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Q. Doctor and Patient relationship is based on Implied Contract. Explain. Is the law of negligence applicable to Doctors? How are the duties of a doctor controlled by Consumer Protection Act, 1986? Discuss with the help of decided cases.  / Explain the obligations of a doctor towards a patient. What should be the standard of care? What are the recent trends in Consumer Protection law with reference to Liability of Doctors. Describe the criminal liability arising out of professional negligence.

The profession of a doctor is considered to be the most pious profession and a doctor is respected in the society as no other professional. A doctor commands immense trust of his patients because of his ability to cure the patients. Patients literally put their lives in the hands of a doctor. It is imperative for a doctor that when he holds such a huge influence over his patient, he must not let him down and give his patient due care and attention. It is the responsibility of the doctor to follow standard procedures and precautions while treating his patient. Negligence on the part of a doctor can cause severe hardship for the patient and can even lead to the patients death.  

Negligence is a subject of Torts as well as Crime and the law of negligence is certainly applicable to doctors. In fact, for a long time, until 1992 (when due to a judgment by SC, medical profession was brought within the ambit of Consumer Protection laws), the law of negligence was the only remedy for compensation against negligence by a medical professional.  A doctor is liable to Civil as well as Criminal Negligence depending on the situation.

Implied Contract between a Doctor and a Patient
Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Contract may be implied or express.  An implied contract is one inferred from conduct of parties and arises where one person renders services under circumstances indicating that he expects to be paid therefor, and the other person knowing such circumstances, avails himself of benefit of those services. An express contract is an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally (oral agreement ) or in writing (written agreement).

The doctor-patient contract is almost always of the implied type, except where a written informed consent is obtained because no formal contract is usually written when a patient visits a doctor. Thus, it can be said that the relationship between a doctor and his patient is of an implied contract. Although there is no written or oral explicit contract between them, it is implied that the doctor is expected to cure the patient and the patient pays fees in consideration. Thus, persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of a medical professional. In case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole, AIR 1969, the Supreme Court held that a doctor who holds himself 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 take the case, a duty of care to decide the treatment, and a duty of care while administering the treatment. A breach of these duties gives a right of action of negligence to the patient.

When a doctor accepts a patient, he has certain responsibilities towards that patient. It is an implied contract. A doctor-patient contract requires that the doctor must treat such a person with reasonable care, reasonable skill. He must not undertake any procedure/ treatment beyond his skill.

As held in Dr P Luthra vs Iftekhar, while a doctor does not guarantee that he will cure the patient, he is expected to provide a treatment that is considered apt by medical professionals in similar situation. If there are multiple opinions about the treatment in given situation, and all are accepted by various groups of medical professionals, a doctor cannot be said to have erred in following one of such opinions.

Implied contract is not established when :
(i) the doctor renders first-aid in an emergency ;
(ii) he makes a pre-employment medical examination for a prospective employer;
(iii) he performs an examination for life insurance purpose ;
(iv) he is appointed by the trial court to examine the accused for any reason ; and
(v) when he makes an examination at the request of an attorney for last suit purposes.

Reasonable Care
A doctor must use clean and proper instruments, and provide his patients with proper and suitable medicines if he dispenses them himself. If not, he should write the prescriptions legibly,using standard abbreviations and mention instructions for the pharmacist in full. He should give full directions to his patients as regards administration of drugs and other measures,preferably in local written language. He must suggest / insist on consultation with a specialist in the following circumstances :
1. When the case is complicated.
2. When the question arises about performing an operation which may be dangerous to life or requiring amputation.
3. Operating on a case in which there has been a criminal assault.
4. Performing an operation which may affect the intellectual or reproductive functions of a patient.
5. In cases where there is suspicion of poisoning or other criminal act.
6. When desired by the patient / attendants.
7. When it appears that the quality of medical service is required to be enhanced.
8. When there is no one from whom informed consent can be obtained.

