Description
This is a documentation on consumer protection in the pharma industry by defining types of consumers, complaints, structure of consumer forum, regulation of the medicine industry.
Consumer Protection Introduction The industrial revolution and the development in the international trade and commerce has led to the vast expansion of business and trade, as a result of which a variety of consumer goods have appeared in the market to cater to the needs of the consumers and a host of services have been made available to the consumers like insurance, transport, electricity, housing, entertainment, finance and banking. A well organised sector of manufacturers and traders with better knowledge of markets has come into existence, thereby affecting the relationship between the traders and the consumers making the principle of consumer sovereignty almost inapplicable. The advertisements of goods and services in television, newspapers and magazines influence the demand for the same by the consumers though there may be manufacturing defects or imperfections or short comings in the quality, quantity and the purity of the goods or there may be deficiency in the services rendered. In addition, the production of the same item by many firms has led the consumers, who have little time to make a selection, to think before they can purchase the best. For the welfare of the public, the glut of adulterated and sub-standard articles in the market has to be checked. Inspite of various provisions providing protection to the consumer and providing for stringent action against adulterated and sub-standard articles in the different enactments like Code of Civil Procedure, 1908, the Indian Contract Act, 1872, the Sale of Goods Act, 1930, the Indian Penal Code, 1860, the Standards of Weights and Measures Act, 1976 and the Motor Vehicles Act, 1988, very little could be achieved in the field of Consumer Protection. Though the Monopolies and Restrictive Trade Practices Act, 1969 arid the Prevention of Food Adulteration Act, 1954 have provided relief to the consumers yet it became necessary to protect the consumers from the exploitation and to save them from adulterated and sub-standard goods and services and to safe guard the interests of the consumers. In order to provide for better protection of the interests of the consumer the Consumer Protection Bill, .1986 was introduced in the Lok Sabha on 5th December, 1986
The Consumer Protection Act, 1986 is a milestone in the history of socio-economic legislation in the country. It is one of the most progressive and comprehensive piece of legislations, enacted for the protection of consumers. It was enacted after studying thoroughly the consumer protection laws in a number of countries and in consultation with representatives of consumers, trade and industry and extensive discussions within the Government.
The main objective of the act is to provide for the better protection of consumers. Unlike existing laws, which are punitive or preventive in nature, the provisions of this Act are compensatory in nature. The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, and reliefs of a specific nature and award of compensation, wherever appropriate, to the consumer. The Act has been amended in 1993, both to extend its coverage and scope and to enhance the powers of the redressal machinery.
Who is a consumer? All of us are consumers of goods and services. According to the Consumer Protection Act, the word "consumer" has been defined separately for "goods" and "services". For the purpose of "goods", a consumer means a person belonging to the following categories: (i) One who buys or agrees to buy any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment (ii) It includes any user of such goods other than the person who actually buys goods and such use is made with the approval of the purchaser. Note: - A person is not a consumer if he purchases goods for commercial or resale purposes. However, the word "commercial" does not include use by consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment. For the purpose of "services", a "consumer" means a person belonging to the following categories: (i) One who hires or avails of any service or services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment (ii) It includes any beneficiary of such service other than the one who actually hires or avails of the service for consideration and such services are availed with the approval of such person. Consumer vs. Customer Consumer is one who consumes the products and services generally and the customer is one who purchases goods or services from another and is
accustomed to use your products/services regularly. Both are same generally but the word consumer is more legally used and the word customer is more commercially used. There are consumer protection laws and not customer protection laws. Customer is also a consumer. Every customer is a consumer but not every consumer a customer.. Thus customer is a sub set of consumer
Types of consumer: Consumer is the key figure in market and around him all the activities are carried on. The consumer can be further divided in to two classes. 1: Personal Consumer or Individual Consumer: Personal consumer is that consumer who purchases goods and services for his own personal consumption or uses. We can say that consumer is also called to be the ultimate or final person because when the marketer produces the goods then he hand over the goods to personal consumer for final consumption. For example: Mr. X buys shaving cream for his personal use so he is said to be personal consumer. 2: Organizational Consumer or Industrial Consumer: Organizational consumer consists of the government agencies, business organization, non governmental organization (NGO), firms and different types of manufacturing companies who purchases the goods and services in order to run the business of the firm or business concern or business organization. For example: A manufacturing organization let suppose Bannu woolen mills purchases raw
materials in order to produce woolen cloths in winter season. The main purpose of the purchase and selling of Bannu woolen mills just to operate the mill or business of the concern is getting profit or not. Salient features of the Consumer Protection Act
The Act applies to all goods and services, unless specifically exempted by the Central Government. ? ? It covers all the sectors whether private, public or cooperative. The provisions of the Act are compensatory in nature.
It enshrines the following rights of consumers: ? ? ? ? ? ? ? Right to be protected against the marketing of goods and services which are hazardous to life and property. Right to be informed about the quality, quantity, potency, purity, standard and price of goods or services so as to protect the consumer against unfair trade practices; Right to be assured, wherever possible, access to a variety of goods and services at competitive prices; Right to be heard and to be assured that consumers' interests will receive due consideration at appropriate forums; Right to seek redressal against unfair trade practices unscrupulous exploitation of consumers; and Right to consumer education The Act envisages establishment of Consumer Protection Councils at the Central and State levels, whose main objects will be to promote and protect the rights of the consumers.
Consumer Protection Act (CPA) 1986 & Its Medical Profession related Provisions (After The Judgment Honorable Supreme Court of India dated 13-11-95) Consumer means Any "person" who hires or ails of nay services for a consideration which has been paid or promised or partly paid and partly promised any include any beneficiary of such services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.
Comments Consideration means fees/payment. Fees may have been fully paid in cash or cheques, or undertaking that it will be paid, which is accepted by the doctor/hospital. The fees may have been given partly (as advance) with the understanding that the remaining bill will be paid subsequently. The payment may be done by the patient himself or by someone else for the patient, e.g. father for his child, husband for wife, any person for someone. A person who receives medical treatment in Government or Charitable Hospital, which provides treatment to one and all free of cost, is not a consumer under the Act. A person who receives treatment in a Government or charitable hospital which provides treatment free of cost to some and on consideration to some would be a consumer, even if he has not paid any fees. In case of death of patient who is a consumer, legal heirs (representatives), of the decreased will be considered as "consumer". If the payment has been made by any person who is not a legal heir of the deceased he too will considered as 'consumer'. Complainant means Any allegation, in writing made by a complaint that the service hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect. As per the definition set out in Section 2 (1) (b), Consumer Protection Act, 1986, a person can be a 'complainant' only within the definition of a 'consumer' contained in Section 2 (1) (d) of the said Act, and not when such person falls outside the purview of the expression 'consumer.' However where a general insurance policy insurer pays the claim, than such insurance company stands subrogated to the rights and remedies of the claimant in respect of loss or damage to the goods. Such insurer alongwith the insured can maintain a complaint as has been held by the National Commission
What constitutes a complaint? Under the Act, a complaint means any allegation in writing, made by a complainant in regard to one or more of the following:-
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Any unfair trade practice, as defined in the Act or restrictive trade practices like tieup sales adopted by any trader. One or more defects in goods: when goods are hazardous to life and safety, when used, are being offered for sale to public in contravention of provisions of any law for the time being in force. Deficiencies in services. A trader charging excess of price: o o o Fixed by or under any law for the time being in force; or Displayed on goods; or Displayed on any packet containing such good;
Who can file a complaint?
1. A consumer 2. Any voluntary consumer organization registered under the Societies Registration Act, 1860 or under the Companies Act, 1956 or under any other law for the time being in force. 3. The Central Government 4. The State Government or Union Territory Administrations. 5. One or more consumers on behalf of numerous consumers who are having the same interest
Deficiency means Any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to nay service. Person include 1. A firm whether registered or not; 2. A Hindu undivided family; 3. A co-operative society; 4. Every other association of persons whether registered under the Societies Registration Act, 1860, or not.
Service means Service of any description which is made available to potential users and includes 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 nay service free of charge or under a contract of personal services.
Comments On the meaning of the word "service" in relation to medical profession, the Supreme Court in Indian Medical Association v. V.P. Shantha & Ors. (supra) came to the following conclusions:
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Service rendered to a patient by medical practitioner (except)where the doctor rendered service free of charge to every patient or under a contract of personal service), by way 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. The expression 'contract of personal service' in section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in section 2(1) (o) of the Act. Service render at a Government hospital/health centre/dispensary or at non-government hospital/nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service- is outside the purview of the expression "service" as defined in section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. Service rendered at a non-government hospital/nursing home where charges are required to be paid by the person availing such services falls within the purview of the expression 'service' as defined in section 2(1) (o) of the Act.
