit money the owner checked consumption of water with a dirty stick which was put in to measure the level of consumption. District Consumer Forums should suo motu take up these in the welfare of the consumer. The National Green Tribunal cannot wait for a petition to be filed to remind them the purpose of saving the environment is for the sake of the health of beings. Its a wake up call when such atrocities are reported. These were on and must be in other parts of the country where cries and woes of the poor are silenced and not surfaced Man indeed is a Selfish Animal as described by political philosophers. This can be seen from the plight of the poor which is as bad as the stray living beings are kept as pets as long as required and let loose to be crushed Its painful sight as we cross roads and colonies of metros .This is a call for vets too.Have the vets ever tried to nurse them. No .Why? Because that is what Man is. So, lets wait to reap what we sow. Man is trying to locate water on the moon seems a joke on earth. Sewa Hak Se Karvao. JAGO aur JAGAO. Sent from my i pad
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