Legal Recourse in Cases of Medical Negligence

Not defined in any Indian Act or Statute per se, medical negligence, in common parlance, is negligence by act or omission by a health care provider in which the treatment provided to a patient falls below the accepted standard of practice in the medical community and causes injury or death to the patient.
Since medical profession is the noblest of all professions, a medical practitioner requires a certain degree of skills and knowledge, due to which the standard of care is generally high. They can only be held liable, when the standard of care is reasonably less than the standard of care that is generally exercised by a competent practitioner.

Provided hereunder is an analysis of medical negligence in India and the legal recourse, both civil and criminal in nature, which can be sought in such cases.

The essential elements in any kind of negligence are:

1. Legal duty of care towards the plaintiff;
2. Breach of that duty;
3. Consequential damage caused to the plaintiff.

Doctors are said to be in a fiduciary relationship with their patients and it is on the basis of this relationship that the doctors can also be accused of negligence, which has now come to be known as medical negligence.

MEDICAL NEGLIGENCE: AS A TORT AND AS AN OFFENCE

The landmark case of Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], provides answers to the two most important issues concerning medical negligence:

1. Whether there is a distinction between civil and criminal laws of negligence?
2. Whether a different standard is applicable for recording a finding of negligence when a medical practitioner in particular is to be held guilty of negligence?

The Apex Court held that it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea (the guilty mind) cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.

Therefore, it is only when a person fails to give any thought to the possibility of there being any such risk, and nevertheless goes on to do it would be considered gross negligence. In other words, it is a complete disregard for possible consequences.
It was also held that the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

CIVIL RECOURSE:

Civil suits in case of medical negligence can be filed for damages in torts (civil wrong) in the Consumer Disputes Redressal Forums established under the Consumer Protection Act, 1986 (the Act).

Ques: Whether services rendered by a medical practitioner falls within the ambit of service as defined in section 2(1) (o) of the Act?

The Act defines service as following:
Service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

The Apex Court in Indian Medical Association v. V.P. Shantha [AIR 1996 SC 550], held that the service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of service as defined in section 2(1) (o) of the Act. Distinguishing between contract of personal service and contract for personal service, the Court held that in 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 and are contracts for personal service and therefore is not covered by exclusionary clause of the definition of service contained in the Act.

The procedure for approaching Consumer Dispute Redressal Forum is mentioned as under:

1. Complaints may be made to:
   District Forums in case of complaints where value of goods or services rendered along with the compensation, if any, claimed does not exceed Rs. 20 lakhs;
   State Commission where value of goods or services rendered along with the compensation, if any, claimed is more than Rs. 20 lakhs but does not exceed Rs. 1 crore, and;
   National Commission where value of goods or services rendered along with the compensation, if any, claimed exceeds Rs. 1 crore.
2. The complaint to these statutory bodies has to be made within 2 years from the date of cause of action.
3. According to section 15 (Appeal) of the Act, any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order. However, State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
4. As per provisions laid down in section 19 (Appeals) of the Act, any person aggrieved by an order made by the State Commission in exercise of its powers may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed. However, the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
5. Further appeal may be made to the Supreme Court within a period of 30 days from the date of order passed by the National Commission.

CRIMINAL RECOURSE:

Any act or omission thereof, becomes an offence only when the State considers it so. Because of the reasons abovementioned, the act done by medical practitioners in course of their duties, is to an extent protected by the Indian Penal Code, 1860 (IPC) under Chapter IV (General Exceptions) in its sections 80 (accident in doing a lawful act), 81 (act likely to cause harm but done without criminal intent), 88 (act not intended to cause death, done by consent in good faith for a person’s benefit), and 92 (acts done in good faith for benefit of a person without consent). The interpretation for above is that if established that the act or omission thereof is falls in the ambit of any of the above sections, then the same is not an offence under IPC.
This does not mean that medical practitioners can never be held criminally liable for any act of negligence committed by them. Grave medical negligence is not protected under IPC and the medical practitioner can be held liable for an offence if his/her act or omission thereof falls under sections 304A (death by negligence), 337 (causing hurt by act endangering life or personal safety of others) and 338 (causing grievous hurt by act endangering life or personal safety of others) of IPC.

The complaint mechanism in cases of criminal offence involves registering a First Information Report in a Police Station and then the Courts taking cognizance of the same. In Lalita Kumari v. Govt. of Uttar Pradesh [2013 (13) SCALE 559], it was held that under section 154 of the Code of Criminal Procedure, 1973, a Police Officer cannot refuse to register a First Information Report in cases concerning cognizable offence. The said judgement however provided exception, inter alia, in cases of medical negligence.

The judgement quoted Jacob Mathew Case and given below are the points for consideration while making a complaint/FIR accusing a medical practitioner of criminal negligence:

1. A professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
2. No private complaint will be entertained against any medical practitioner for prosecution against offences of which criminal rashness or negligence is an ingredient, unless the complainant has produced prima facie evidence before the Court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of accused doctor.
3. FIR can be refused to register till the time a preliminary enquiry is duly conducted and some credible evidence is found for such cases.
4. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
5. The famous Bolam Test as laid down in Bolam v. Friern Hospital Management Committee, [(1957) 1 W.L.R. 582, 586] would be applied while deciding the culpability of a medical practitioner:
   “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

SOURCES:

Case Material on Law of Crimes – II, Faculty of Law, University of Delhi;
Case Material on Law of Torts, Faculty of Law, University of Delhi;
The Consumer Protection Act, 1986;
The Indian Penal Code, 1860;
www.indiankanoon.org