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Service rendered at Government hospital/Health centre/ Dispensary or at a \n non-government Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, by such doctors and hospitals would also be 'service' and the recipient a 'consumer' under the Act. Service rendered by a medical or hospital/nursing home cannot be regarded as service rendered free of charge, if the persons availing the service has taken an insurance policy for medical care where under the policy charges for consultation diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in section 2(1) (o) of the Act.
Similarly, where as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family member dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under section 2(1) (o) of the Act. Structure of Consumer Forums / Commissions and Their Jurisdictions SUPREME COURT (Final Appeal)
Appellate Authority over State Commission Revisional Jurisdiction
NATIONAL COMMISSION
Original Jurisdiction OverRs.20,00,000
Appellate Authority for District Forum Suo moto Revision
STATE COMMISSION
Original Jurisdiction over Rs. 5,00,000 up to Rs. 20,00,000
DISTRICT FORUM
Original Jurisdiction up to Rs. 5,00,000
The maximum time limit for a claim to be filed under CPA is 2 years from the date of occurrence of the cause of action. There is no court fees to be paid to file a complaint in a Consumer Forum / Commission. Further, a complainant/opposite party can present his case on his own without the help of a lawyer. As per the Consumer Protection Rules, 1987, a complaint filed in the Consumer Forum / Commission shall be adjudicated, within a period of 90 days from the date of notice by opposite party and within 150 days if it requires analysis or testing of commodities
Following are the important Schemes for Consumer Protection : ? ? ? ? Every year the Government makes budgetary provisions for the Consumer Welfare Fund and it is spent on Consumer Protection related matters. There are many Voluntary Consumer Organisations. Since these contribute to the welfare of the consumers and create awareness, such organisations are given assistance for their work. The Central Government has started a Scheme, under which the Voluntary Consumer Organisations, which do commendable work in the Consumer Protection field are granted Rs.50,000/-,Rs.40,000/- & Rs.30,000/- along with Merit Certificate. Similarly, there is National Youth Scheme, under which the Youths between 15-35 years age-group are given Rs.20,000/-,Rs.15,000/- & Rs.10, 000/- along with Merit Certificate for their contribution in consumer field. The State Government recommends the names received from the Consumer Organisations to the Central Government. To create awareness in the School/College students, lectures are given in each district and for that purpose visiting lecturers are appointed. Apart from the above, the Government has created Consumer Protection Cells at the District level under the Chairmanship of the Collector. The Cell consists of 17 unofficial members from different Consumer Organizations, representatives of Gas dealers, petrol dealers & Traders' Organizations apart from the Senior Officers at District level connected with consumer goods/services. The meetings of the Cell are held every month and consumer problems are solved on the spot and many other problems are settled after regular follow-up
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THE LEGAL AVENUES (other than CPA) AVAILABLE TO AGGRIEVED PATIENTS TO SUE AGAINST HEALTH PROFESSIONALS. a) Medical Council of India and Dental Council of India. b) Civil Courts. c) MRTP (Monopolies and Restrictive Trade Practices Commission) d) Public Interest Litigation. e) Sections of Indian Penal Code, 1860 Regulation of The Practice of Medicine Indian Medical Council Act,1956
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Regulates the profession of Allopathic medicine by constituting Medical Council of India (MCI) and the State Medical Councils. Authorizes the Medical Council of India (MCI) to recognize the medical qualifications granted by any Authority or Institution of India or other countries. Authorized the MCI to maintain a register of medical practitioners to be known as the Indian Medical register, which consists of the entries of all the State Registers of medical practitioners. Empowers the State Medical Councils to punish persons who falsely claim to be registered or misuse titles and when medicine is practiced by unregistered persons, with fine or imprisonment or both. Authorizes the MCI to prescribe standards of professional conduct and etiquette or Code of Ethics for medical practitioners. The violations of these standards constitute infamous conduct (professional misconduct).
State Medical Councils are empowered to take disciplinary action when prescribed standards of professionals conduct and etiquette or Code of Ethics are not observed by the doctors and violations of which constitute professional misconduct / Infamous conduct.
Under the following circumstances, a doctor can be temporarily or permanently debarred from practicing medicine.
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Improper or indecent conduct towards the patient Conviction in a Court of Law Failure or dereliction of duty in giving professional certificates, reports and other documents Contravening the Drugs and Cosmetics Act, 1940 Selling scheduled poison Performing or abetting an illegal operation Receiving or giving commission or using touts Employing unqualified persons Associations with (drug) manufacturing firms Advertisements Running shops (dispensing chemists) etc. Failure to give professional service for certain things on religious grounds.
An aggrieved patient can complain to the State Councils about a registered medical practitioner about an alleged wrong committed by him. The Council initiates proper hearing where the concerned doctor is given adequate opportunities to represent his side. If it arrives at the conclusion that the doctor has indeed committed an act, which involves an abuse of professional position that might reasonably by regarded as disgraceful or dishonourable by professional men of good repute and competence, the doctor is either given a warning notice or temporarily or permanently debars him for practicing medicine. The Council does not have any statutory powers to award any compensation to the aggrieved patient or legal heirs. The Indian Medical Council Act, 1956 also provides certain privileges to all the registered medical practitioners. Rights and Privileges of Registered Medical Practitioners Conferred by the Indian Medical Council Act, 1956.
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Right to choose a patient Right to add title, descriptions of the academic qualifications to the name Right to practice medicine Right to dispense medicines Right to possess and supply dangerous drugs to the patients
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Right Right Right Right
to recovery of fees for appointment to public and local hospitals to issue medical certificates to give evidence as an expert in a Court of Law
Civil Courts The aggrieved patients can file a case against the doctor for monetary compensation for which the patient to pay court fees that depends upon the compensation sought. Probably, due to near acceptance of medical negligence as inevitable by the patients and their relatives or local settlements, not many cases have reached the apex court of law in the past. The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act, 185536 and the Section 357 of Cr. P.C., 197337. But to avail it, an aggrieved patient have to wait for years and spend considerable amount of money on litigations. The civil court cases take care the route of Sub-Court, District Court, High Court and Supreme Court. Monopolies and Restrictive Trade Practices Act (MRTP), 1969 This Act is the precursor of CPA, 1986. Before the advent of CPA, this Act was the only resource to consumers against the unfair trade practices. The commission that looks into the disputes brought under MRTP Act based in New Delhi. Public Interest Litigation (PIL) An aggrieved patient can directly approach the High Court or the Supreme Court when his/her grievances was not properly redressed. PILs are usually resorted when public health programmes are not implemented properly. Some of the landmark judgements on Supreme Court on health are the result of PILs. Indian Penal Code and Medical Negligence Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpraxis in India. A physician can be charged with criminal negligence when a patient dies
from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross negligence. Before the administration of anaesthesia or performance of an operation, the medical man is expected to follow the accepted precautions. In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is, however, not liable for an error judgment. The law expects a duly qualified physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cures. It has long been recognized that criminal liability of a physician may result from a high degree of negligent conduct. What the law calls criminal negligence is largely a matter of degree; it is incapable of a precise definition. To prove whether or not it exists is like chasing a mirage. It requires that any of the following to be established in a case of criminal medical negligence. "Gross Lack of competency or gross inattention, or wanton indifferences to the patient's safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient." (Hampton v State 38; State v Lester)39 In R. v Bateman (1925)40, Dr. Bateman was prosecuted for manslaughter and the charges of negligence made against him were: i) Causing the internal ruptures in performing the operations of 'version'; ii) Removing part of the uterus along with the placenta; iii) Delay in sending the patient to the infirmary. The trial court convicted him. But the Court of Appeal held: " ... in order to establish criminal liability, the facts must be such that, .. the negligence of the accused went beyond a mere matter of compensation between subjects and should such disregard for the life and safety of others as to amount to a crime against the state and conduct punishment."41 When a FIR (First Information Report) is filed against a doctor for the death of a patient who was under his treatment, under this Indian Penal Code Section 304-A42 the doctor can be arrested. A doctor charged under this section can obtain bail and if proved guilty, the doctor can be punished with
a maximum of two years imprisonment or fine or both. But, if the patient is alive, the doctor is charged under the Indian Penal Code Section 337 and 33843. The Indian Courts have been very careful not to hold qualified physicians criminally (instances of quacks for criminal negligence are there) liable for patients' deaths that are the result of a mere mistake of judgment in the selection and application of remedies and when the death resulted merely from an error of judgment or an inadvertent death.
