Legalities — Medico-Legal Terms & Frameworks

Medico-legal problems

Medical practitioners in India today are wary of the various Consumer Courts set up by the Government of India, and the legislation that brought them under Consumer Court purview. Rapid advances in medical science, new treatment and diagnostic techniques, and new diseases linked to pollution and environmental imbalance have posed great challenges — compounded by growing consumer-rights awareness. Medico-legal problems are so technical that they can be dealt with or understood by medico-legal experts only.

Litigation of doctors: litigation against doctors and medical establishments is not new, but has gained prominence. After the landmark Supreme Court judgment in IMA vs. V.P. Shanta (1995), the number of cases increased rapidly, with courts awarding substantial compensation. Reasons include increasing consumer-rights awareness, inter-personal (doctor-patient) friction, inter-professional rivalry, and a materialistic society with vested interests.

Medical negligence is the breach of the duty owed by a doctor towards a patient, to exercise a reasonable degree of care and skill, resulting in physical, mental or financial disability or loss — a civil or criminal mistake arising from the doctor-patient contract.

Victims of the complaint can include all medical practitioners in India, private or trust hospitals, nursing homes and polyclinics, and all laboratories, diagnostic centres, blood banks and x-ray clinics.

Consumer Protection Act, 1986

Since medical & paramedical services are brought under the Consumer Protection Act (CPA), doctors and medical establishments must know its provisions and implications. Salient features:

• The procedure followed is brief and easy, with practically no court fee (only a nominal filing deposit).
• Most evidence is based on affidavits.
• Court jurisdiction depends on the compensation claimed: up to Rs. 1 crore — District Commission; above Rs. 1 crore up to Rs. 10 crore — State Commission; above Rs. 10 crore — National Commission.
• Speedy and cheap redressal of disputes, with at least one female jury member.
• Appointing a lawyer is not essential — the complainant or an authorised representative can defend the case in person.
• Free medical services are exempted under the CPA; consumer societies can also become the complainant instead of the patient.

Enacted on 24 December 1986, the CPA established Consumer Councils and other authorities for settlement of consumer disputes, seeking to protect consumers' rights to safety, information, being heard, redressal and consumer education. It extends across India except Jammu & Kashmir.

"A doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art, and merely because there is a body of opinion that takes a contrary view will not make him liable for negligence." — Vinita Ashok vs. Lakshmi Hospital, 2001 8 SCC 731

Note that medical services are subject to the CPA even where provided free in an otherwise-paid private set-up — if even one patient is charged while 999 are treated free, the CPA applies (Supreme Court, IMA vs. V.P. Shanta, Nov. 1995). Only free camps etc. are exempt; a nominal registration fee does not count as a charge.

Consumer Disputes Redressal Agencies

Redressal forums exist at three levels — the District Forum and State Commission (established by State Governments) and the National Commission (established by the Central Government).

Appeals against a District Forum order go to the State Commission within 30 days; against a State Commission order, to the National Commission within 30 days; against a National Commission order, to the Supreme Court within 30 days (extensions possible for sufficient cause). A complaint must generally be filed within 2 years of the cause of action. Frivolous or vexatious complaints can be dismissed with costs up to Rs. 10,000, and non-compliance with an order can attract imprisonment of one month to three years, or a fine of Rs. 2,000 to Rs. 10,000, or both.

Issues before the medical profession

The Consumer Protection Act was applied to the medical profession because the existing Law of Tort and Indian Penal Code had well-documented problems — delay, high cost of litigation relative to damages recovered, limited court access, and the difficulty of proving both negligence and causation. A "consumer" under the Act includes a patient who pays for services, anyone who pays on the patient's behalf, and their legal heirs, spouse, parents and children. Courts have consistently held that medical services rendered for payment are a "Contract for Service" (not a "Contract of Personal Service" / master-servant relationship), and are therefore covered by the CPA.

Criminal liability & the Indian Penal Code

Sections 52, 80, 81, 83, 88, 90, 91, 92, 304-A, 337 and 338 of the IPC, 1860 contain the core law on medical malpractice in India. Criminal liability requires more than a mere mistake of judgment — it requires gross lack of competency, gross inattention or wanton indifference to a patient's safety. Where a patient dies under treatment, a doctor is typically charged under Section 304-A (bailable); if alive, under Sections 337/338.

Note on 304 vs 304-A: police often register professional-negligence deaths under Section 304 (non-bailable), causing hardship; the Bombay High Court held (Dr. Mrs. Mridula S. Deshpande vs. State of Maharashtra, Crl. Rev. App. 282/1996, 28-11-1998) that such cases should be registered under 304-A (bailable), since the act is never done with intent to cause death.

Important definitions of crime / offence

• Summons — the Court's process asking the opposite party to appear and answer allegations.
• Warrant — an order directing a Police Officer to arrest, seize, search or otherwise act in aid of justice.
• Cognizable / non-cognizable offences — whether a Police Officer may arrest without a warrant (Schedule I, Cr.P.C.).
• Bailable / non-bailable offences — whether bail is a matter of right, or requires the court's discretion for serious offences.
• Presumption of innocence — guilt must be proved; the onus is on the prosecution.
• Res judicata — a matter already decided between two parties cannot be tried again between them.
• Res ipsa loquitur — "the thing speaks for itself"; gross negligence so obvious that no separate proof is required (e.g., a surgical instrument left inside a patient).

Consent in criminal law (Section 90, IPC)

A valid consent must be given voluntarily by an adult of sound mind, with reasonable understanding and without misrepresentation — preferably informed, in writing, and witnessed. It remains an offence to cause injury to a person even with their consent to suffer death or grievous hurt, a point especially relevant in organ transplantation, where the consent of heirs is required absent an expressed will by the deceased. A person can be held liable for an intentional/willful wrong, a negligent act (failing to take proper care and precaution), or a wrong of strict liability under a special statute (e.g. the Transplantation of Human Organs Act, 1994).

PNDT Act, 1994

The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 was enacted to prohibit sex selection before or after conception, and to regulate pre-natal diagnostic techniques so they are used only to detect genetic, metabolic, chromosomal or congenital abnormalities — not for sex determination. It applies across India except Jammu & Kashmir.

• No Genetic Counselling Centre, Laboratory or Clinic can operate, and no medical geneticist, gynaecologist, paediatrician or registered medical practitioner can conduct pre-natal diagnostic techniques, unless registered under the Act.
• Pre-natal diagnostic procedures require the pregnant woman's written, informed consent, and communicating the sex of the foetus to anyone is prohibited.
• Determining or aiding in determining foetal sex, by any technique including ultrasonography, is prohibited outright.
• Contravention (e.g. prohibited advertisement) is punishable with imprisonment up to 3 years and a fine up to Rs. 10,000; practitioners face imprisonment up to 3 years (5 years on repeat conviction) and reporting to the State Medical Council for removal from the register.
• Every offence under this Act is cognizable, non-bailable and non-compoundable, triable only by a Metropolitan or first-class Judicial Magistrate.