Shield for noble Hands...

Liabilities Under Laws

  • Under criminal law - IPC
    • Sec. 52 which defines what is good faith
    • Sec. 87-91 which are related to consent
    • Sec. 304-A which is related to death of patient due to negligent act
    • Sec. 312-316 are related to causing abortions or miscarriage without proper consent
    • Sec. 319-322 deals with causing grievous hurt, or disfigurement endangering the life
    • Sec. 340- 342 which are related to wrongful confinement of patient
    • Sec. 499 which is related to defamation
    • Section 269 which deals about negligent act by which an infection can spread of dangerous disease and can cost someone's life
    • Section 270 which deals about malignant act by which an infection can spread of dangerous disease and can cost someone's life
    • Section 274 which deals about adulteration of drugs
    • Section 275 which deals about sale of adulterated drugs
    • Section 276 which deals about sale of drugs as different drugs or different preparation
    • Section 284 which deals about negligent conduct of doctors regarding the poisonous substances
    • Section 287 which deals about negligent conduct in respect of operation of machinery
    • Section 304-A which is about negligence which causes death of a person
    • Section 312 which deals with negligence which causes a woman a miscarriage
    • Section 313 which deals about negligence related to causing miscarriage without woman's consent
    • Section 314 which is about dealing with the death of the plaintiff when the doctor was miscarrying a baby
    • Section 315 which deals about intentionally to kill the baby inside or to try to kill the born baby after the birth
    • Section 316 deals with culpable homicide which will be consequence of causing death of quick unborn child
    • Section 317 deals with the responsibility of the parents that they cannot leave a child under the age of 12 years
    • Section 318 deals with concealment of birth by secretly disposing the dead body of a baby
  • UNDER CONSUMER PROTECTION ACT(CPA)
    • In order to understand the relevance of Medical Services with Consumer Protection Act 1986 we should refer the definition of the services in the act in which we can find that the activity for which a reasonable or valuable remuneration is taken then that can be called services and doctors do the same work of giving the patients the advice and treatment and taking fees in exchange of that. So medical profession is thus included in this case and the clauses of deficiency in service and negligence is all being described as same for this profession and thus it will be relating to this.
    • "consumer" means any person who—hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom¬ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
    • Explanation. - For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
    • Service may be of any description and pertain to any sector if it satisfy the following criteria:
      • Service is made available to the potential users, i.e., service not only to the actual users but also to those who are capable of using it.
      • It should not be free of charge, e.g., the medical service rendered free of charge in Government hospital is not a service under the Act;
      • It should not be under a contract of personal service.
    • The Court held that even though services rendered by medical practitioners are of a personal nature they cannot be treated as contracts of personal service (which are excluded from the Consumer Protection Act). They are contracts for service, under which a doctor too can be sued in Consumer Protection Courts. A 'contract for service' implies a contract whereby one party undertakes to render services such as professional or technical services to another, in which the service provider is not subjected to a detailed direction and control. The provider exercises professional or technical skill and uses his or her own knowledge and discretion. A 'contract of service' implies a relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. The 'contract of service' is beyond the ambit of the Consumer Protection Act, 1986, under Section 2(1)(o) of the Act. The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients' charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act.
    • "deficiency" means any fault, imperfection, shortcoming or inade¬quacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
  • UNDER MEDICAL COUNCIL OF INDIA ACT
    • State Medical Councils are empowered to take disciplinary action when prescribed standards of professionals conduct and etiquette or Code of Ethics are not observed by the doctors and violations of which constitute professional misconduct / Infamous conduct.
    • Under the following circumstances, a doctor can be temporarily or permanently debarred from practicing medicine.
      • Improper or indecent conduct towards the patient
      • Conviction in a Court of Law
      • Failure or dereliction of duty in giving professional certificates, reports and other documents
      • Contravening the Drugs and Cosmetics Act, 1940
      • Selling scheduled poison
      • Performing or abetting an illegal operation
      • Receiving or giving commission or using touts
      • Employing unqualified persons
      • Associations with (drug) manufacturing firms
      • Advertisements
      • Running shops (dispensing chemists) etc.
      • Failure to give professional service for certain things on religious grounds.
  • UNDER PRENATAL DIAGNOSTIC TEST ACT
    • PNDT Act - In Cehat and Ors. Vs. Union of India a public interest litigation filed for the implementation of the Pre Natal Diagnostic Techniques and(prevention of misuse) (PNDT) Act. The act was amended during the course of this petition and the Apex Court passed various orders for the effective implementation of the Act. In this case, CEHAT,MASUM an NGO and Sabu George an individual activist filed a petition before the Supreme Court stating that the PNDT act was not being implemented properly resulting in the falling female child sex ration in the country. The Supreme Court came down heavily on the central government and also the state government for failure to Implement the act. It stated in its order that the so called economically progressive states were also lagging behind in the female child sex ratio and had failed in the proper implementation of the Act.
