Medical Profession and Law

Medical Profession is one of the noble professions in the present civilisation. A patient in distressed circumstances looks to the doctor as a ray of hope for his recovery. A doctor saves the life of a serious patient and assumes the position of God in lay-man’s mind. But this so called God now-a-days is frequently subjected to civil or criminal litigation for his lapses. This is because of legal literacy, legal awareness, supplemented with modern legislations like consumer protection laws. Notwithstanding this, the law always upholds the dignity of medical profession and medical personnel.

So far as criminal liability of doctors is concerned, Section 88 of Indian Penal Code comes to their ready help. According to this section, causing of any harm to any person, if it is for his benefit is no crime, provided the act which causes harm is done in ‘good faith’ and express or implied consent of that person, to suffer that harm is obtained. A surgeon would be protected, if a patient dies during or after an operation, if that patient has given free and intelligent consent to take the risk of the operation and the surgeon has acted in good faith. The term ‘good faith’ in this section is to be interpreted as meaning ‘with due care and attention’.

The Court, before holding a doctor guilty of carelessness, has to consider, whether in execution of the duty, which a doctor has undertaken to perform, the doctor is proved to have shown ‘gross’ want of care or gross culpable want of skill.

It is always desirable and prudent for a doctor to take express or written consent of the patient for the required treatment. But a patient who puts himself under the treatment of a doctor is supposed to give an implied consent to suffer the harm and to take the risk of treatment. But if the medical practitioner is not qualified and registered, the consent is not the consent obtained in ‘good faith’ so the quacks would not be protected under section 88, even if the consent of the patient is obtained. Due diligence, caution and care refer to the moment of treatment and also to learning and the experience of the doctor who has to have acquired earlier. If a person purports or pretends to act as a doctor without knowing anything of medicine or surgery and tries to do the best, he could under the circumstances still be acting in bad faith, because he has set himself up as a medical practitioner without the requisite education, training and experience. The two elements i.e. consent on the part of the patient and good faith on the part of the medical practitioner are interdependent and nobody can claim the benefit of the exception without ‘good faith’.

Greater the education of the doctor, the greater will be the amount of care, attention and skill required. A surgeon does not undertake that he will perform a cure. He also does not undertake to use the highest possible degree of skill. He undertakes a fair, reasonable and competent degree of skill.

If death of the patient is caused by ‘rash and negligent’ treatment of the doctor, then the doctor would be criminally liable under S. 304-A of the Indian Penal Code, the punishment for which is two years of imprisonment or fine or both. The rash or negligent act must be the direct or proximate cause of death. To hold a doctor responsible under this section, criminal negligence should be proved i.e. gross and culpable neglect or failure to exercise that reasonable or proper care and precaution to guard against injury to the patient which having regard to all the circumstances attending the charge, it was imperative duty of the doctor to have adopted. It is not every little trip or mistake or genuine error of judgment that will make a doctor so liable. Negligence that may give rise to civil liability will not be enough for the purpose of establishing the crime under Section 304-A of the Indian Penal Code.

A civil suit for damages may lie against a medical practitioner if his negligence has caused an injury to the patient. But the burden of proving negligence lies on the patient complaining the injury. This civil liability of doctors extends to negligence in diagnosis and negligence in respect of treatment. The doctor has a duty to warn his patient of risks inherent in treatment. After examining a patient, the doctor should be careful in deciding what line of treatment he should adopt. The doctor has discretion in choosing treatment which should be given to the patient. A doctor, who acts in accordance with a practice accepted as proper by a responsible body of medical practitioners, is not negligent merely because there is a body of opinion that takes a contrary view.[i] The test of adequacy of care to be exercised is the standard of the ordinary skilled man in exercising and professing to have that special skill. A man need not possess the highest degree of skill. It is sufficient that he exercises skill of an ordinary competent man exercising that particular art. In the case of a doctor, negligence means failure to act in accordance with the standards of reasonably competent medical men. There may be one or more perfectly proper standards and if the doctor conforms to one of these, then he is not negligent. A doctor undertakes to bring a fair, reasonable and competent degree of skill. A breach of this duty gives right of action for negligence to the patient. A doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Difference of opinion and practice do exist in all professions and medical profession is no exception to that. There is seldom any one answer exclusive of all others to problems of professional judgement.

