MEDICAL NEGLIGENC (PART-2)

Supreme Court again set the controversy at rest about the jurisdiction of consumer courts in medical negligence matters Court in this case also relying upon Shantha case, held that delay in disposal of the complaint would not be a ground for rejecting the complaint or directing the complainant to approach the Civil Court. and HELD:

a) Steps in providing proper infrastructure

“However, apart from the contemplated legislative action, it is expected that the Government would also take appropriate steps in providing proper infrastructure so that the Act is properly implemented and the legislative purpose of providing alternative, efficacious, speedy, inexpensive remedy to the consumers is not defeated or frustrated.”

b) Complicated question of law not involved in Medical cases

Supreme Court observed that in the present case, the complainant’s case is based upon the negligence of the Doctors in giving treatment to the deceased. Whether there was negligence or not on the part of the concerned Doctors would depend upon facts alleged to and in such a case matter cannot be said complicated

c) Examination of expert opinion and cross-examination –

“It is true that it is the discretion of the Commission to examine the experts if required in appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. But this Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. Only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits. It also empowers such Forums to issue notice to any Commission for examination of any witness.

d) Examination of Witness-

It also provides that witnesses could be examined by the Court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephone conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross- examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time”

e) Regarding knowledge of medical field to the judges of the commission

It was further clarified that Commission is also empowered to call for expert opinion, appoint expert local commissioner to assist the court, cross- examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time” In case where stakes are very high and still party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephone conference and at the initial stage this cost should be borne by the person who claims such video conference.

Further, if this argument is entertained ,it will be impossible situation to run any court in the country because one judge of the court can be at the most know one subject. When civil courts can handle one and all type of cases effectively with help of experts, why cannot consumer courts do so with same powers and facilities?

Finally Court held in clear terms that consumer courts are very well competent to deal with medical issues like other matters

 Smt. Savita Garg vs The Director, National Heart Appeal (civil) 4024 of 2003 dated 12/10/2004: Author A Mathur Bench: B.N.Agrawal, A.K.Mathur

An error of non-joinder of necessary the party cannot result in dismissal of the original petition for non-joinder of party.

“The National Commission shall, in the disposal of any complaints or any proceedings before it, have the power of a civil court and can direct the parties to disclose the name and other particulars of treating doctor if not known to the complainant So far as the law with regard to the non-joinder of necessary party under Code of Civil Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC no suit shall fail because of mis-joinder or non-joinder of parties. Even if after the direction given by the Commission the concerned doctor and the nursing staff who were looking after the deceased have not been impleaded as opposite parties, it cannot result in dismissal of the original petition as a whole.”

Since the burden is on the hospital to prove not guilty, they can discharge the same by producing that doctor who treated the patient in defense to substantiate their allegation that there was no negligence

The hospitals are institutions, people expect better and efficient service, 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 and by not imp leading a particular doctor will not absolve the hospital of their responsibilities.

“Merely because a woman having undergone a sterilization operation becoming pregnant and delivering a child thereafter, the operating surgeon or his employer cannot be held liable on account of the unwarranted pregnancy or unwanted child”.

The causes of failure may be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part the surgeon. Authoritative text books on gynecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of several recognized and accepted ones.  Failure due to natural causes, no method of sterilization being foolproof or guaranteeing 100% success, would not provide any ground for a claim of compensation.

Chief Justice Lahoti, speaking for the unanimous three-Judge Bench in Mathew (supra), made a clear distinction between degree of negligence in criminal law and civil law where normally liability for 15 damages is fastened
A. ‘In order to pronounce on criminal negligence it has to be established that the rashness was of such a degree as to amount to taking a hazard in which injury was most likely imminent.”

B. “What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.”

C. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

D. “The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”

E. “Act of negligence to be viewed as criminal negligence inviting criminal prosecution would have to be of a gross negligence and must fulfill two tests:

I)Doctor did not possess the necessary skill required or if possessed the required skill, did not exercise with reasonable competence

II)The act committed ought to be such that no medical professional in ordinary sense would have committed.

III) Test of Medical negligence in criminal case and under consumer protection act are to be judged on different parameters

F. “Every professional including advocates, charted accountants, Doctors etc who provides professional service. by receiving payment is a service provider under Consumer Protection Act”

G. “ In appropriate case, expert opinion may be obtained and the matter is left to the discretion of Consumer Forums and Commissions”

In paragraph 106 of its judgment, D’souza (supra) equated a criminal complaint against a doctor or hospital with a complaint against a doctor before the Consumer Fora and gave the following directions covering cases before both. Those directions are set out below:-

A. “We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Fora (whether District, State or National) or by the criminal court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or the criminal court should first refer the matter to a competent doctor or committee of doctors, specialised in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the doctor/hospital concerned. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent”.

B. “We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew case, otherwise the policemen will themselves have to face legal action.”