CONSUMER DISPUTES REDRESSAL AGENCIES
Redressal Forums have been established as three different levels:
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"District Forum" by State Government. At least one in each district in certain cases on District Forum may cover 2 or more district, or there may be two or more District Forums in one District. "State Commission" by State Government. "National Commission" (National Consumer Disputes Redressal Commission) by Central Government.
DISTRICT FORUM This shall consists of:
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a person who is, or has been or is qualified to be a District Judge, who shall be its President two other members who shall be persons of ability, integrity and standing and have adequate knowledge or experience of or shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman.
Jurisdiction of District Forum
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The District Forum shall be jurisdiction to entertain complaints where the value of goods or services and the compensation, if any, claimed does not exceed rupees five lakhs. A complaint shall be instituted in District Forum within the local limits of whose jurisdiction:
a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or caries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce, in such institution, or c) The cause of action, wholly or in part, arises. Manner in which complaint shall be made A complaint may be filled with a District Forum by:
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The consumer to whom such service is provided or is agreed to be provided Any recognized consumer association, whether the consumer to whom the service is provided or is agreed to be provided is a member of such association or not One or more consumer, where there are numerous consumers having the same interest, with the permission of the district forum, on behalf of, or for the benefit of, all consumers so interested The Central or the State Government.
Procedure on receipt of complaint a. The District Forum shall on receipt of a complaint: a) Refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. b. Where the opposite party, on receipt of a copy of the complaint, denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute i.) On the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint; or ii.) On the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent
his case within the time given by the Forum; In addition to procedure prescribed under section 13 (2) of the Act, further procedure has been provided for under the respective State Rules, which are almost identical in each state. Such further procedure as provided in Consumer Protection (Rajasthan) Rules, 1987 is as under: 1. Where the opposite party admits the allegation made by the complainant, the District Forum shall decide the complaint on the basis of the case and documents present before it. 2. If during the proceeding conducted under section 13 of the Act, the District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorized agent to appear before the District Forum in such date of hearing or any other date to which hearing could be adjourned. 3. Where the complainant or his authorized agent fails to appear before the District Forum on Such day, the District Forum may in its discretion either dismiss the complaint in default or if a substantial portion of the evidence of the complainant has already been recorded, decide it on merits. Where the opposite party or its authorized agent fails to appear on the day of hearing, the District Forum may decide the complaint ex-parte. 4. Where any party to a complaint to whom time has been granted fails to produce his evidence or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the complaint, for which time has been allowed, the District Forum may notwithstanding such default: a) If the parties are present, proceed to decide the complaint forthwith; or b) If the parties or any of them is absent, proceed as mentioned above in sub-rule 5. The District Forum may, on such terms as it may think fit at any stage, adjourn the hearing of the complaint but more than one adjournment shall ordinarily be given and the complaint should be decided within 90 days from the date of notice received by the opposite where complaint does not require analysis or testing of the foods and within 150 days if it requires analysis or testing of the goods. DISTRICT FORUM Powers of Civil Court to District Forums The District Forum is also vested, under section 13(4), with the following powers as are vested in a civil under the Code of Civil Procedure 1908, while
trying a civil suit in the following matters: 1. the summoning and enforcing attendance of any defendant or witness and examining the witness on oath; 2. the discovery and production of any document or other material object producible as evidence; 3. the reception of evidence on affidavits; 4. the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from the appropriate laboratory or from any other relevant source; 5. issuing of any commission for the examination of any witness. Additional powers requiring production of documents, etc. The National Commission, State Commission and District Forums are also vested with additional powers, under rule 10 of the Consumer Protection Rules, 1987 to require any person: 1. (a) to produce before, and allow to be examined and kept by an officer of the National Commission, the State Commission or the District Forum, as the case may be, specified in this behalf, such books, accounts, documents or commodities in the custody or under the control of the persons so required as may be specified or described in the requisitions, if the examination of such books, accounts, documents or commodities are required for the purpose of this Act; (b) to furnish to an officer so specified, such information as may be required for the purpose of this Act. 2. (a) Where during any proceedings under this Act the National Commission, the State Commission or the district Forum as the case may be has any ground to believe that any book, any paper, commodity, or document which may be required to be produced in such proceeding are being, or may be destroyed, mutilated, altered, falsified or secreted, it may, by writing order authorized any officer to exercise the power of entry and search of any premises. Such authorized officer may also seize such books, papers, documents or commodities as are required for the purpose of this Act: Provided that such seizure shall be communicated to the National Commission or the District Forum, as the case may be, as soon as it is made or within a period not exceeding 72 hours of making such seizure; (b) the National Commission, the State Commission or the District Forum as the case may be, on examination of such seized documents or commodities, as the case may be, may order the retention thereof or may return it to the party concerned.
Finding of the District Forum If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint about the services are allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely: 1. to remove the defect pointed out by the appropriate laboratory from the goods in questions; 2. to replace the goods with new goods of similar descriptions which shall be free from defect; 3. to return to the complainant the price, or as the case may be, the charges paid by the complainant; 4. to pay such amount as may awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party; 5. to remove the defects or deficiencies, in the services in question; 6. to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them; 7. not to offer the hazardous goods for sale; 8. to withdraw the hazardous goods from being offered for sale; 9. to provide for adequate costs to parties. Comments The provisions relating to goods may apply in case of supply of defective medicines, equipments, blood etc. Appeal against orders of the District Forum Any person aggrieved by an order made by the District Forum may appeal against such order to the State Commission within a period of 30 days from the date of the order. The State Commission may entertain an appeal after 30 days, if it is satisfied that there was sufficient cause for not filing it within that period. The expression 'date of order' should be constructed as date of knowledge of the order, i.e., when copies of the order are received by the party STATE COMMISSION It shall consists of: 1. a person who is or has been judge of a High Court, appointed by the State Government, who shall be its President;
2. two other members with qualifications and experience (as for District Forum) within the State; 3. revision petitions against the District Forum. Procedure to be followed by State Commission Procedure of the State Commission for entertaining original complaints is the same as for District Forum Procedure of hearing appeal by State Commission The procedure for hearing of appeals by the State Commission has been prescribed by the State Rules framed by the States which are almost identical for each State. Reference may be made to the relevant State Rules by the readers of that State. Appeal may be decided ex parte in case the opposite party fails to file a reply to the appeal and /or fails to appear himself or through his agent/advocate on the date fixed. It may be decided on merit, in case the appellant fails to appear on the date fixed for hearing. Appeals against orders of State Commission Any person aggrieved by an order made by the State Commission may appeal against such order to the National Commission within a period of 3 days. The National Commission may entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period. NATIONAL COMMISSION This shall consists of : 1. a person who is or has been a judge of the Supreme Court to be appointed by the Central Government who shall be its President. (No appointment under this clause shall be made except after consultation with the Chief Justice of India). 2. 4 other members (qualification: As for District Forum/State Commission), one of whom shall be a woman. Jurisdiction of the National Commission The National Commission shall have jurisdiction: 1. to entertain (a) complaints where the value of goods services & compensation if nay, claimed exceeds rupees 20lakhs; and (b) appeals against the orders of any State Commission. 2. to entertain revision petitions against the State Commission.
Procedure to be followed by the National Commission A complaint containing the following particulars shall be presented by the complainant in person or by his agent to the National Commission or be sent by registered post, addressed to the National Commission: 1. the name, description and the address of the complainant; 2. the name, description and address of the opposite party or parties, as the case may be, so far as they can be ascertained; 3. the facts relating to the complaint and when and where it arose; 4. documents in support of allegations contained in the complaint; 5. the relief which the complainant claims. The remaining procedure is similar to that for State Commission. Procedure for filing and hearing of appeals has been prescribed in Rule 15 of the Consumer Protection Rules, 1987. Appeal against orders of the National Commission Any person aggrieved by an order made by the National Commission, may appeal against such order to the Supreme Court within 30 days from the date of the order. The Supreme Court ay entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period. Limitation Period The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed in within 2 years from the date on which the cause of action has arisen. In case there are sufficient grounds for not filing the complaint within such period delay may be condoned at the discretion of the Consumer Forum/Commission. Dismissal of Frivolous or Vexatious Complaints Where a complaint instituted before the District Forum, the State Commission or the National Commission, as the case may be, is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complaint shall pay to the opposite party such cost, not exceeding rupees 10,000 as may be specified in the order. Penalties Where a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission, as the case may be, such person or complainant shall be
punishable with imprisonment for a term which shall not be less than one month but which may extend to 3 years, or with fine which shall not less than 2,000/- rupees but which may extend to 10,000 rupees, or with both. In exceptional circumstances the penalties may be reduced further. Consumer Protection Councils The Act provides for the establishment of: 1. The Central Consumer Protection Council (The Central Council). 2. The State Consumer Protection Council (The State Council). Objectives of the Council shall be: To promote and protect the rights of the consumers such as:a) the right to be protected against the marketing of services which are hazardous to life and property; b) the right to be informed about the quality, quantity, potency, purity, standard and price of services so as to protect the consumer against unfair trade practices; c) the right to be assured, whenever possible, access to a variety of services at competitive prices; d) the right to be heard and to assured that consumer‘s interest will receive due considerations at appropriate forums; e) the right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers; and f) the right to consumer education . The Central Council shall consists of 150 members. The Minister in-charge of the Consumer Affairs in the Central Government shall be its Chairman. The
State Council shall be chaired by Minister-in-charge of Consumer Affairs in the State Government.
