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The Law of Medical Negligence
Part 4
Defenses available to the Medical Practitioner/Hospital/Nursing Home
Complaint
made after period of limitation.
Every complaint must be filed within two years of
the cause of action (the negligent act/omission
alleged in the complaint). When does a cause of
action arise? Normally the time for a cause of
action to arise would be when the patient has
suffered harm. Thus if an operation has been
performed negligently on January 1, 1996, the
patient must file the complaint before 31st
December 1997. However, if the patient was
unaware of the negligence, the time for filing
the complaint would be extended. In America this
is called the "Discovery Rule". This
rule envisages the discovery by the patient of
the alleged fact complained. Example a foreign
body has been left within a cavity and the
patient was aware of this only after some months
of operation, the forum would extend the period
of two years available to the patient for filing
a complaint. Similarly, if a vasectomy operation
was discovered by the patient to have failed due
to negligence, the limitation period would be
extended by the tribunal. Also if the negligence
is a continuing one, a fresh period of limitation
begins to run every moment of the time during
which the injury is being suffered by the
patient. Example a wrong drug has been prescribed
and the patient comes to harm during continuous
consumption of the drug, the two year period
begins afresh during the whole period of use of
the drug.
Dispute
needs be heard by a civil court
The Consumer Protection Act, 1986 is a
legislation which has speedy justice as one of
its objectives. Most forums depend upon evidence
in the form of affidavits to shorten the
procedure which in a civil court would need
months to record, since every examination of a
witness is generally followed by
cross-examination. If there are many witnesses
the time consumed is enormous and along with
elaborate pleadings and documents each case takes
years to complete. To obviate delay, tribunals
dealing with consumer disputes allow evidence to
be presented in the form of affidavits. Since
many medical matters are complex, negligence may
be difficult to establish without detailed
evidence. Under such circumstances the medical
practitioner may make an application to the forum
to transfer the complaint to the civil court for
recording detailed evidence. The National
Commission has observed "The statute does
not contemplate the determination of complicated
issues of fact involving taking of elaborate oral
evidence and adducing of voluminous documentary
evidence and a detailed scrutiny and assessment
of such evidence. It is no doubt true that the
Forums constituted under the Act are vested with
the power to examine witnesses on oath and to
order discovery and productions of documents. But
such power is to be exercised in cases where the
issues involved are simple. Even in such cases ,
if it appears to the Forum that the issues raised
cannot be determined without taking elaborate
oral and documentary evidence, it is open to it
to decline to exercise jurisdiction and refer the
party to his ordinary remedy by way of
suit." Similarly the Supreme Court in Indian
Medical Association versus V.P.Shantha &
Others has observed that " It is no doubt
true that sometimes complicated questions
requiring recording of evidence of experts may
arise in a complaint about deficiency in service
based on the ground of negligence in rendering
medical services by a medical practitioner; but
this would not be so in all complaints about
deficiency in rendering services by a medical
practitioner. There may be cases which do not
raise such complicated questions and the
deficiency in service may be due to obvious
faults which can be easily established such as
removal of the wrong limb or the performance of
an operation on the wrong patient or giving
injection of a drug to which the patient is
allergic without looking into the out-patient
card containing the warning or use wrong gas
during the course of an anesthetic or leaving
inside the patient swabs or other items of
operating equipment after surgery. One often
reads about such incidents in the newspapers. The
issues arising in the complaints in such cases
can be speedily disposed of by the Consumer
Disputes Redressal Agencies and there is no
reason why complaints regarding deficiency of
service in such cases should not be adjudicated
by the Agencies under the Act. In complaints
involving complicated issues requiring recording
of evidence of experts, the complainant can be
asked to approach the civil court for appropriate
relief. Section 3 of the Act which prescribes
that the provisions of the Act shall be in
addition to and not in derogation of the
provisions of any other law for the time being in
force, preserves the right of the consumer to
approach the civil court for necessary
relief." (emphasis supplied) Thus it is open
to the medical practitioner in truly complex
cases which require recording of expert evidence
to apply to the Consumer Forums to direct the
complainant to seek remedy in the civil court
rather than in the consumer forum. Denial by the
consumer forum would probably form a good reason
for a revision application to be made by the
medical practitioner to the State Commission in
case the complaint is being heard by the District
Forum or to the National Commission in case the
complaint is being adjudicated by the State
Commission.