  • UNDER ORGAN TRANSPLANTATION ACT
    • This law legalizes transplantation of human organs in cases of live donor, brain dead donors and donors who are considered dead in a conventional sense. The Act lays down detailed procedure for organ transplantation including setting up of various committees. Transplantation is permitted only in those hospitals which are specifically registered for the purpose.
  • UNDER DRUG AND MAGIC REMEDIES ACT
    • The object of this Act is to prevent self-medication and the inducement to take drugs for certain specific disease, condition or disorder, by advertising its alleged magical properties or healing power.
    • Zaffar Mohammad vs. State of West Bengal, the advertisement in question that was published in a local paper was as follows:
    • New life, New vigor, New spirit, New wave .If you want a cure, see today well known, world famous experienced registered Physician. Special diseases such as oldness in youth, all sorts of defect sin nerves, or weakness, laziness are treated with full responsibility, with new methods, new machines of science and electric treatment and are cured permanently.....‘Disorders of the nervous system’ is Item No.14 of the Schedule to the Act, hence the issue was whether the treatment and machines referred the advertisement were drugs for S.3 to apply. The Supreme Court held that Any article, other than food, which is intended to affect or influence in any way any organic function of the body of a human being is a ‘drug’ within the meaning of S.2(b)(iii). The so-called machines of science’ or of ‘electric treatment’ whose magically curative properties were advertised in a newspaper by the Appellant to cure nervous diseases, and designed according to advertisement to confer on mankind the blessings of new life and new vigor, are ‘articles’ intended to influence the organic function of the human body. A machine is a tangible thing which can both be seen and felt and as such it answers the of an ‘article’ within the meaning of S.2(b)(iii) of the Act. Such an advertisement was therefore not permitted and the accused had committed an offence.
  • UNDER FATAL ACCIDENT ACT(1855)
    • Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such, as would (if death had not ensured) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. A physician can be charged with criminal negligence when a patient dies from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross negligence. Before the administration of an anesthesia or performance of an operation, the medical man is expected to follow the accepted precautions. In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is, however, not liable for an error judgment.
  • UNDER HUMAN RIGHTS COMMISSION ACT
    • The Human Rights Protection Act, 1993 takes a very narrow view of human rights and provides that ‘human rights’ means the right relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution of India or embodied in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and enforceable by the courts in India.
  • UNDER MRTP ACT (Monopolies and Restrictive Trade Practices Commission)
    • Monopolies and Restrictive Trade Practices Act (MRTP), 1969 This Act is the precursor of Consumer Protection Act, 1986. Before the advent of Consumer Protection Act, 1986, this Act was the only resource to consumers against the unfair trade practices. The commission that looks into the disputes brought under MRTP Act based in New Delhi.
  • UNDER CROSS PRACTICE
    • In Poonam Verma vs. Ashwin Patel, the Supreme Court made its famous observation:
    • A person who does not have the knowledge of a particular system of medicine but practices in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan. The Court went on to observe that no person can practice a system of medicine unless he is registered either under the Central Indian.
    • Medical Register or the State Register to practice that system of medicine; and only such persons as are eligible for registration and possess recognized degrees as specified under the concerned Central and State Act may so practice.
  • UNDER LAW OF TORT
    • Traditionally, under this rule, physical pain and mental suffering are proper elements of damage. Normally, only in tort actions or, more pointedly, actions for malpractice, are pain and suffering or mental anguish allowed as elements of damage. Moreover, a tort rule of damages allows compensation also for impaired earning capacity, loss of time, and consequential damages.
  • UNDER CIVIL LAW
    • Every individual has a private right and in order to protect the right there is a legal remedy. According to Law of Torts, a doctor shall be responsible for his negligent act. According to Sec. 70 of Indian Contract Act, there is a contract (oral, written or implied) between a doctor and a patient, and both parties are bound by it. If a doctor doesn’t give complete or proper treatment then he/she may be held liable. Similarly, if a patient doesn’t pay the fees, doctors can file a civil suit. Doctors can take advances or deposits (this is legal) before starting treatment but they can’t keep the patient in confinement (this is against law) on the ground of nonpayment of fees.
  • UNDER CONTRACT LAW
    • If the law deals with the doctor patient relationship as a contract, similar to any other contracts, it can be argued that the physician must have corresponding rights and liabilities. Thus, if the physician is to be held free to contract and to be liable on his promise, he should not then be free to provide for his own protection in advance by the simple expedient of having the patient sign a printed form, in consideration of his agreement to treat him, absolving the physician of any and all liability whether based on negligence or purported representation.
