2. Introduction
• We cannot imagine life, society, or community without law. Everyone
loves to live and enjoy life peacefully without chaos and Law plays a
vital role in it.
• According to Law, a career also plays an important role in everyone’s
life. There is an interconnection between law and life, life and career,
and law and career.
• This presentation emphasises two important things, as follows:
• Why do medical professionals need to do law study?
• What are the basic laws a person engaged in the medical profession
should know?
3. How is Law Study Beneficial for Medical Professionals?
• Law studies offer enhanced awareness.
• Law study is beneficial for a better understanding of the legal
language of health care policies and laws.
• Law study is beneficial to interpreting health care policies and laws.
• The law study offers a better understanding and addresses ethical
questions.
• Law study is beneficial for maintaining a doctor-patient fiduciary
relationship.
• In Medico-legal cases, Case Laws and Precedents play a vital role,
and Courts and adjudicating authorities follow the same while
adjudicating such cases arising out of treatment by the doctors.
4. Basic Laws Which Are Relevant to the Medical
Profession and of Which They Should Be Aware?
1. Indian Medical Council (Professional Conduct, Etiquette
and Ethics) Regulations, 2002:
•Like other professionals, medical practitioners are also
bound by the code of conduct.
•In exercise of the powers conferred under section 20A and
section 33(m) of the Indian Medical Council Act, 1956 (102 of
1956), the Medical Council of India, with the previous
approval of the Central Government, made the regulations
relating to the Professional Conduct, Etiquette and Ethics for
registered medical practitioners.
5. 2. Law of Contract:
• There is an implied contract between doctor and patient.
• Doctors are approached by patients as the patients believe that the
doctor can give medical treatment with the knowledge and
experience gained from the medical education and years of practice
and give relief to the patient from his disease.
• This kind of relationship can be considered as a contract between the
patient and doctor. Hence medical professionals must be aware of the
relevant provisions of the Law of Contract.
6. 3. Law of Torts:
• Sometimes, doctors may have to face a lawsuit for unliquidated
damages under the Law of Torts and hence they must be aware of
the provisions of the Law of Tort.
4. Consumer Protection Act, 2019:
• The medical profession and the treatment given by the doctors are
covered under the purview of the Consumer Protection Act, 2019.
• Patients can approach the appropriate consumer forums for
remedies and grievance redressal. Hence medical practitioners must
be aware of the relevant provisions of the Consumer Protection Act,
2019.
7. 5. Liability Under Indian Penal Code 1860:
• A doctor can be prosecuted under Sections 269, 270, 304-A or 338
of the Indian Penal Code 1860. These sections deal with bodily
harm caused to the patient and Section 304-A pertains to causing
death due to negligence.
• Medical practitioners must be aware of the relevant provisions of
the Indian Penal Code 1860.
• Section 269-Negligent acts are likely to spread infection or disease
dangerous to life.
• Section 270- Malignant acts are likely to spread infection or disease
dangerous to life.
• Section 304A- Causing death by negligence.
• Section 338- Causing grievous injury by an act endangering the life
or personal safety of others.
8. 6. Transplantation of Human Organs Act, 1996:
• This law governs the practice and procedures related to organ
donation in India. Any surgeon involved in or dealing with organ
transplants must be aware of the provisions of the Transplantation
of Human Organs Act, 1996.
7. Pre-Natal Diagnostic Techniques (Prevention of Misuse) Act, 1994:
• This law governs procedures related to Medical Termination of
Pregnancy (MTP). According to the law, doctors should discourage
the practice of unlawful abortions.
• This law had been enacted to curb the menace of female infanticide
in India. Medical practitioners must be aware of the relevant
provisions of this Act.
10. History
• The oldest known source that mentions medical negligence is the Code of
Hammurabi fixed fee for treatment and penalty for improper treatment.
• Ancient Egyptian law provided for punishment of Medical wrong doer and
similar provisions are there in Roman Civil Law.