Complainant
has filed a suit in a civil court
The Consumer Forums are especially created
tribunals to decide consumer disputes. As a
matter of policy, where the subject matter of a
complaint is sub-judice before the ordinary civil
court, a concurrent adjudication in respect of
the same complaint will not be entertained by the
Consumer Forums. A complainant has the option to
seek redress either under the Consumer Protection
Act or under the provisions of any other law for
the time being in force but cannot seek redress
under both simultaneously. Can a patient who has
already instituted a suit in a civil court
withdraw the suit and institute a complaint under
the Consumer Protection Act? There is yet no case
law on the subject but the prevailing opinion is
that the patient can withdraw the suit and
institute a complaint. Would the complaint be
barred by limitation if more than two years have
passed since the suit was filed in a civil court
? The answer is in the negative since Consumer
Forums would construe the delay in filing the
complaint as "sufficient cause" for the
delay.
Defect
of Parties
Defect of parties could be either due to
non-joinder or misjoinder. In every complaint
there are necessary parties and proper parties. A
necessary party is one who ought to have been
joined and without whose presence no order can be
passed. Proper parties are those whose presence
enables the court to adjudicate the issue more
effectually and completely. Example if the
complainant who has undergone an operation and
suffers paralysis of the lower extremities due to
a spinal anesthetic and files a complaint against
the surgeon alone without joining the anesthetist
as an opposite party, the surgeon against whom
the complaint has been filed could take an
objection about non-joinder of a necessary party
(the anesthetist) under Order 1, Rule 9 of the
Civil Procedure Code, 1908. Example where the
patient has been treated by multiple specialists
and only one is made the opposite party the
medical practitioner against whom the complaint
has been filed could raise an objection about
non-joinder of other specialists as proper
parties since complete and effectual
determination of the issue would require that all
those who have treated the patient should give
their version of the alleged negligent
act/omission to enable the court to reach a just
decision. The medical practitioner should point
the defect of non-joinder or misjoinder in his
written statement and on the day of the first
hearing make an application to the forum to
direct the complainant to join the parties
concerned and serve upon them a copy of the
complaint. If the plea of non-joinder or
mis-joinder is not raised at the earliest
available opportunity, then, in the eyes of the
law, the plea is deemed to have been waived.
Misjoinder
of causes of action
A complainant has his own independent cause of
action and he must file a separate and
independent complaint. The joinder of more in one
complaint is permissible when the cause of action
is the same, but not when the cause of action is
similar or diverse. Example a patient after
operation of a fracture femur slips, has a fall
and the pin inserted at operation becomes loose;
the patient in such a situation cannot join the
cause of action of a negligently performed
operation and the fall since the two are not
related unless the patient can show that the fall
was as a result of the negligently performed
operation. The surgeon, in such a case can take
an objection of misjoinder of causes of action in
his written statement and then at the first
hearing make an application to the forum pointing
out the error of law and ask that the complaint
against him be dismissed or alternately to direct
the complainant to file a fresh complaint after
correcting the diverse cause of action.
Want
of pecuniary jurisdiction
Each Forum has a pecuniary jurisdiction. The
District Forum has jurisdiction to entertain
complaints where the amount of compensation
claimed for deficiency in services and the
resulting harm is up to Rs. Five lakhs. The State
Commission has jurisdiction to adjudicate
complaints where the compensation claimed is
between Rs. Five Lakhs to Rs. Twenty lakhs and
the National Commission adjudicates complaints
where the compensation claimed is more than Rs.
Twenty lakhs. If the complainant files a
complaint in the wrong forum the medical
practitioner should object to the hearing of the
complaint by that particular forum. The forum
will then direct the complainant to file the
complaint in the proper forum for adjudication.
Of course, this will only change the place of
hearing of the complaint and not its result.