  • PUBLIC INTEREST LITIGATION
    • An aggrieved patient can directly approach the High Court or the Supreme Court when his/her grievances was not properly redressed. PILs are usually resorted when public health programs are not implemented properly. Some of the landmark judgments on Supreme Court on health are the result of PILs.
  • LIABILITY IN EMERGENCY
    • In ParamanandKatara v. Union of India 1989 SC 2039, the Supreme Court observed that, “every injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death”.
    • In Pravat Kumar Mukerjee vs. Ruby General Hospital, the National Consumer Commission was concerned with the case of a young student whose motorcycle was dashed by a bus in Calcutta .He was brought to the Respondent hospital but the treatment was not continued as Rs.15, 000 as demanded by the hospital were not immediately paid. The boy died. The National Commission held that though a doctor was not bound to treat each and every patient, in emergencies the doctor was bound to treat the patient and could not insist on delaying treatment until the fees were paid. The Petitioner was awarded a compensation of Rs. 10 lacs.
    • LIABILITY OF HOSPITALS
      • Some of the conditions under which a hospital may be held directly liable include:
        • Improper maintenance of the hospital leading to injuries or death to the patient;
        • Failure in providing safe and suitable environment for treatment as guaranteed, viz, when the patient care is affected by absence or malfunctioning equipments, inadequate accommodation, incompetent staff, etc., resulting in harm to the patients;
        • Deceptive or misleading signboards and advertisements, wrong claims of availability of certain facilities may be construed as deficiency in service or unfair trade practice under the Consumer Protection Act, 1986 and damages can be awarded for such practices;
        • Charging for a bed facility, which was not provided, taking surcharges, amount taken as medicolegal charges or charging fees in excess of that mentioned in the list of charges displayed or disclosed or agreed upon;
        • Human immunodeficiency virus (HIV) and Hepatitis B surface Antigen (HbsAg) testing are either mandatory or voluntary. When the testing is legally done without the consent of the person, it is known as mandatory testing, e.g., for screening donors of blood, semen, organs, or tissues, etc. Otherwise, it has to be voluntary, i.e., with the knowledge and express-written consent of the person as it is necessary to respect the individual's need to maintain confidentiality; and
        • Improper maintenance of treatment records and failure to hand over such medical records to the patient or his authorized attendant or legal authorities within 72 h, which are in violation of the Medical Council of India Regulations 2002.
      • Moreover, if these medical records are not provided to the patients/attendants, it may, in addition, amount to the deficiency in service under the Consumer Protection Act, 1986.
      • On the other hand, a hospital may be held vicariously liable for damages caused to the patient by negligent act of its employees. Being an employer, it is liable as well under the principle of "qui facit per alium facit per se", i.e., the one who acts through another, acts in his or her own interests. However, there is an exception to this principle which is called "borrowed servant doctrine" according to which the employer is not responsible for negligent act of one of its employees when that employee is working under direct supervision of another employer.
      • In certain instances, honourable courts in India have held the hospitals liable in malpractice suits on the ground that persons who run hospitals are in law under the same duty as a doctor, i.e., when they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The courts observed that the hospitals must do it by the staff that they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs others to do his duties for him.
      • A hospital cannot escape liability by mere statement that it only provided infrastructural facilities, services of nursing staff, supporting staff, and technicians and that it cannot suo moto perform or recommend any operation/amputation. The hospital authorities are not only responsible for their nursing and other staff, doctors, etc., but also for the anesthetists and surgeons, who practice independently but admit/operate a case - National Consumer Redressal Commission in the case of "Smt. Rekha Gupta versus Bombay Hospital Trust and Anr" [2003 (2) CPJ 160 (NCDRC)].
      • Appointment of practitioners of alternative systems of medicine (Ayurveda/Unani/Sidha) or homeopaths in hospitals giving services in allopathy amounts to negligence. It is the duty of the hospital to provide properly qualified, skilled, and experienced doctors for treatment. All that is allowed to such practitioners is to make use of the various modern advances like radiology reports, laboratory investigations, etc. for the purposes of practicing in their own system (the Honourable Supreme Court of India). However, some States recognize the integrated courses or other qualifications as "sufficient qualification" for registration in the State Medical Register, and such registered practitioners can practice allopathy. In the States where no such privilege is available, such practitioners may prescribe or administer allopathic drugs for common ailments sold over the counter. Even then, the registration of homeopaths is restricted to Homeopathic Practitioners Act, 1959, and they are not allowed to practice allopathy.