The activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression “service†as defined in Section 2(1) (o) of the Consumer Protection Act and in the event of any deficiency in the performance of such service the aggrieved party can invoke remedies provided under the Act by filing a complaint before the consumer forum having jurisdiction. Medical practitioners, though belonging to the medical profession are not immune to a claim for damages on the ground of negligence.
The word ‘negligence’ may be defined as a breach of duty caused by the omission to do something, which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. In an action for medical negligence, the plaintiff has to prove the following essentials –
1. That the defendant owed a duty of care to the plaintiff.
2. That the defendant made a breach of such duty.
3. That the plaintiffs suffered damage as a consequence thereof.
A doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice then merely because there is a body of opinion that takes a contrary view will not make him liable for negligence. (Vinitha Ashok v/s Lakshmi Hospital (2001) 8 S.C. 731).
If a man is or held out to be especially skilled in a particular profession he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily an expert in that profession. The duty to take care must be towards the plaintiff. The question whether the defendant’s conduct amount to negligence or a breach of duty to use reasonable care is a question of fact and had to be decided from case to case. In an action of negligence, the plaintiff must prove that there was actual damage and that the damage resulted to him in consequence of negligent act as direct and proximate cause of the damage. In absence of that no action lies. Damages are awarded to compensate the plaintiff.
Doctrine of Res Ipsa Loquitur – As a general rule, it is for the plaintiff to prove that the defendant was negligent. The initial burden of making out atleast a prima facie case of negligence as against the defendant lies heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff. If the plaintiff is not able to prove negligence on the part of the defendant, the defendant cannot be made liable.
The term ‘negligence’ is generally used for the purpose of fastening the accrued with liability under the Criminal Law. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law.
Section 304A of IPC reads thus –
“304A. Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with time, or with both.
A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Therefore it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as “gross negligence†or “recklessness†. It is not merely lack of necessary care, attention and skill. Thus a doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State. There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. A doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.
The Supreme Court has formed guidelines for prosecution of medical professionals –
A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support negligence on the part of the accused doctor.
– The investigating officer should before proceeding against the accused doctor of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in the branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation.
– Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
If the doctor has taken necessary precautions and given the best possible treatment, followed the proper procedure and guidelines, then usually there is no deficiency in service on the part of the doctors and the complaint is liable to be dismissed.
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