Reasonable Skill
The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and the patient when the patient is told in effect : "Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing."

Not to undertake any procedure beyond his skill - This depends upon his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure / treating a complicated case. To quote an example, a doctor who is not sufficiently trained or qualified should not administer anesthesia.

Professional Secrets
A professional secret is one which a doctor comes to learn in confidence from his patients, on examination, investigations or which is noticed in the ordinary privacies of domestic life. A doctor is under a moral and legal obligation not to divulge any such secret except under certain circumstances. This is known as privileged communication which is defined as a communication made by a doctor to a proper authority who has corresponding legal, social and moral duties to protect the public. In must be bona fide and without malice, e.g., as a witness in a court of law; warning partners or spouses of AIDS patients and those found infected with HIV; informing public health authorities of food poisoning from a hotel etc; assisting apprehension of a person who has committed a serious crime ;informing law enforcers about medico-legal cases, etc.

Civil Negligence
Since it is established that there exists an implied contract between a doctor and a patient, a medical practioner is obligated to fulfill his part of the contract. A question of civil negligence arises when a patient dies or is injured while in care of a doctor and the patient or his representative sue the doctor for compensation. In such cases, it is up to the plaintiff to prove that -
1. The defendant owed him a duty to a particular standard of conduct.
2. The defendant was derelict and failed to perform that duty.
3. The plaintiff suffered actual damage.
4. The conduct of the defendant was the direct or proximate cause of the damage.

In certain cases,  the principle of Res ipsa loquitor i.e. situation speaks for  itself, applies. For example, in several cases that involved articles left in the body of the patient after a surgery, it has been held that it cannot happen without the doctor being negligent. In such cases, it is not necessary for the plaintiff to prove the negligence of the doctor. The applicability of this principle rests on three conditions -
1. The situation must be such that it cannot happen without negligence.
2. The plaintiff must not have added to his own injury.
3. The defendant must have been in total and exclusive control of the situation.

Criminal Negligence
The question of criminal negligence arises in case death or serious injury to a patient caused by criminal negligence. In case of a death, a doctor may be charged under Section 304-A of IPC, which makes it an offence to cause death of  any person by doing any rash or negligent act. In case of serious injury, he may also be charged under Section 336 - Act  endangering life or personal safety of others, Section 337 - Causing  hurt by act endangering life or personal safety of others
and Section 338 - Causing grievous hurt by act endangering life or personal safety of others.

For the above to happen, the degree of negligence has to be so grave as to go beyond compensation and must be penalized because it causes harm not just to the victim but to the society as well. Conduct that disregards the life and safety of the patient deserves punishment.

SC, in the case of Dr. Suresh Gupta, Aug 2004, gave guidelines on when a doctor may be held as criminally liable. It held that the standard of negligence that had to be proved to fix a doctor’s or surgeon’s criminal liability was set at “gross negligence” or “recklessness.”  It distinguished between an error of judgment and culpable negligence. It held that criminal prosecution of doctors without adequate medical opinion pointing to their guilt would do great disservice to the community. A doctor cannot be tried for culpable or criminal negligence in all cases of medical mishaps or misfortunes. A doctor may be liable in a civil case for negligence but mere carelessness or want of due attention and skill cannot be described as so reckless or grossly negligent as to make her/ him criminally liable. The courts held that this distinction was necessary so that the hazards of medical professionals being exposed to civil liability may not unreasonably extend to criminal liability and expose them to the risk of imprisonment for alleged criminal negligence.

Hence the complaint against the doctor must show negligence or rashness of such a degree as to indicate a mental state that can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.

However, on September 9, 2004, Justices Arijit Pasayat and CK Thakker referred the question of medical negligence to a larger Bench of the Supreme Court. They observed that words such as “gross”, “reckless”, “competence”, and “indifference” did not occur anywhere in the definition of “negligence” under Section 304A of the Indian Penal Code and hence they could not agree with the judgement delivered in the case of Dr Suresh Gupta.