Complaint
filed in wrong District Forum
The city of Mumbai has three District Forums (an
Additonal District Forum was created in June
1997). Each adjudicates complaints from a
specific territorial area. A complaint is to be
instituted in a District Forum within the local
limits of whose jurisdiction the medical
practitioner actually or voluntarily resides or
personally works for gain. Where there are more
than one medical practitioners against whom a
complaint has been filed the jurisdiction would
be where any of them voluntarily resides or
personally works for gain. In such instances the
permission of the District Forum would need to be
obtained to institute the complaint in the
correct forum or unless the medical practitioner
acquiesces. More commonly, the jurisdiction would
be the place where the cause of action (the
negligent act) has wholly or in part
arisen-namely where the medical practitioner
practices either in the clinic/nursing
home/hospital. The medical practitioner will find
it an advantage to attend the hearings personally
if the forum is closer to his residence or
clinic. He should object to the District Forum,
if the forum is hearing the complaint outside its
territorial limits. No objection as to the place
of filing a complaint shall be allowed by any
appellate or revisional forum unless such
objection was taken in the forum of the first
instance at the earliest possible opportunity and
unless there has been a consequent failure of
justice.
Res
judicata (A thing already decided)
Though Consumers Forums are not courts in the
strict sense of the term, yet the principle of
res judicata will apply based on a consideration
of public policy since it envisages that a matter
once decided cannot be re agitated. Thus if a
patient had filed a suit against a medical
practitioner in a civil court and the matter has
been decided he cannot reagitate the matter in a
Consumer Forum.
Waiver
Waiver is the abandonment of a right, and is thus
a defense against its subsequent enforcement.
Waiver may be express or, where there is
knowledge of the right, may be implied from
conduct which is inconsistent with the
continuance of the right. Waiver is an
intentional relinquishment of a known right.
There can be no waiver unless the person against
whom the waiver is claimed had full knowledge of
his right and of facts enabling him to effectual
action for the enforcement of such rights.
Example a patient who has reached an
understanding with the medical practitioner by
accepting consideration for the alleged negligent
act or omission with full knowledge of his
ability to file a complaint in a Consumer Forum
to recover compensation for alleged negligence of
the medical practitioner, will not be allowed to
agitate again in a Consumer Forum. A complainant
however, may even after acceptance of
consideration from the medical practitioner, make
a complaint and plead coercion for the acceptance
of consideration. The medical practitioner can
then raise the defense of waiver and it would be
up to the complainant to prove that coercion was
used in addition to adducing proof of negligence
alleged in the complaint.
Service
given free of charge
The Consumer Protection Act has specifically
excluded services given free of charge from the
ambit of the definition of the word
"service". However the Supreme Court in
Indian Medical Association versus V.P. Shantha
and Others has clarified what is meant by
"free service". It has been held that
"Services rendered free of charge by a
medical practitioner attached to a
hospital/nursing home or a medical officer
employed in a hospital/nursing home where such
services are rendered free of charge to
everybody, (emphasis supplied) would not be
"service" as defined in Section 2
(1)(o) of the Act. The payment of a token amount
for registration purpose only at the
hospital/nursing home would not alter the
position." Further, "Service rendered
at a non-Government hospital/nursing home where
charges are required to be paid by persons who
are in a position to pay and persons who cannot
afford to pay are rendered service free of charge
would fall within the ambit of the expression
"service" as defined in Section 2
(1)(o) of the Act irrespective of the fact that
the service is rendered free of charge to persons
who are not in a position to pay for such
services. Free service, would also be
"service" and the recipient a
"consumer" under the Act."
(emphasis supplied) Further, "Service
rendered at a Government hospital/health
center/dispensary where no charge whatsoever is
made from any person availing the services and
all patients (rich and poor) are given free
service-is outside the purview of the expression
"service" as defined in Section 2
(1)(o) of the Act. The payment of a token amount
for the purpose of registration only at the
hospital/nursing home would not alter the
position. Lastly, "Services rendered at a
Government hospital/health center/ dispensary
where services are rendered on payment of charges
and also rendered free of charge to other persons
availing of such services would fall within the
ambit of the expression "service" as
defined in Section 2 (1)(o) of the Act
irrespective of the fact that the service is
rendered free of charge to persons who do not pay
for such service. Free service would also be
"service" and the recipient a
"consumer" under the Act."