The resolutions passed by these Councils are recommendatory in nature LANDMARK CASE The NCDRC‘s order did not accept the claim of medical professionals who argued that the doctor-patient relationship is similar to master – servant relationship, which is a contract of personal service that should be exempted from CPA. But the NCDRC‘s order decreed that the doctor – patient relationship is a contract for personal service and it is not master – servant relationship. It is also said that the doctor is an independent contractor and
the doctor, like the servant, is hired to perform a specific task. However, the master or principal (the hirer) is allowed to direct only what is to be done, and done, and when. The ?how‘ is left up to the specific discretion of the independent contractor (doctor). So, the doctor-patient relationship is a contract for personal service and as such, cannot be excluded from CPA. Indian Medical Association VS. V.P. Shantha & Ors. PETITIONER: INDIAN MEDICAL ASSOCIATION Vs. RESPONDENT: V.P. SHANTHA & ORS. DATE OF JUDGMENT13/11/1995 BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) KULDIP SINGH (J) HANSARIA B.L. (J) CITATION: 1996 AIR 550 1995 SCC (6) 651 JT 1995 (8) 119 1995 SCALE (6)273 ACT: JUDGMENT: J U D G M E N T S.C. AGRAWAL, J. : Leave granted in SLP (C) Nos. 18497/93 and 21755/94. Delay condoned and leave granted in SLP (C) Nos. 18445- 73/94. HIGHLIGHTS As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, 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.
WYETH V. LEVINE
The New York Times has called today‘s US Supreme Court ruling in the Wyeth vs. Levine suit the ?most important business case in years.? On April 7, 2000, Diana Levine, a professional musician, went to the hospital to treat a migraine headache and, after being injected with a drug manufactured by Wyeth, left with injuries that led quickly and irreversibly to the loss of her right arm. Specifically, Levine‘s arm was amputated because Wyeth‘s drug Phenergan, prescribed to alleviate nausea associated with a migraine headache, reached her arteries. Phenergan was given to Levine using a method of administration that was permissible under Wyeth‘s label instructions, even though Wyeth knew this method increased risk of contact with arteries and serious injuries. The drug was administered intravenously through a technique known as direct IV, or ?IV push.? In this method, a syringe pushes medication directly into the patient‘s vein. Wyeth had known for decades that when Phenergan is administered by the IV push method, even by experienced clinicians, inadvertent arterial contact can result. This is in contrast to administration through a free flowing IV bag, which reduces the risk of inadvertent arterial injection because the nurse or physician can be more certain that the needle has been placed in a vein. A solution dripping from an IV bag will not flow
freely into an artery due to back pressure from the patient. Wyeth had also known that when Phenergan comes in contact with an artery, the artery dies, and necrosis, gangrene, and amputation result. Four experts testified at the state level that if Phenergan is used intravenously, it should be done only through a hanging IV bag and that the label should have warned against the use of IV push. However Phenergan‘s label did not contain any warnings regarding use of the IV push method. And, as the Vermont Supreme Court held, the FDA never made any determination as to whether the label should have warned against the IV push method. Because the IV push method was used to administer Phenergan to Levine, the drug penetrated her artery. For seven weeks after the injection, she suffered unimaginable physical and emotional pain as she watched her right hand turn black and die. In short, as a result of being subjected to an unsafe and unnecessary method of administration of a drug to curb nausea, Levine endured two amputations. She first lost her right hand and then her right arm up to the elbow, harming her profession and lifelong passion to be a musician and play the guitar. Representatives for Diana Levine argued that Phenergan‘s labeling lacked sufficient warnings, and that the lack of safety information led to the improper delivery of the drug. Phenergan is an antihistamine that is also used as an anti-nausea treatment. Levine was given the drug via IV push, but rather than inject into the vein, the drug was shot into an artery, which can lead to gangrene. The drug‘s labeling includes four separate warnings against inadvertent injection into the artery, including a statement in boldface capital letters that reads: "INTRA-ARTERIAL INJECTION [CAN] RESULT IN GANGRENE OF THE AFFECTED EXTREMITY." The plaintiff‘s lawyers argued that the warning wasn‘t sufficient, and that Wyeth should have contraindicated intravenous use—although FDA had never required such a change, and had even specifically required the drugmaker to retain the language about arterial injection in a review of the label in 1997, a year before Levine‘s mishap. Wyeth‘s lawyers argued that FDA makes it so difficult to change labeling after approval that it wouldn‘t have been possible to alter. The US Supreme Court disagreed. ?The argument that Levine‘s state-law claims are preempted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected,? the verdict stated. ?Although a manufacturer generally may change a drug label only after the FDA approves a supplemental application, the agency‘s ?changes being
effected‘ regulation permits certain pre-approval labeling changes that add or strengthen a warning to improve drug safety.? ?The decision reflects a clear recognition by the Supreme Court that the responsibility to provide adequate information about the risk associated with prescription drugs lies with the manufacturer and not FDA,? said Jeff Grand, an attorney for Seeger Weiss. ?One of the more compelling aspects of the decision was recognition that the manufacturer needs to provide new information about the drugs risk and include not new data, but new analysis of old data. As a safety risk emerges, it‘s the responsibility of the drug companies to provide that information to the medical community and the FDA.? Wyeth wasn‘t pleased with the ruling, stating that ?lay juries? should not be allowed to ?second guess? risk/benefit of drugs of drugs approved by experts at FDA. Wyeth‘s prospective new owner, Pfizer, sent the following comment to Pharm Exec. ?Pfizer is disappointed with today's 6–3 US Supreme Court ruling in Wyeth v. Levine,? a Pfizer spokesperson stated in an email. ?Pfizer believes that, due to its medical and scientific expertise, the US Food and Drug Administration is the best authority to weigh the benefits and risks of prescription medicines, and to ensure that those benefits and risks are being appropriately communicated in product labels.? The case, Wyeth v. Levine, was a much anticipated and closely watched legal battle to determine whether pharma companies could use preemption as a legitimate argument to avoid state-level personal injury suits. In Levine, a Vermont court found Wyeth responsible for the loss of a woman‘s arm caused by inappropriate administration of Phenergan (promethazine). The drug firm had to pay the plaintiff $6.7 million in damages.
Medical Negligence
The service which medical professionals render to us is the noblest. Aryans embodied the rule that, Vidyo narayano harihi (which means doctors are equivalent to Lord Vishnu). Professionals like doctors, lawyers, etc. are in the category of persons professing special skills. Any man practicing a profession requires particular level of learning, which impliedly assures a person dealing with him, that he possesses such requisite knowledge, expertise and will profess his skill with reasonable degree of care and caution. It should be taken in to consideration that the professional should command the ?corpus of knowledge? of his
profession. Since long the medical profession is highly respected, but today a decline in the standard of the medical profession can be attributed to increasing number of litigations against doctors for being negligent narrowing down to ?medical negligence?.
The ‘Bolam’ test electro convulsive therapy Mr. Bolam was advised electro convulsive therapy for mental illness. He was however, not warned of the risks of fractures involved in the treatment. There were two bodies of opinion. One preferred the use of relaxant drugs. Using relaxants, the patient sustained dislocation of both hip joints with fracture of pelvis. The doctor was not held negligent because he acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that art. The ?Bolam‘ principle implies that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice, has been accepted by House of Lords as applicable not only to diagnosis and treatment but also to advice and warning. A doctor is not liable for taking one choice out of two for favouring one school rather than another. He is only liable when he falls below the standard of a reasonable component practitioner in this field, so much so that his conduct may deserve censure.