The issue was decided in the Supreme Court in the case of Jacob Mathew vs State of Punjab AIR 2004. In this case, the court directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressure in performing their duties. It ruled that until the government framed such guidelines, the following guidelines would prevail:
A private complaint of rashness or negligence against a doctor may not be entertained without prima facie evidence in the form of a credible opinion of another competent doctor supporting the charge. In addition, the investigating officer should give an independent opinion, preferably of a government doctor. Finally, a doctor may be arrested only if the investigating officer believes that she/ he would not be available for prosecution unless arrested.

Thus, the negligence is so great as to go beyond matter of mere compensation. Not only has the doctor made a wrong diagnosis and treatment, but also that he has shown such gross ignorance, gross carelessness or gross neglect for the life and safety of the patient that a criminal charge is brought against him. For this he may be prosecuted in a criminal court for having caused injury to or the death of his patient by a rash and negligent act amounting to culpable homicide under Section 304-A of the Indian Penal Code. Some examples are as follows:

1. Injecting anesthetic in fatal dosage or in wrong tissues.
2. Amputation of wrong finger, operation on wrong limb,removal of wrong organ, or errors in ligation of ducts.
3. Operation on wrong patient.
4. Leaving instruments or sponges inside the part of body operated upon.
5. Leaving tourniquets too long, resulting in gangrene.
6. Transfusing wrong blood.
7. Applying too tight plaster or splints which may cause gangrene or paralysis.
8. Performing a criminal abortion.

Patient as a Consumer

In the past two decades, medical field has seen tremendous rise in terms of doctors, nursing homes, hospitals, and also the patients because of population explosion. With the rise of commercialization of medical services, the society has witnessed a sharp rise in cases of negligence by medical professionals.  Although medical professionals are governed by Medical Councils, who have the power to suspend or revoke the license of a medical practioner upon such negligence, the medical councils do not have any power to provide any compensation to the victim of a doctor's negligence.  Since negligence is generally covered under Law of Torts, this necessitated the aggrieved parties to approach Civil Courts for damages. This is a time consuming and expensive process, which very few had the ability to avail.  Thus, there was an urgent need to curb the irresponsible attitude of the medical professionals as well as to provide faster relief to victims of medical negligence.

Consumer Protection Act, 1986, was a landmark act that gave power to the consumers in cases of being cheated by businesses providing any kind of services. However, this act did not explicitly include Medical services. It must be noted that a doctor does not perform out of altruism. He charges fees for his services and in this respect, a patient is a consumer of his services. This is the basic premise which was observed by the Supreme Court of India in the case of Indian Medical Association vs V P Shantha, AIR 1995.  In this case, SC held that doctors, hospitals, and nursing homes who render service as medical practitioner are accountable for any act of medical neglect and they can be sued for compensation under Consumer Protection Act, 1986. As a result of this judgment, medical profession was brought under the Section 2(1) (o) of CPA, 1986. It has included the following categories of doctors/hospitals under this Section:
  1. All medical/dental practitioners doing independent medical/dental practice unless rendering only free service.
  2. Private hospitals charging all patients.
  3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.
  4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.
It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to all patients. Further, this judgment concedes that the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the complainant can be asked to approach the civil courts. Also, this judgment says that the deficiency in service means only negligence in a medical negligence case and it would be determined under CPA by applying the same test as is applied in an action for damages for negligence in a civil court. As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and the independent medical / dental practitioners except primary health centers, birth control measures, anti malaria drive and other such welfare activities can be sued under the CPA.

Duties/Obligations of a Doctor

Duties and obligations of doctors are enlisted in ordinary laws of the land and various Codes of Medical Ethics and Declarations - Indian and International, which are :
(i) Code of Medical Ethics of Medical Council of India ;
(ii) Hippocratic Oath ;
(iii) Declaration of Geneva ;
(iv) Declaration of Helsinki;
(v) International Code of Medical Ethics ;
(vi) Government of India Guidelines for Sterilization.