Supreme Court on General Principles of Contract

Sir William Anson, a noted British jurist, defines a contract as a “legally binding agreement made between two or more persons, by which rights are acquired by one or more to acts or forbearance on the part of other or others”. In India, the contracts are governed by the Indian Contract Act, 1872, most of which has been derived from the British Common Law of Contract or from principles of equity, justice and good conscience accepted in all civilised societies. The first part (sections 1-75) of Indian Contract Act, 1872 (the Act), deals with general principles of contracts and is applicable to all the contracts so formed under the Act.
Despite the fact that the law has been in existence for over 140 years, time and again it comes before the courts for interpretation even on basic ingredients of validity of contract due to the fact, as laid down by M. Hidyatullah, J. in Bhagwandas Goverdhandas Kedia v. M/s Girdharilal Parshottamdas & Co. [AIR 1966 SC 543], that the law was made in time where modern means of formation, execution and discharge of contract were neither available nor anticipated.

Attempt has been made to address the following issues in light of recent Supreme Court judgements:

• Whether a written agreement can be considered valid even if not signed by the parties to agreement?
• How is a consideration different from condition for performance of contract?
• Whether a time-bound contract can be enforced after the expiration of the stipulated time?

To start with, an agreement becomes a valid contract when the conditions as mentioned under section 10 of the Act are duly fulfilled.

• Section 10 of the Act (What agreements are contracts): All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
  Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.

Interpretation: On the basis of above, the essentials of a valid contract include:
1. Valid offer and acceptance
2. Intention to create legal relations
3. Competence to contract
4. Lawful consideration
5. Free consent
6. Lawful object
7. Not expressly declared void
It is also to be noted that the Act is not exhaustive for the provisions of law pertaining to contracts. Other Acts such as Specific Relief Act, 1963, Registration Act, 1908, Transfer of Property Act, 1882 or any other Act which contains such provisions as regards a contract can also be relied upon unless the Act expressly repeals provisions of any Statute, Act or Regulation.

Question of law: Whether a written agreement can be considered valid even if not signed by the parties to agreement?

• Section 2(h) of the Act: An agreement enforceable by law is a contract.
• Section 2(e) of the Act: Every promise and every set of promises, forming the consideration for each other, is an agreement.
• Section 2(a) of the Act: When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.

Interpretation: Based on the abovementioned sections, an agreement requires at least two persons: One who makes the proposal and other who accepts the proposal and both parties must be consensus ad idem (agreeing upon the same thing in the same sense).

Since the Act is silent on the type of documentation of the agreement, it may be oral, written or implied, depending upon the conduct of the parties, unless it is expressly so required by any other law, statute or regulation.

The above mentioned issue was recently adjudged by the Supreme Court of India which held that signature on an agreement is not a formal requirement according to any statute or law. The Supreme Court, in Govind Rubber Ltd. v. Louids Dreyfus Commodities Asia (P) Ltd. [(2015) 13 SCC 477], stated that there may not be any dispute with regard to the settled proposition of law that an agreement even if not signed by the parties can be spelt out from correspondence exchanged between the parties. However, it is the duty of the court to construe correspondence with a view to arrive at the conclusion whether there was any meeting of mind (consensus ad idem) between the parties which could create a binding contract between them. It is necessary for the Court to find out from the correspondence as to whether the parties were ad idem to the terms of contract.

Question of law: How is a consideration different from condition for performance of contract?

• Section 2(d) of the Act: When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.

Interpretation: The consideration therefore, must flow at the desire of the promisor, to promise or any other person. It can be a past, present or future consideration and should bear some value.

In the recently decided case of Commissioner of Central Excise v. Indorama Synthetics (I) Ltd. [2015 10 SCC 793], the Supreme Court of India laid down the difference between consideration and condition in a contract. The Court held that distinction between a consideration and condition would depend upon whether a reasonable man would or would not understand that the performance of the condition was requested as the price or exchange for the promise.

Question of law: Whether a time-bound contract can be enforced after the expiration of the stipulated time?

• Section 56 of the Act: Agreement to do impossible act: An agreement to do an act impossible in itself is void.
  Contract to do act afterwards becoming impossible or unlawful: A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
  Compensation for loss through non-performance of act known to be impossible or unlawful: Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.

In the recently decided case of State of MP v. M/S Ruchi Printers [2016 SCC Online SC 436], the court held that when time is an essence of the contract, the contract must be honoured within the stipulated time and no payment of any consideration of any kind is to be made in case of non-fulfilment of the contractual liabilities. In the present case, booklets were to be supplied to the State within a stipulated time which was further extended to 31st March, 2008. There was a specific condition in the contract that no booklet were to be received after the stipulated time. The apex court was of the opinion that the printers were very well aware that booklets were required urgently and time was the essence of contract and ample time was given to the printers to supply the booklets. Thus, the order for printing books stood cancelled on failure to supply within the stipulated period, because of which the contract came to an end and therefore no right of payment accrued from such contract.

On the basis of facts of the case, it was then held that the booklets which were printed after the stipulated time were without any work order in existence and no payment for such supply of booklets was necessary. However, payment for booklets which were supplied till the stipulated time ought to be made by the State.


SOURCES:

The Practical Lawyer [June, 2016 and February 2016 edition]
Case Material on Principles of Contract (General Principles), Faculty of Law, University of Delhi
Chartered Secretary [June 2016 edition]
www.scconline.com
www.sci.nic.in
www.indiankanoon.com