(emphasis supplied) A medical practitioner can
thus raise the defense of free service only if
the services are given free of charge to
everybody, rich and poor, in Government
hospital/health center/dispensary or
non-Government hospital/nursing home and not
where some patients pay and others are treated
free.
Service
under contract of personal services
Section 2 (1)(o) specifically excludes a contract
of personal service from becoming a cause of
action for claiming compensation due to negligent
act or omission of the medical practitioner. The
Supreme Court in Indian Medical Association
versus V.P. Shantha & Others has
distinguished between a contract of personal
service from a contract for personal services. It
has observed that "A 'contract of personal
service' has to be distinguished from a 'contract
for personal services'. In the absence of a
relationship of master and servant between the
patient and medical practitioner, the service
rendered by a medical practitioner to the patient
cannot be regarded as service rendered under a
'contract of personal service'. Such service is
service rendered under a 'contract for personal
services' and is not covered by exclusionary
clause of the definition of 'service' contained
in Section 2 (1)(o) of the Act." Further,
the Court observed "The expression 'contract
of personal service' in Section 2 (1)(o) of the
Act cannot be confined to contracts for
employment of domestic servants only and the said
expression would include the employment of a
medical officer for the purpose of rendering
medical service to the employer. The service
rendered by a medical officer to his employer
under a contract of employment would be outside
the purview of 'service' as defined in Section 2
(1)(o) of the Act. (emphasis supplied).
Medical
practitioner not negligent
A medical practitioner who is consulted by a
patient owes him certain duties. A duty of care
in deciding whether to undertake the case; a duty
of care in deciding what treatment to give, a
duty of care in his administration of that
treatment and a duty of care in answering
questions put to him by a patient in
circumstances in which he knows that the patient
intends to rely upon his answers (Halsbury's Laws
of England, Fourth Edition, Volume 30 in
paragraphs 34 and 35). This has been reiterated
by our courts in Ram Bihari Lal versus Dr. J. N.
Shrivastava (A.I.R. 1985 M.P. 150).The gravamen
in negligence action is that the medical
practitioner was found wanting in any of these
elements.
The complainant must establish in an action
against a medical practitioner that:
a duty of care was
owed to him;
the duty owed was
breached;
the breach of duty
was a proximate cause of harm to the patient;
the patient did in
fact suffer harm.
Generally, in the tort of
negligence the burden of proving each of the four
ingredients of negligence is on the complainant. The rule
is that it is for the person who suffers harm to prove
affirmatively that it was due to the negligence of the
opposite party and unless the complainant produces
reasonable evidence that the accident was caused by the
opposite parties negligence there is no case to answer
and it becomes the duty of the members of the forum to
enter judgment for the medical practitioner. However, in
a recent decision of the Supreme Court, the Court,
surprisingly awarded damages to the heir of the patient
against a homoeopathic medical practitioner for
prescribing allopathic drugs when death had been caused,
not by the drugs prescribed but to some other cause,
unrelated to the prescription [Poonam Verma v. Ashwin
Patel & Ors.,1996 (4) Supreme 328].
Contributory
negligene
This doctrine is based on the concept that if the
complainants act was the proximate cause of the
damage the complainant cannot recover damages
from the medical practitioner. The rule of law is
that if there is blame causing the accident on
both sides, however small that blame may be on
one side, the loss lies where it falls (Lord
Blackburn). Most contributory negligence will
relate to circumstances involving conduct taken
against medical advice, such as the patient
leaving the hospital, failing to return for
follow-up, a failure to follow the physician's
reasonable advice on taking medications during
treatment or not following advice after an
operation. In England The Law Reform
(Contributory Negligence ) Act 1945, by section 1
(1) provides as follows : "Where any person
suffers damage as the result partly of his own
fault and partly of the fault of any other person
or persons, a claim in respect of that damage
shall not be defeated by reason of the fault of
the person suffering the damage, but the damages
recoverable in respect thereof shall be reduced
to such extent as the court thinks just and
equitable having regard to the claimant's share
in the responsibility for the
damage---------". In America, under the
doctrine of "avoidable consequences"
the plaintiff's damages are appropriately
reduced.