On the basis of these various Codes of Ethics and Declarations, the duties can be summarized as under -

1. Duties to Patient.
2. Duties to Public.
3. Duties towards Law Enforcers.
4. Duties not to violate Professional Ethics.
5. Duties not to do anything illegal or hide illegal acts.
6. Duties to each other.

1. Duties to Patient - These are : Standard Care, Providing Information to the Patient /Attendant , Consent for Treatment, and Emergency Care. The first duty of a doctor towards his patient is to provide the patient with due skill, care, and attention.  In the case of the State of Haryana vs Smt Santra, AIR 2000, the Supreme Court held that every doctor “has a duty to act with a reasonable degree of care and skill”. While it is not possible to lay down precise standards of medical skill and care, it can be reasonably said that the skill and care that is provided by an average doctor is what any doctor can be expected to provide to his patients.

(A) Standard Care - This means application of the principles of standard care which an average person takes while doing similar job in a similar situation :

1. Due care and diligence of a prudent Doctor.
2. Standard, suitable, equipment in good repair.
3. Standard assistants : Where a senior doctor delegates a task to a junior doctor or paramedical staff, he must assure himself that the assistant is sufficiently competent and experienced to do the job, and fulfills the prescribed qualifications.
4. Non-standard drug is a poison by definition.
5. Standard procedure and indicated treatment and surgery.
6. Standard premises, e.g. Nursing Home, Hospital , must comply with all laws applicable as imposed by the State and these must be registered wherever required.
7. Standard proper reference to appropriate specialist.
8. Standard proper record keeping for treatment given,surgery done, X-ray and pathological reports.
9. Standard of not to experiment with patient ( See Declaration of Helsinki in Appendix IV).
10. Anticipation of standard risks of complications and preventive actions taken in time.
11. Observe punctuality in consultation.

(B) Duty to provide information to patient / attendant

1. Regarding necessity of treatment.
2. Alternative modalities of treatment.
3. Risks of pursuing the treatment, including inherent complications of drugs, investigations, procedure,surgery etc.
4. Regarding duration of treatment.
5. Regarding prognosis. Do not exaggerate nor minimize the gravity of patient’s condition.
6. Regarding expenses and break-up thereof.

(C) Consent for treatment - Must obtain consent before any operation.

(D) Emergency Care - A doctor is bound to provide emergency care on humanitarian grounds, unless he is assured that others are willing and able to give such care. It may be noted that prior consent is not necessary for giving emergency / first-aid treatment. In emergency medico-legal cases, condition of first being seen by medical jurist is not essential.

(E) Duty to warn -  The doctor must warn the patient of any known or possible side effects of a drug, device, or operation. Failure to do so renders the doctor liable for the harm suffered by the patient.

2. Duties to the Public -

1. Health Education
2. Medical help when natural calamities like drought,flood, earth-quakes, etc. occur.
3. Medical help during train accidents.
4. Compulsory notification of births, deaths, infectious diseases, food poisoning etc.
5. To help victims of house collapse, road accidents, fire,etc.

3. Duty towards Law Enforcers, Police, Courts, etc.

1. To inform the police all cases of poisoning, burns,injury, illegal abortion, suicide, homicide,manslaughter, grievous hurt and its natural complications like tetanus, gas-gangrene , etc. This includes vehicular accidents, fractures, etc.
2. To call a Magistrate for recording dying declaration.
3. To inform about bride burning and battered child cases.