Spring Meadows Hospital vs. Harjo Ahluwalia
In Spring Meadows Hospital vs. Harjo Ahluwalia[11] the Supreme Court was concerned with the rights of a parent when a child dies due to medical negligence. It was argued by the hospital that the parents were not consumers under the Act so could not get any relief. The Court rejected this argument and observed that even parents were covered under the Act and there was nothing in the law which prevented the parents as well as the child from recovering damages. In this case, a child patient was treated for seven days in the Spring Meadows Hospital (Noida) for typhoid. The consultant physician prescribed ?Chioromphenical injection?, but the unqualified nurse misread it as ?chloroquine? and indented, for the purchase of injection, ?Lariago? (i.e. chloroquine). She injected chloroquine 5 mg IV, which was at least 3-1/2 times of the normal paediatric dose. The patient suffered irreversible brain damage. Treatment for 21 days in AIIMS New Delhi, did not help. The patient was compelled to live in a vegetative state.
The National Consumer Commission, whose judgment was confirmed by the Supreme Court, came to the conclusion, that the attending doctor was negligent, as he allowed an unqualified nurse to administer the injection, even though the consultant doctor had advised administration by the attending doctor himself.
The hospital and the nurse were jointly and severally liable. The Court made the following important observations:
Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which may tantamount to negligence cannot be pardoned….Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anesthetia will frequently lead to the imposition of liability…. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing his duties properly.
The Court ordered the following compensation in the case:
(a) Rs. 12.5 lakhs to the child (Rs. 10 lakhs compensation, plus Rs. 2.5 lakhs for equipment).
(b) Rs. 5 lakhs to the parents, for mental agony.
The Supreme Court further held that when a young child is taken to a hospital and treated by the hospital, then
(a) the child‘s parents would come within the definition of ?consumer?; and
(b) the child also becomes a ?consumer?, being a beneficiary of such services.
Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005
Bench: R Lahoti, G Mathur, P.K.Balasubramanyan
CASE NO.:
Appeal (crl.) 144-145 of 2004 PETITIONER: Jacob Mathew RESPONDENT: State of Punjab & Anr. DATE OF JUDGMENT: 05/08/2005 BENCH: CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN JUDGMENT: JUDGMENT R.C. LAHOTI, CJI Ashok Kumar Sharma, the respondent no.2 herein filed a First Information Report with police station, Division No. 3, Ludhiana, whereupon an offence under Section 304A read with Section 34 of the Indian Penal Code (for short "the IPC") was registered. The gist of the information is that on 15.2.1995, the informant's father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant's elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us and Dr.Allen Joseph came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical
staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between, 5 to 7 minutes were wasted. By this time, another doctor came who declared that the patient was dead. The latter part of the FIR states (as per the translation in English as filed by the complainant): "the death of my father was occurred due to the carelessness of doctors and nurses and non availability of oxygen cylinder and the empty cylinder was fixed on the mouth of my father and his breathing was totally stopped hence my father died. I sent the dead body of my father to my village for last cremation and for information I have come to you. Suitable action be done Sd/- ---- As per statement of intimator the death of Jiwan Lal Sharma has occurred due to carelessness of doctor and nurses concerned and to fit empty gas cylinder." On the above said report, an offence under Section 304A/34 IPC was registered and investigated. Challan was filed against the two doctors. The Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC against the two accused persons, both doctors. Both of them filed a revision in the Court of Sessions Judge submitting that there was no ground for framing charges against them. The revision was dismissed. The appellant filed a petition in the High Court under Section 482 of the Code of Criminal Procedure praying for quashing of the FIR and all the subsequent proceedings. It was submitted before the High Court that there was no specific allegation of any act of omission or commission against the accused persons in the entire plethora of documents comprising the challan papers filed by the police against them. The learned single Judge who heard the petition formed an opinion that the plea raised by the appellant was available to be urged in defence at the trial and, therefore, a case for quashing the charge was not made out. Vide order dated 18.12.2002, the High Court dismissed the petition. An application for recalling the abovesaid order was moved which too was dismissed on 24.1.2003. Feeling aggrieved by these two orders, the appellant has filed these appeals by special leave. According to the appellant, the deceased Jiwan Lal was suffering from cancer in an advanced stage and as per the information available, he was, in fact, not being admitted by any hospital in the country because his being a case of cancer at terminal stage. He was only required to be kept at home and given proper nursing, food, care and solace coupled with prayers. But as is apparent from the records, his sons are very influential persons occupying important positions in Government. They requested the hospital authorities that come what may, even on compassionate grounds their father may be admitted in the hospital for regulated medical treatment and proper management of diet. It was abundantly made clear to the informant and his other relations who had accompanied the deceased that the disease was of such a nature and had attained such gravity, that peace and solace could only be got at home. But the complainant could prevail over the doctors and hospital management and got the deceased admitted as an in-patient.
Nevertheless, the patient was treated with utmost care and caution and given all the required medical assistance by the doctors and para-medical staff. Every conceivable effort was made by all the attending staff comprising of doctors and nurses and other para-medicals to give appropriate medical treatment and the whole staff danced attendance on the patient but what was ordained to happen, did happen. The complainant and his relations, who were misguided or were under mistaken belief as to the facts, lodged police report against the accused persons wholly unwarranted and uncalled for. The matter came up for hearing before a Bench of two learned judges of this Court. Reliance was placed by the appellant on a recent two-judge Bench decision of this Court in Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422. The Bench hearing this appeal doubted the correctness of the view taken in Dr. Suresh Gupta's case and vide order dated 9.9.2004 expressed the opinion that the matter called for consideration by a Bench of three Judges. This is how the case has come up for hearing before this Bench. In Dr. Suresh Gupta's case, the patient, a young man with no history of any heart ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be "not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage". The Bench formed an opinion that this act attributed to the doctor, even if accepted to be true, could be described as an act of negligence as there was lack of due care and precaution. But, the Court categorically held "for this act of negligence he may be liable in , his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable". The referring Bench in its order dated 9.9.2004 has assigned two reasons for their disagreement with the view taken in Dr. Suresh Gupta's case which are as under
1) Negligence or recklessness being 'gross' is not a requirement of Section 304A of IPC and if the view taken in Dr. Suresh Gupta's case is to be followed then the word 'gross' shall have to be read into Section 304A IPC for fixing criminal liability on a doctor. Such an approach cannot be countenanced. (2) Different standards cannot be applied to doctors and others. In all cases it has to be seen whether the impugned act was rash or negligent. By carrying out a separate treatment for doctors by introducing degree of rashness or negligence, violence would be done to the plain and unambiguous language of section 304A. If by adducing evidence it is proved that there was no rashness or negligence involved, the trial court dealing with the matter shall decide appropriately. But a doctor cannot be placed at a different pedestal for finding out whether rashness or negligence was involved. We have heard the learned counsel for the appellant, the respondent-State and the respondent complainant. As the question of medical negligence arose for
consideration, we thought it fit to issue notice to Medical Council of India to assist the Court at the time of hearing which it has done. In addition, a registered society 'People for Better Treatment', Kolkata; Delhi Medical Council, Delhi Medical Association and Indian Medical Association sought for intervention at the hearing as the issue arising for decision is of vital significance for the medical profession. They too have been heard. Mainly, the submissions made by the learned counsel for the parties and the intervenors have centred around two issues : (i) Is there a difference in civil and criminal law on the concept of negligence?; and (ii) whether a different standard is applicable for recording a finding of negligence when a professional, in particular, a doctor is to be held guilty of negligence? With the awareness in the society and the people in general gathering consciousness about their rights, actions for damages in tort are on the increase. Not only civil suits are filed, the availability of a forum for grievance redressal under the Consumer Protection Act, 1986 having jurisdiction to hear complaints against professionals for 'deficiency in service', which expression is very widely defined in the Act, has given rise to a large number of complaints against professionals, in particular against doctors, being filed by the persons feeling aggrieved. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury (of varying degree) to the patient. The present one is such a case. The order of reference has enabled us to examine the concept of 'negligence', in particular 'professional negligence', and as to when and how it does give rise to an action under the criminal law. We propose to deal with the issues in the interests of settling the law. Negligence as a tort The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) ___ "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current
forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:1. the existence of a duty to take care, which is owed by the defendant to the complainant; 2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and 3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24) Negligence __ as a tort and as a crime The term 'negligence' is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence upto the modern times. Generally speaking, 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 cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that
there was such risk, he nevertheless goes on to do it." The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case ___ "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13) The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423 ? a three-Judge Bench decision of this Court. It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree. Negligence by professionals In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03) Oft'quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 in the following words: "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is
not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. 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 well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid, Para 8.02) The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well- condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79 summarised the Bolam test in the following words:- "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet." (Charlesworth & Percy, ibid, Para 8.04) The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
Abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110) In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. The decision of House of Lords in Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which other four Lords agreed quoted the following words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 at 217, observing that the words cannot be bettered "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional menThe true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care". Lord Scarman added "a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence." His Lordship further added "that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred." The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard
of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Kabar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence ca be found
proved by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reasonwhether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are found mentioned by Alan Merry and Alexander McCall Smith in their work "Errors, Medicine and the Law" (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions,
misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation the person holding the 'smoking gun'. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Black's Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence. Medical Professionals in Criminal Law The criminal law has invariably placed the medical professionals on a pedestal different from ordinary mortals. The Indian Penal Code enacted as far back as in the year 1860 sets out a few vocal examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person's benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm. There are four exceptions listed in the Section which is not necessary in this context to deal with. Section 93 saves from criminality certain communications made in good faith. To these provisions are appended the following illustrations:Section 88 A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death and intending in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence. Section 92 Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z's death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has
committed no offence. A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit. A has committed no offence. Section 93 A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death. It is interesting to note what Lord Macaulay had himself to say about Indian Penal Code. We are inclined to quote a few excerpts from his speech to the extent relevant for our purpose from "Speeches and Poems with the Report and Notes on the Indian Penal Code" by Lord Macaulay (Houghton, Mifflin and Company, published in 1874). "Under the provisions of our Code, this case would be very differently dealt with according to circumstances. If A. kills Z. by administering abortives to her, with the knowledge that those abortives are likely to cause her death, he is guilty of voluntary culpable homicide, which will be voluntary culpable homicide by consent, if Z. agreed to run the risk, and murder if Z. did not so agree. If A causes miscarriage to Z., not intending to cause Z.'s death, nor thinking it likely that he shall cause Z.'s death, but so rashly or negligently as to cause her death, A. is guilty of culpable homicide not voluntary, and will be liable to the punishment provided for the causing of miscarriage, increased by imprisonment for a term not exceeding two years. Lastly, if A took such precautions that there was no reasonable probability that Z.'s death would be caused, and if the medicine were rendered deadly by some accident which no human sagacity could have foreseen, or by some peculiarity in Z.'s constitution such as there was no ground whatever to expect, A. will be liable to no punishment whatever on account of her death, but will of course be liable to the punishment provided for causing miscarriage. It may be proper for us to offer some arguments in defence of this part of the Code. It will be admitted that when an act is in itself innocent, to punish the person who does it because bad consequences, which no human wisdom could have foreseen, have followed from it, would be in the highest degree barbarous and absurd." (P.419) "To punish as a murderer every man who, while committing a heinous offence, causes death by pure misadventure, is a course which evidently adds nothing to the security of human life. No man can so conduct himself as to make it absolutely certain that he shall not be so unfortunate as to cause the death of a fellow-creature. The utmost that he can do is to abstain from every thing which is at all likely to cause death. No fear of punishment can make him do more than this; and therefore, to punish a man who has done this can add nothing to the security
of human life. The only good effect which such punishment can produce will be to deter people from committing any of those offences which turn into murders what are in themselves mere accidents. It is in fact an addition to the punishment of those offences, and it is an addition made in the very worst way." (p.421) "When a person engaged in the commission of an offence causes death by rashness or negligence, but without either intending to cause death, or thinking it likely that he shall cause death, we propose that he shall be liable to the punishment of the offence which he was engaged in committing, superadded to the ordinary punishment of involuntary culpable homicide. The arguments and illustrations which we have employed for the purpose of showing that the involuntary causing of death, without either rashness or negligence, ought, under no circumstances, to be punished at all, will, with some modifications, which will readily suggest themselves, serve to show that the involuntary causing of death by rashness or negligence, though always punishable, ought, under no circumstances to be punished as murder." (P.422) The following statement of law on criminal negligence by reference to surgeons, doctors etc. and unskillful treatment contained in Roscoe's Law of Evidence (Fifteenth Edition) is classic: "Where a person, acting as a medical man, &c., whether licensed or unlicensed, is so negligent in his treatment of a patient that death results, it is manslaughter if the negligence was so great as to amount to a crime, and whether or not there was such a degree of negligence is a question in each case for the jury. "In explaining to juries the test which they should apply to determine whether the negligence in the particular case amounted or did not amount to a crime, judges have used many epithets, such as 'culpable,' 'criminal', 'gross', 'wicked', 'clear', 'complete.' But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment." (p. 848-849) xxx xxx xxx "whether he be licensed or unlicensed, if he display gross ignorance, or gross inattention, or gross rashness, in his treatment, he is criminally responsible. Where a person who, though not educated as an accoucheur, had been in the habit of acting as a man-midwife, and had unskilfully treated a woman who died in childbirth, was indicted for the murder, L. Ellenborough said that there was no evidence of murder, but the jury might convict of man-slaughter. "To substantiate that charge the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the [most?] criminal inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct which is essential to make out a case of manslaughter." (p.849) A review of Indian decisions on criminal negligence We are inclined to, and we must - as duty bound, take note of some of the relevant decisions of the Privy Council and of this Court. We would like to preface this discussion with the law laid down by
the Privy Council in John Oni Akerele v. The King AIR 1943 PC 72. A duly qualified medical practitioner gave to his patient the injection of Sobita which consisted of sodium bismuth tartrate as given in the British Pharmacopoea. However, what was administered was an overdose of Sobita. The patient died. The doctor was accused of manslaughter, reckless and negligent act. He was convicted. The matter reached in appeal before the House of Lords. Their Lordships quashed the conviction. On a review of judicial opinion and an illuminating discussion on the points which are also relevant before us, what their Lordships have held can be summed up as underi) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.; (ii) That the degree of negligence required is that it should be gross and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. (iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion. .. The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck."(emphasis supplied) Their Lordships refused to accept the view that criminal negligence was proved merely because a number of persons were made gravely ill after receiving an injection of Sobita from the appellant coupled with a finding that a high degree of care was not exercised. Their Lordships also refused to agree with the thought that merely because too strong a mixture was dispensed once and a number of persons were made gravely ill, a criminal degree of negligence was proved. The question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. In Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra (1965) 2 SCR 622, while dealing with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with approval:"To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non." K.N. Wanchoo, J. (as he then was), speaking for the Court, observed that the
abovesaid view of the law has been generally followed by High Courts in India and was the correct view to take of the meaning of Section 304A. The same view has been reiterated in Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904. In Juggankhan v. The State of Madhya Pradesh (1965) 1 SCR 14, the accused, a registered Homoeopath, administered 24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had not studied the effect of such substances being administered to a human being. The poisonous contents of the leaf of dhatura, were not satisfactorily established by the prosecution. This Court exonerated the accused of the charge under Section 302 IPC. However, on a finding that stramonium and dhatura leaves are poisonous and in no system of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm, the act of the accused who prescribed poisonous material without studying their probable effect was held to be a rash and negligent act. It would be seen that the profession of a Homoeopath which the accused claimed to profess did not permit use of the substance administered to the patient. The accused had no knowledge of the effect of such substance being administered and yet he did so. In this background, the inference of the accused being guilty of rash and negligent act was drawn against him. In our opinion, the principle which emerges is that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) 1 SCR 206 was a case under Fatal Accidents Act, 1855. It does not make a reference to any other decided case. The duties which a doctor owes to his patients came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that 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 what treatment to be given 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. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthetic to the patient. The doctor was held guilty of negligence and liability for damages in civil law. We hasten to add that criminal negligence or liability under criminal law was not an issue before the Court as it did not arise and hence was not considered. In the year 1996, there are 3 reported decisions available. Indian Medical Association v. V.P. Shantha and Ors. (1995) 6 SCC 651 is a three-Judge Bench