The forum cannot of its own motion reduce
damages- the defense of contributory negligence
must be pleaded by the medical practitioner in
his written statement. There is no legislation in
India today on contributory negligence and no
developed case law on the subject relating to
medical malpractice litigation. It would be
interesting to see the development of this aspect
of negligent claims made by patients in India.
Example after a bone operation the patient is
advised complete rest and the patient ignoring
the advice becomes mobile and suffers harm it
would be open to the surgeon to plead
contributory negligence and then show that proper
advice of rest was given which the patient did
not follow.
Patient
consented to harm (Volenti non fit injuria)
This defense could be pleaded in the rare
situation of emergency or unusual treatment given
with consent and full knowledge of the patient of
the possible outcome of treatment. Here the
patient is fully aware of the dangers and
voluntarily assumes them. He then cannot raise
the plea of negligence if the outcome is not up
to his expectation.
Immunity
Defenses
This defense can be raised by junior medical
practitioners and those who work under the
direction and control of senior doctors.
Surprisingly, anesthesiologists have been held to
working under the direction and control of
surgeons and in complaints filed before forums
surgeons and gynecologists have been held to be
vicariously liable for anesthetic accidents. This
"Captain of the Ship" concept has been
given up in America and anesthesiologists have
been held liable on their own account in
anesthetic accidents which result in harm to the
patient. Recently, in an order dated February 15,
1996 The National Commission (per Dr. R.
Thamarajakshi) held that an anesthetist would be
independently liable for an action in negligence
and based the decision on the definition of the
term 'deficiency' in Section 2 (1)(g) of The
Consumer Protection Act. The Commission held -
"The words 'in pursuance of a contract or
otherwise' in the section makes it amply clear
that a privity of contract is not needed for a
claim to be made under CPA, so long as there is
hiring or availing of services for a
consideration. Thus the anesthetist who
participated in the process of delivery of
medical services to the beneficiary is as much
liable as the main surgeon himself if his
(anestheitist) negligence has been
established." ( emphasis supplied)
Remoteness
of damage
When some third factor has intervened between the
medical practitioners act and the harm that has
occurred the defense of remoteness of damage may
be invoked. Thus when a casualty medical officer
at a hospital failed to see and examine a patient
who complained of vomiting, the doctor was said
to be 'negligent'. Yet it was held that his
negligence had not caused the death of the
patient, which was due to arsenical poisoning
which could not have been detected and cured in
time in any event (Barnett versus Chelsea
Hospital Management Committee [1969] 1 Q.B. 428).
Similarly when a medical practitioner was charged
with negligence for not giving a tetanus
injection after a fall, when the actual cause of
death was cerebral bleeding due to the fall, it
was held that the practitioner was not negligent
since there was no link of causation between the
non-giving of tetanus injection and the cause of
death.
References
Curran WJ &
Shapiro ED : Law, Medicine and Forensic Science,
Third Edition, Little, Brown and Company, Boston
and Toronto.
King JH Jr.: The Law
of Medical Malpractice, Second Edition, West
Publishing Co., 1986.
Anesthesia: Edited by
Miller RD, Churchill Livingston, 1986
Ram Bihari Lal versus
Dr. J.N. Shrivastava: A.I.R. 1985 MP 150
Indian Medical
Association versus V.P. Shantha and Others:
Supreme Court, November 13, 1995.
Law of Torts: Edited
by Heuston RFV and Buckley RA, Twentieth Edition,
Sweet and Maxwell, 1992.
Sen Gupta SP:
Commentaries on The Consumer Protection Act,
Kamal Law House, Calcutta, 1992
Mogha PC: The Law of
Pleadings in India. Fourteenth Edition, Revised
by Goyal KN J and Mogha GC, Eastern Law House,
Calcutta, 1987.