4. Duty not to violate Professional Ethics

1. Not to associate with unregistered medical practitioner and not allow him to practice what he is not qualified for.
2. Not to indulge in self-advertisement except such as is expressly authorized by the M.C.I. Code of Medical Ethics.
3. Not to issue false certificates and bills.
4. Not to run a medical store / open shop for sale of medical and surgical instruments.
5. Not to write secret formulations.
6. Not to refuse professional service on grounds of religion, nationality, race,party politics or social status.
7. Not to attend patient when under the effect of alcohol
8. No fee sharing ( Dichotomy).
9. Not to talk loose about colleagues.
10. Information given by patient /attendant to be kept as secret. Not to be divulged to employer, insurance company, parents of major son/daughter without consent of patient. Even in court this information is given only if ordered by the Court.
11. Recovering any money ( in cash or kind) in connection with services rendered to a patient other than a proper professional fee, even with the knowledge of the patient.

5. Duty not to do anything illegal or hide illegal acts

1. Perform illegal abortions / sterilization’s
2. Issue death certificates where cause of death is not known.
3. Not informing police a case of accident, burns,poisoning, suicide, grievous hurt, gas gangrene.
4. Not calling Magistrate for recording dying declaration.
5. Unauthorized, unnecessary , uninformed treatment and surgery or procedure.
6. Sex determination (in certain States).

6. Duty to other Doctors

1. A doctor must give to his teachers respect and gratitude.
2. A doctor ought to behave to his colleagues as he would like them to behave to him.
3. A doctor must not entice patients from his colleagues,even when he has been called as a specialist.
4. When a patient is referred to another doctor, a statement of the case should be given. The second doctor should communicate his opinion in writing /over telephone/fax direct to the first doctor.
5. Differences of opinion should not be divulged in public.
6. A doctor must observe the principles enunciated in ‘The Declaration of Geneva’ approved by the World Medical Association.

Duties of the Patient / Attendant
When a patient ( consumer ) hires or avails of services of a doctor for treatment, he has the following duties :-

1. He must disclose all information that may be necessary for proper diagnosis and treatment.
2. He must co-operate with the doctor for any relevant investigations required to diagnose and treat him.
3. He must carry out all the instructions as regards drugs,food, rest, exercise or any other relevant /necessary aspect.
4. In the case of a private medical practitioner he must compensate the doctor in terms of money and money alone. Moral considerations apart, failure on the part of the patient / attendant to do his duty :
(a) will enable the doctor to terminate patient -physician contract and that would free him from his legal responsibilities,
(b) will be construed as contributory negligence, and weaken the case of the patient for compensation.

Q. What defenses are available to a doctor in a suit for negligence under tort?

That the treatment that he gave was reasonably accepted among other professionals in similar situations.
That there was no negligence on his part.
That the patient added to his own injury.
That the patient did not follow his directions properly.
That the patient was not exclusively in his care.

The most important thing is to maintain proper record of the patient that can prove that appropriate medical care and treatment was give. The following information may be maintained in this regard -

  1. In complicated cases record precisely history of illness and substantial physical findings about the patient on your prescription.
  2. If the patient/attendants are erring on any count ( history not reliable, refusing investigations, refusing admission ) make a note of it or seek written refusal preferably in local language with proper witness.
  3. Mention the condition of patient in specific /objective terms. Avoid vague / non-specific terminology.
  4. Record history of drug allergy.
  5. If a drug is a poison ( e.g., certain local applications ), warn in writing.
  6. Mention additional precautions e.g., food, rest, avoidance of certain drugs, allergens, alcohol, smoking etc. if indicated.
  7. Mention whether prognosis explained. If necessary take a signature of patient /attendant, after explaining the prognosis in written local language.
  8. In case of any deviation from standard care, mention reasons .
  9. Specifically mention review, SOS/or follow-up schedule.
  10. Mention if patient /attendant are/is under effect of alcohol/drugs.
  11. In case a particular drug/equipment is not available, make a note.
  12. Mention where the patient should contact in case of your non-availability /emergency.
  13. Keep updating your knowledge. Read again what you think you already know. You will be in for surprises.
  14. Routinely advise X-rays in injury to bones /joints.

Q. What are the difficulties encountered in collecting evidence in such cases and how can they be overcome?