decision. The principal issue which arose for decision by the Court was whether a medical practitioner renders 'service' and can be proceeded against for 'deficiency in service' before a forum under the Consumer Protection Act, 1986. The Court dealt with how a 'profession' differs from an 'occupation' especially in the context of performance of duties and hence the occurrence of negligence. The Court noticed that medical professionals do not enjoy any immunity from being sued in contract or tort (i.e. in civil jurisdiction) on the ground of negligence. However, in the observation made in the context of determining professional liability as distinguished from occupational liability, the Court has referred to authorities, in particular, Jackson & Powell and have so stated the principles, partly quoted from the authorities :"In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (See : Jackson & Powell on Professional Negligence, 3rd Edn., paras 1-04, 1-05, and 1-56)." In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC 332 a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct amounted to negligence per se actionable in civil law. Dr. Laxman Balkrishna Joshi's case (supra) was followed. Vide para 16, the test for determining whether there was negligence on the part of a medical practitioner as laid down in Bolam's case (supra) was cited and approved. In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was
forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'. M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence:- "The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence." In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC 182 also Bolam's test has been approved. This case too refers to liability for compensation under civil law for failure of sterilisation operation performed by a surgeon. We are not dealing with that situation in the case before us and, therefore, leave it to be dealt within an appropriate case. Before we embark upon summing up our conclusions on the several issues of law which we have dealt with hereinabove, we are inclined to quote some of the conclusions arrived at by the learned authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at the end of the book in the chapter titled 'Conclusion') highlighting the link between moral fault, blame and justice in reference to medical profession and negligence. These are of significance and relevant to the issues before us. Hence we quotei) The social efficacy of blame and related sanctions in particular cases of deliberate wrongdoings may be a matter of dispute, but their necessity in principle from a moral point of view, has been accepted. Distasteful as punishment may be, the social, and possibly moral, need to punish people for wrongdoing, occasionally in a severe fashion, cannot be escaped. A society in which blame is overemphasized may become paralysed. This is not only because such a society will inevitably be backward- looking, but also because fear of blame inhibits the uncluttered exercise of judgment in relations between persons. If we are constantly concerned about whether our actions will be the subject of complaint, and that such complaint is likely to lead to legal action or disciplinary proceedings, a relationship of suspicious formality between persons is inevitable. (ibid, pp. 242-243) (ii) Culpability may attach to the consequence of an error in circumstances where substandard antecedent conduct has been deliberate, and has contributed to the generation of the error or to its outcome. In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done. There is a tendency to confuse the reasonable person with the error-free person. While nobody can avoid errors on the basis of simply choosing not to make them,
people can choose not to commit violations. A violation is culpable. (ibid, p. 245). (iii) Before the court faced with deciding the cases of professional negligence there are two sets of interests which are at stake : the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. (ibid, p.246). A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient is entitled. The effect of this on the doctor-patient relationship is distorting and will not be to the benefit of the patient in the long run. It is also unjustified to impose on those engaged in medical treatment an undue degree of additional stress and anxiety in the conduct of their profession. Equally, it would be wrong to impose such stress and anxiety on any other person performing a demanding function in society. (ibid, p.247). While expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks. (ibid, p. 247). (iv) Conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrong doing, are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness. (ibid, p.248). (v) Blame is a powerful weapon. Its inappropriate use distorts tolerant and constructive relations between people. Distinguishing between (a) accidents which are life's misfortune for which nobody is morally responsible, (b) wrongs amounting to culpable conduct and constituting grounds for compensation, and (c) those (i.e. wrongs) calling for punishment on account of being gross or of a very high degree requires and calls for careful, morally sensitive and scientifically informed analysis; else there would be injustice to the larger interest of the society. (ibid, p. 248). Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society. Conclusions summed up We sum up our conclusions as under1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. 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. 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. (6) The word 'gross' has not been used in Section 304A of IPC, yet it is settledthat 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 304A of the IPC has to be read as qualified by the word 'grossly'. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted vide para 27 of the report). Guidelines re: prosecuting medical professionals As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, 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. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. 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 investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. Case at hand Reverting back to the facts of the case before us, we are satisfied that all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of nonavailability 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, probably the hospital may be liable in civil law (or may not be we express no opinion thereon) but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam's test. Result The appeals are allowed. The prosecution of the accused appellant under Section 304A/34 IPC is quashed. All the interlocutory applications be treated as disposed
Medical Law Reporter
2007 Med LR 189
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Hon’ble Justice Mr. S.N. Kapoor, Presiding Member Hon’ble Mr. B.K. Taimni, Member First Appeal No. 528 of 1997 Decided on 17-10-2006
Kurien Abraham and Others vs. Dr. Omana Jacob and Others
MEDICAL NEGLIGENCE – DELIVERY OF CHILD – No Doctor attending on patient resulting in her death – Deficiency-in-service – Hospital directed to pay Rs. 2,70,000 along with interest to complaints.
SUMMARY OF FACTS
The patient, aged 27 years, on getting pregnant for the first time, being under care of first respondent, attending gynaecologist from the beginning, was admitted in the hospital for the delivery of child. The patient was removed to the labour room at 8.30 a.m. but the doctor was not seen after that either by the patient or by her relatives. A baby was delivered but the mother having developed certain complications after the delivery died on the same evening. The relations of the patient filed a complaint alleging deficiency in rendering medical service, claiming compensation of Rs. 15 lakhs. The State Commission holding the hospital medically negligent for absence of the attending gynaecologist from the beginning directed it to pay Rs. 25,000 along with cost of Rs. 2,000 to the complainants. No appeal filed by the doctors or the hospital. However, in appeal filed by the complainants, the National Commission enhanced the amount of compensation to Rs. 2,70,000 considering that the deceased patient was a young lady, aged 27 years who was a qualified ?graduate High School teacher‘, earning Rs. 3,000 per month in year 1995.
HELD [NATIONAL COMMISSION]
Leading allegation amounting to medical negligence is related to the nonattendance of the first respondent Dr. Omana Jacob from 8.00 a.m. on 17.11.1995 onwards as she was the attending gynaecologist from the beginning as far as the deceased was concerned. The material brought on record clearly shows that no doctor was available to take care of the deceased till late in the afternoon, when she was attended to by the second respondent Dr. Jossetta. Ld. State Commission.
As per material on record, the second respondent Dr. Jossetta one of the Sr Gynaecologists admitted before the State Commission that on 17-11-1995, she had ?Theatre duty‘ and went to the labour room where the patient was lying only after she was informed of the condition of the deceased at the post-delivery stage and after serious complications had arisen, which resulted in the death of the patient. According to both respondents 1 and 2 it was Dr. Laila George who was on duty yet there was no reference to this in the written version filed by them before the State Commission or in the material on record, thus, clearly leading the State Commission to conclude that from the time the deceased was moved into labour room and till the time she had serious complications there was no doctor attending on the
deceased which as rightly held by the State Commission is a clear case of deficiency resulting in the death of the deceased.
In the above circumstances, State Commission, in our view, rightly held the 5th respondent guilty of medical negligence. No appeal has been filed by the respondents which reassure us that they had accepted their medical negligence.
This is a case of death by negligence on the part of the respondents and appeal has been filed by the appellants/complainants for enhancement of compensation. We also see in the complaint filed before the State Commission they had asked for a compensation of Rs. 15 lakhs, of which they have not given any break-up and State Commission has also shown no ground based on which they have arrived at a figure of Rs. 25,000 awarding as compensation for loss of life of 27 years old lady who was a qualified ?graduate High School teacher‘ and there is no material brought on record to rebut this. In such circumstances, we find that the State Commission has not awarded the compensation commensurate with the loss caused to the appellants. In view of above, in our view, the deceased who was a qualified graduate High School teacher would be earning Rs. 3,000 per month way back in 1995. 50% is set off as expenditure and balance 50% would be Rs. 1500 per month, meaning thereby for a year she would be contributing/saving Rs. 18,000 using a multiplier of 15, the appellants would be entitled to a sum of Rs. 2,70,000 in all, as she died at a young age of 27 years. We have not taken into calculation possible revision in payscales/career advancement in future . IMPORTANT LAW POINT + Where from the time the pregnant lady was moved into labour room and till the time she had serious complications resulting in her death there was no doctor attending on the deceased patient, it was rightly held as a clear case of deficiency-in-service.
Case laws Deficient service Contrasted with negligent service Medics and paramedics Medical council of India’s function Case studies for India’s function Who can avail of the service? Restrictions on the service Orders of the court Remedial measures Case laws miscellaneous Judgments and Orders Directions- Examples miscellaneous
Certificate Acknowledgements Prologue Case Law Index Case study Index Prime Time matter Epilogue Select bibiliographyhttp://www.virtualpune.com/citizen-centre/html/consumer_rights.shtmlhttp://answers.yahoo.com/question/index?qid=20080416034852AAh2F2Lhttp://wiki.answers.com/Q/Do_you_think_that_a_customer_and_consumer_ are_differenthttp://www.blurtit.com/q135276.htmlhttp://www.medindia.net/doctors/cpahttp://www.legalserviceindia.com/article/l178-Medical-Negligence.htmlhttp://www.halsburys.in/medico-legal-aspects-of-consumer-lawconcering.htmlhttp://www.indiankanoon.org/doc/871062/http://www.legalpundits.com/
Cross reference Index
doc_552245834.docx
This is a documentation on consumer protection in the pharma industry by defining types of consumers, complaints, structure of consumer forum, regulation of the medicine industry.