• ‘Manusmriti’ states that all physicians who treat wrongly shall be liable to
pay a fine.
• Charaka Samhita deals with elaborate code of practice of physicians with
regard to their training, duties, privileges and their social status.
11. Law of Torts: Negligence
• Characteristics of Negligence:
A legal Duty to Take Care
Breach of the Said Duty
Damage
12. Black’s Law Dictionary
“the failure to exercise the standard of care that a reasonably prudent
person would have exercised in a similar situation;
any conduct that falls below the legal standard established to protect
others against unreasonable risk of harm, except
for conduct that is intentionally, wantonly, wilfully disregardful of
others rights.”
13. The American Approach
(i) a duty of care, requiring the actor to conform to a certain standard
of conduct;
(ii) failure to conform to the standard;
(iii) a reasonably close causal connection between the conduct and the
resulting injury or proximity cause; and
(iv) actual loss or damage to the plaintiff.
14. Bolam V. Friem Hospital Management Committee
• A doctor is not guilty of negligence------- if he has acted in
accordance with a practice accepted as proper------- by a
responsible body of medial men skilled in that particular art.
• A man need not possess the highest expert skill, it is well
established law that------ it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that
particular art.
15. Halsbury’s Laws of England
A person who holds himself out as ready to give medical advice or treatment
impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Such a person, whether he is a registered medical practitioner or not, who is
consulted by a patient, owes him certain duties, namely,
a duty of care in deciding whether to undertake the case;
a duty of care in deciding what treatment to give; and
a duty of care in his administration of that treatment.
A breach of any of these duties will support an action for negligence by the patient.
16. I M A v. V P Shantha & Ors.
• The Court observed that medical professionals did not enjoy any
immunity from being sued in tort on the ground of negligence.
• In the matter of professional liability, professions differs from
occupations.
• Professional men should possess a certain minimum degree of
competence and that they should exercise reasonable care in
discharge of their duties.
17. Poonam Sharma V Ashwin Patel
• In this case, a doctor registered as medical practitioner and
entitled to practice in Homeopathy only, prescribed an
allopathic medicine to patient. The patient died.
18. Achutrao Haribhau Khodwa V. State of Maharashtra
•Mop was left inside the lady patient’s abdomen during
operation.
•Peritonitis developed which led to a second surgery
being performed on her, but she could not survive.
19. Negligent or Not?
• In the nature of medical profession, skill differs from doctor
to doctor and more than one alternative course of treatment
are available , all admissible.
• Negligence cannot be attributed to a doctor so long as he is
performing his duties to the best of his ability and with due
care and caution.
• Merely the doctor chooses one course of action in
preference to the other available, he would not be liable, if
the course of action chosen by him was acceptable to the
profession.
20. Spring Meadows Hospital V. Harjot Ahluwalia
• A child was treated for seven days in this hospital for
typhoid.
• Consultant physician prescribed Chloramphenicol but the
nurse misread it as Chloroquine and indented for the
purchase of the injection and injected the same.
• Irreversible brain damage
• Whether the attending doctor was negligent or not?
21. Dr. Laxman Balkrishna Joshi V. Trimbak Bapu
Godbole
• Medical officer owes following duties towards the patient.
1. Duty of Care [Whether to undertake the case or not]
2. Duty of Care [Deciding the treatment to be given]
3. Duty of Care [ Administration of treatment]
22. • The Court held that the doctor who hold himself out as
competent to give medical advice and treatment, impliedly
undertakes that he is possessed of skill and knowledge for that
purpose.
• In this case the death of the patient was caused by shock
resulting from reduction of the fracture attempted by the doctor
without taking the elementary caution of giving anaesthesia to
the patient.
23. Philips India Ltd. V. Kunju Punnu (Small Pox Case)
• Burden of proof on plaintiff:
1. That the defendant had a duty to take reasonable care towards the
plaintiff to avoid the damage complained of;
2. That there was a breach of duty on the part of the defendant .
3. That the breach of duty was the real cause of the damage
complained of and such damage was reasonably foreseeable.