The hospital authorities are responsible for the whole of their staff; not only for the nurses and doctors but also for the anaesthetists and surgeons. This staff may be of any categories: permanent, temporary, resident, visiting, whole time, part time. The hospital authority is responsible for all of them because even though some of them may not be servants, they are in the position of agents of the hospital to give the treatment.

The Consumer Protection Act, 1986 is enacted for better protection of the interests of consumers. The object of this Act amongst other things is to provide speedy and simple redressal to consumer disputes through quasi-judicial machinery set up at the district, State and Central level. The quasi-judicial bodies have been empowered to award compensation to consumers. ‘Consumer’ means any person who buys any goods for a consideration or hires any services for a consideration. Any ‘service’ rendered ‘free of charge’ is expressly excluded from the scope of the definition of ‘service’, so the persons who avail themselves of the facility of the medical treatment in Government Hospitals are not Consumers and the said facility as offered in Government Hospital cannot be regarded as services ‘hired’ for ‘consideration’ for the purpose of the Consumer Protection Act.[ii] In order to satisfy the definition of ‘Consumer’ a person should have hired any services for a consideration. But where a hospital renders services of hospital on payment, then such a patient is ‘Consumer’ within the scope of the Act. It is not a contract of ‘personal service’.[iii] Legal representative of the deceased consumer has a locus standi to file complaint regarding deficiency of service.[iv]

It was held in a case[v] that the provisions of the Consumer Protection Act relating to adjudication of consumer disputes and award of relief under Section 14 of the Act fully apply to the disputes concerning deficiency in the service rendered by the hospital and the members of the medical profession.

The doctors frequently refuse to attend injured patients in accident cases or medico-legal cases. The reason is they fear that they would be unnecessarily harassed by police or prosecuted for doing their duty without first complying with the police formalities. The Supreme Court of India in this regard observed in a Public Interest Litigation:[vi] “Preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored. Every doctor whether at Government Hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. The laws of procedure whether in statute or otherwise which would interfere with the discharge of this obligation cannot be sustained and must therefore give way. Every injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter procedural criminal law should be allowed to operate.”

It is prudent and beneficial for a doctor to get insured for Doctor’s Professional Indemnity Insurance. The policy of insurance indemnifies any act committed by the insured giving rise to any legal liability to patient. The indemnity applies to claims arising out of bodily injury, illness or death of any patient caused by error, omission or negligence in professional service rendered by the insured doctor. It should be remembered that only civil liability to pay damages to patients is covered by insurance. Criminal liability can never be insured. The insured doctor would still be liable personally for any criminal wrong or any act committed in violation of law. The policy never covers liability arising out of deliberate, wilful or intentional non-compliance of any statutory provision.

Medicine and law frequently go hand in hand. Every medical practitioner, as a matter of prudence, should know the basic principles and provisions of law pertaining to medical practice. He should be aware of his legal rights, duties, obligations and liabilities. Then he will be freed from misplaced anxieties about clutches of law!

[i] Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118.
[ii] Consumer Unity and Trust Society, Jaipur v. Rajasthan 1991 (1) CPR 241.
[iii] Smt. Motibai Dalvi Hospital v. M. I. Govilkar, 1991 (1) CPR 334.
[iv] Gulam Abdul Hussain v. Dr. Katta Pullaiah Choudhary 1991 (1) CPR 499.
[v] Sachin Aggarwal alias Vicky v. Dr. Ashok Arora (1993) 1 CPJ 113.
[vi] Pt. Parmanand Katara v. Union of India, A.I.R. 1989 SC 2039.

(Complete Article available in Criminal Law Journal, July 2004, at pp. Journal 210-214.)