MEDICAL NEGLIGENCE PART-1

Distinction between ‘contract of service’ and ‘contract for service’

“No doubt that Parliamentary draftsman was aware of this well accepted distinction between “contract of service” and “contract for services” and has deliberately chosen the expression `contract of service’ instead of the expression `contract for services’, in the exclusionary part of the definition of `service’ in Section 2(1)(o). The reason being that employer hospital cannot be regarded as a service provider in respect of the services rendered by his employee in pursuance of a contract of employment. Therefore services rendered by employed doctors of the hospital are service rendered by virtue of their employment and not towards the patients coming to the hospital “.

It is service when payment made

“It is true that the relationship between a medical practitioner and a patient carries within it certain degree of mutual confidence and trust and therefore, the services rendered by the medical practitioner can be regarded as services of personal nature but since there is relationship between the doctor and the patient by virtue of accepting payment for services, doctor is a service provider to the patient.”

Consumer courts are additional remedy to consumers

“…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 [as in Chin Keow v. Govt. of Malaysia, 1967 (1) WLR 813(PC)] or use of 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 procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in 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 22 the consumer to approach the civil court for necessary relief…”

A careful reading of the aforesaid principles laid down by this Court in Indian Medical Association (supra) makes the following position clear:-

(a) There may be simple cases of medical negligence where expert evidence is not required.

(b) Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act.

(c) In complicated cases where expert evidence is required the parties have a right to go to the Civil Court.

(d) That right of the parties to go to Civil Court is preserved under Section 3 of the Act.

The decision in Indian Medical Association (supra) has been further explained and reiterated in another three judge Bench decision in Dr. J. 23  J. Merchant and others vs. Shrinath Chaturvedi reported in (2002) 6 SCC 635.

A. Medical Professional to follow three steps carefully before treating the patient–

1. Take decision carefully whether he should take the case in hands for treatment.
2. Decide what treatment he has to give to the patient.
3. Whether he has given the treatment what was chosen by him.

B. During the operation, Mop left in the body, formation of pus resulting into damage or death amounts to negligence.

C. The Apex Court had an occasion to go into this question in the case of  Laxman Balkrishan Joshi v. Dr. Trimbak Bapu Godbole and Anr., AIR 1969 SC 128. In this context, with reference to the duties of the doctors to the patient this Court, in appeal, observed as follows:

“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.”

D. Duty of care in deciding what treatment is to be given
National Commission made some observations in deciding what treatment is to be given in the case of Tarun Thakore vs. Dr. Noshir M. Shroff (O.P. No. 215/2000 dated 24.9.2002) wherein it is specified about the duties of doctor towards his patient. From those observations & it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment. A breach of any of those duties may lead to an action for negligence by the patient.

Giving medicine without knowledge i.e. homeopathic doctor, prescribing allopathic medicine amounts to medical negligence.

Harjot Ahluwalia V Spring meadows 1998 SC

A. ‘It is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, the hospital may be liable in civil law but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam’s test’

B. “cases where nurse is not trained ,case left to junior doctors without explaining case history, wrong medicine or wrong injection given causing damage to the patient ,doctors/hospital/nursing home negligent for medical treatment”

C. “Doctors are not negligent if out of five methods established in the medical science, doctors adopt one method for treatment which does not bring expected results or treatment does not prove to be very effective”

D. It is expected from a doctor to have a reasonable skill and knowledge and reasonable degree of care.

E. Doctor is not negligent unless he has done something which he ought not have done  OR  has not done something which he should have done.

Doctor negligently operated only the right fallopian tube and had left the left fallopian tube untouched. The patient was informed that the operation was successful and was assured that she would not conceive a child in future. This negligence when results into birth of an unwanted child to a woman, was considered a case of medical negligence.

Charan Singh v. Healing Touch Hospital and Others [(2000) 7 SCC 668]

Charan Singh v. Healing Touch Hospital and Others [(2000) 7 SCC 668] was also referred in which court had observed that complainant cannot be left unheard after waiting for six long years and advised to take necessary steps for speedy disposal of complaints-

“The Consumer Forums must take expeditious steps to deal with the complaints filed before them and not keep them pending for years. It would defeat the object of the Act, if summary trials are not disposed of expeditiously by the forums at the District, State or National levels. Steps in this direction are required to be taken in the right earnest”.