24. Martin F D’souza V. Mohd. Ishfaq
• The SC observed, “The law, like medicine is an inexact science. One
cannot predict with certainty an outcome of many cases. It depends
on the particular facts and circumstances of the case, and also the
personal notions of the judge concerned who is hearing the case.
• However, the broad and general legal principles relating to medical
negligence need to be understood.”
25. • A medical practitioner was not to be held liable simply because things
went wrong from mischance or misadventure or through an error of
judgement in choosing one reasonable course of treatment in
preference of another.
• A medical practitioner would be liable only where his conduct fell
below that of standards of a reasonably competent practitioner in his
field. [ Hucks V. Cole]
26. MAHARAJA AGRASEN HOSPITAL & ORS. V.MASTER
RISHABH SHARMA & ORS
• A medical professional should be alert to the hazards and
risks in any professional task he undertakes to the extent
that other ordinarily competent members of the profession
would be alert. He must bring to any professional task he
undertakes reasonable skill that other ordinarily competent
members of his profession would bring.
27. • It is common experience that when a patient goes to a hospital,
he/she goes there on account of the reputation of the hospital, and
with the hope that due and proper care will be taken by the hospital
authorities.
• If the hospital fails to discharge their duties through their doctors,
being employed on job basis or employed on contract basis, it is the
hospital which has to justify the acts of commission or omission on
behalf of their doctor.
28. Types of Medical Negligence
1. Active negligence
2. Passive negligence
3. Collateral negligence
4. Concurrent negligence
5. Continued negligence
6. Gross negligence
7. Hazardous negligence
8. Wilful negligence
9. Reckless negligence
10. Negligence Per se
30. Introduction
• Consumer for goods
• Consumer for services
• Who is not consumer ?
•Contract for Service and Contract of Service
31. IMA V. V. P. Shantha
• The issue was whether patients are consumers under
the CPA and could they claim damages for injury
caused by negligence of the doctor, hospital or nursing
home.
32. Charan Singh V. Healing Touch Hospital
• While quantifying damages, the forums are required to make
an attempt to serve the ends of justice so that compensation
is awarded.
33. Nihal Kaur v. Director, P.G.I.M.S.R.
A patient died a day after surgery and the relatives
found a pair of scissors utilized by the surgeon while
collecting the last remains. The doctor was held liable
and a compensation of Rs. 1.20 lakhs was awarded by
the state consumer forum, Chandigarh.
34. Malay Ku. Ganguly v. Sukumar Mukharjee
• No guarantee is given by any doctor or surgeon that the patient would
be cured.
• The doctor however must undertake a fair reasonable and competent
degree of skill, which may not be the highest skill. Adoption of one of
the modes of treatment, if there are many and treating the patient
with due care and caution would not constitute any negligence.
• Failure to act in accordance with the standard, reasonable degree of
care and skill and knowledge which he possesses. Failure to use due
skill in diagnosis with the result that wrong treatment is given would
be negligence.
• In a complicated case, the Court would be slow in attributing
negligence on the part of the doctor, if he is performing his duties to be
best of his ability.
35. The Court further took the view that informed consent after
evaluating the risks is increasingly becoming a requirement
keeping the developments in medical science in view and
opined that no communication was made in this case by the
doctors about the risks involved in the line of treatment,
whereupon the patient would decided whether to opt for
such treatment or not.
36. Vinod Khanna V. R.G. Stone Urology and Laparoscopy
Hospital & Ors
The National Consumer Disputes Redressal Commission
(NCDRC) has held that the use of fixed "informed consent cum
undertaking" by the hospitals to record consent from the
patients amounts to "unfair trade practice" within the
meaning of Section 2(1)(r) of the Consumer Protection Act,
1986.
37. Shailesh Munja V. All India Institute of Medical Services
• Claim of the Hospital: Since the treatment was subsidized by
the hospital it would not covered under the Act.
• The NC rejected the argument and held since the treatment
was subsidized and not totally free; the hospital would be
covered under the Act.
38. Ranjit Kumar Das V. ESI Hospital
• The ESI hospitals, though government run, are covered
under the CPA.
• In this case, the Complainant's wife was not given admission
to ESI Hospital though the Complainant was registered under
the Act.
40. Criminal Liability
• To impose criminal liability, for doctor’s negligence u/s 304 A , there
must be direct nexus between
• Death of patient; and
• Negligent act of the doctor
AND
• That act must be the proximate cause and efficient
cause without intervention of another’s negligence
41. Burden of Proof:
In criminal law, the burden of proof is much higher
on the prosecution as compared to the action in civil
law.
The prosecution has to prove his case beyond a
reasonable doubt.
42. • No criminal liability should be attached where a patient’s death results
from error of judgement or an accident.
• Mere inadvertence or some degree of want of adequate care and caution
might create civil liability but would not suffice to hold him criminally liable.
• If the liability of doctors were unreasonably extended to criminal liability
there by exposing them to the risk of landing themselves in prison for
alleged criminal negligence then the repercussion would be that the doctors
would be warned about their own safety rather than administering
treatment to the best of their ability.
43. Applicability of Mens Rea
• It applies when he carries out a procedure or adopts a
treatment or protocol knowing fully well that such treatment
may result to serious injury or even death of the patient
which another prudent medical professional will not carry
out without considering the grave consequences, such a
medical professional will be said to have acted recklessly and
will be criminally liable.
44. • A doctor will be prosecuted for medical negligence if the
negligent act can be described as Gross.
• A doctor may simultaneously sued before civil, consumer
and criminal courts for medical negligence.
• Unlike CPA, the liability for criminal negligence rises even if
the patient is treated without fees.
45. Jacob Mathew V. State of Punjab
• Deceased Admitted to Private Ward of CMC, Ludhiana.
• Patient felt difficulty in breathing. [ around 11.00 p.m.]
• Two doctors Jacob Mathew and Dr. Allen Joseph came after lapse of 20-25
minutes.
• An oxygen cylinder brought and connected but the breathing problem
increased further (Cylinder was empty)
• Another cylinder was brought meanwhile the patient died.
• [Trial and HC held the liability U/S 304 A]
46. Juggan Khan V. State of MP
• The doctor administering poisonous medicine to the
patient without thoroughly studying what might be
the effects of such medicine is liable u/s 304 A.
47. R P Dhanda V. Bhurelal
• Qualified doctor performed an operation according to the
recognised Indian Method of the treatment in good faith.
• Consent was also obtained.
• Exemption is given. [act not intended to cause death, done
by consent in good faith for the person’s benefit]
48. Dr. Suresh Gupta vs. Govt. of NCT Delhi
• The Full bench of the Supreme Court of India declared that extreme
care and caution should be exercised while initiating criminal
proceedings against medical practitioners for alleged medical
negligence.
• The Court said that doctors would not be able to save lives if they
were to tremble with the fear of facing criminal prosecution.
49. Guidelines: Prosecution of Doctors
• A private criminal complaint should not be entertained unless the
complainant has produced prima facie evidence in the court.
• The investigating officer before proceeding against a doctor, should
obtain an independent medical opinion preferably from, a doctor in
government service qualified in that branch of practice.
• The accused doctor should not be arrested in routine manner unless
his arrest is necessary for furthering investigations or for collecting
evidence or unless the investigating officers feel satisfied that the
doctor will abscond.
50. Bolam Test
• In the case of a medical men negligence means failure to act in accordance
with the standards of reasonably competent medical men at the time.
• This is a perfectly accurate statement, as long as it is remembered that there
may be one or more perfectly proper standard; and if a medical man
confirms to one of those proper standards then he is not negligent.
• A doctor is not guilty of negligence if he has acted in accordance with a
practice accepted as proper by a reasonable body of medical men skilled in
that particular art.