Consumer Protection Introduction The industrial revolution and the development in the international trade and commerce has led to the vast expansion of business and trade, as a result of which a variety of consumer goods have appeared in the market to cater to the needs of the consumers and a host of services have been made available to the consumers like insurance, transport, electricity, housing, entertainment, finance and banking. A well organised sector of manufacturers and traders with better knowledge of markets has come into existence, thereby affecting the relationship between the traders and the consumers making the principle of consumer sovereignty almost inapplicable. The advertisements of goods and services in television, newspapers and magazines influence the demand for the same by the consumers though there may be manufacturing defects or imperfections or short comings in the quality, quantity and the purity of the goods or there may be deficiency in the services rendered. In addition, the production of the same item by many firms has led the consumers, who have little time to make a selection, to think before they can purchase the best. For the welfare of the public, the glut of adulterated and sub-standard articles in the market has to be checked. Inspite of various provisions providing protection to the consumer and providing for stringent action against adulterated and sub-standard articles in the different enactments like Code of Civil Procedure, 1908, the Indian Contract Act, 1872, the Sale of Goods Act, 1930, the Indian Penal Code, 1860, the Standards of Weights and Measures Act, 1976 and the Motor Vehicles Act, 1988, very little could be achieved in the field of Consumer Protection. Though the Monopolies and Restrictive Trade Practices Act, 1969 arid the Prevention of Food Adulteration Act, 1954 have provided relief to the consumers yet it became necessary to protect the consumers from the exploitation and to save them from adulterated and sub-standard goods and services and to safe guard the interests of the consumers. In order to provide for better protection of the interests of the consumer the Consumer Protection Bill, .1986 was introduced in the Lok Sabha on 5th December, 1986
The Consumer Protection Act, 1986 is a milestone in the history of socio-economic legislation in the country. It is one of the most progressive and comprehensive piece of legislations, enacted for the protection of consumers. It was enacted after studying thoroughly the consumer protection laws in a number of countries and in consultation with representatives of consumers, trade and industry and extensive discussions within the Government.
The main objective of the act is to provide for the better protection of consumers. Unlike existing laws, which are punitive or preventive in nature, the provisions of this Act are compensatory in nature. The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, and reliefs of a specific nature and award of compensation, wherever appropriate, to the consumer. The Act has been amended in 1993, both to extend its coverage and scope and to enhance the powers of the redressal machinery.
Who is a consumer? All of us are consumers of goods and services. According to the Consumer Protection Act, the word "consumer" has been defined separately for "goods" and "services". For the purpose of "goods", a consumer means a person belonging to the following categories: (i) One who buys or agrees to buy any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment (ii) It includes any user of such goods other than the person who actually buys goods and such use is made with the approval of the purchaser. Note: - A person is not a consumer if he purchases goods for commercial or resale purposes. However, the word "commercial" does not include use by consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment. For the purpose of "services", a "consumer" means a person belonging to the following categories: (i) One who hires or avails of any service or services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment (ii) It includes any beneficiary of such service other than the one who actually hires or avails of the service for consideration and such services are availed with the approval of such person. Consumer vs. Customer Consumer is one who consumes the products and services generally and the customer is one who purchases goods or services from another and is
accustomed to use your products/services regularly. Both are same generally but the word consumer is more legally used and the word customer is more commercially used. There are consumer protection laws and not customer protection laws. Customer is also a consumer. Every customer is a consumer but not every consumer a customer.. Thus customer is a sub set of consumer
Types of consumer: Consumer is the key figure in market and around him all the activities are carried on. The consumer can be further divided in to two classes. 1: Personal Consumer or Individual Consumer: Personal consumer is that consumer who purchases goods and services for his own personal consumption or uses. We can say that consumer is also called to be the ultimate or final person because when the marketer produces the goods then he hand over the goods to personal consumer for final consumption. For example: Mr. X buys shaving cream for his personal use so he is said to be personal consumer. 2: Organizational Consumer or Industrial Consumer: Organizational consumer consists of the government agencies, business organization, non governmental organization (NGO), firms and different types of manufacturing companies who purchases the goods and services in order to run the business of the firm or business concern or business organization. For example: A manufacturing organization let suppose Bannu woolen mills purchases raw
materials in order to produce woolen cloths in winter season. The main purpose of the purchase and selling of Bannu woolen mills just to operate the mill or business of the concern is getting profit or not. Salient features of the Consumer Protection Act
The Act applies to all goods and services, unless specifically exempted by the Central Government. ? ? It covers all the sectors whether private, public or cooperative. The provisions of the Act are compensatory in nature.
It enshrines the following rights of consumers: ? ? ? ? ? ? ? Right to be protected against the marketing of goods and services which are hazardous to life and property. Right to be informed about the quality, quantity, potency, purity, standard and price of goods or services so as to protect the consumer against unfair trade practices; Right to be assured, wherever possible, access to a variety of goods and services at competitive prices; Right to be heard and to be assured that consumers' interests will receive due consideration at appropriate forums; Right to seek redressal against unfair trade practices unscrupulous exploitation of consumers; and Right to consumer education The Act envisages establishment of Consumer Protection Councils at the Central and State levels, whose main objects will be to promote and protect the rights of the consumers.
Consumer Protection Act (CPA) 1986 & Its Medical Profession related Provisions (After The Judgment Honorable Supreme Court of India dated 13-11-95) Consumer means Any "person" who hires or ails of nay services for a consideration which has been paid or promised or partly paid and partly promised any include any beneficiary of such services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.
Comments Consideration means fees/payment. Fees may have been fully paid in cash or cheques, or undertaking that it will be paid, which is accepted by the doctor/hospital. The fees may have been given partly (as advance) with the understanding that the remaining bill will be paid subsequently. The payment may be done by the patient himself or by someone else for the patient, e.g. father for his child, husband for wife, any person for someone. A person who receives medical treatment in Government or Charitable Hospital, which provides treatment to one and all free of cost, is not a consumer under the Act. A person who receives treatment in a Government or charitable hospital which provides treatment free of cost to some and on consideration to some would be a consumer, even if he has not paid any fees. In case of death of patient who is a consumer, legal heirs (representatives), of the decreased will be considered as "consumer". If the payment has been made by any person who is not a legal heir of the deceased he too will considered as 'consumer'. Complainant means Any allegation, in writing made by a complaint that the service hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect. As per the definition set out in Section 2 (1) (b), Consumer Protection Act, 1986, a person can be a 'complainant' only within the definition of a 'consumer' contained in Section 2 (1) (d) of the said Act, and not when such person falls outside the purview of the expression 'consumer.' However where a general insurance policy insurer pays the claim, than such insurance company stands subrogated to the rights and remedies of the claimant in respect of loss or damage to the goods. Such insurer alongwith the insured can maintain a complaint as has been held by the National Commission
What constitutes a complaint? Under the Act, a complaint means any allegation in writing, made by a complainant in regard to one or more of the following:-
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Any unfair trade practice, as defined in the Act or restrictive trade practices like tieup sales adopted by any trader. One or more defects in goods: when goods are hazardous to life and safety, when used, are being offered for sale to public in contravention of provisions of any law for the time being in force. Deficiencies in services. A trader charging excess of price: o o o Fixed by or under any law for the time being in force; or Displayed on goods; or Displayed on any packet containing such good;
Who can file a complaint?
1. A consumer 2. Any voluntary consumer organization registered under the Societies Registration Act, 1860 or under the Companies Act, 1956 or under any other law for the time being in force. 3. The Central Government 4. The State Government or Union Territory Administrations. 5. One or more consumers on behalf of numerous consumers who are having the same interest
Deficiency means Any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to nay service. Person include 1. A firm whether registered or not; 2. A Hindu undivided family; 3. A co-operative society; 4. Every other association of persons whether registered under the Societies Registration Act, 1860, or not.
Service means Service of any description which is made available to potential users and includes 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 nay service free of charge or under a contract of personal services.
Comments On the meaning of the word "service" in relation to medical profession, the Supreme Court in Indian Medical Association v. V.P. Shantha & Ors. (supra) came to the following conclusions:
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Service rendered to a patient by medical practitioner (except)where the doctor rendered service free of charge to every patient or under a contract of personal service), by way 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. The expression 'contract of personal service' in section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in section 2(1) (o) of the Act. Service render at a Government hospital/health centre/dispensary or at non-government hospital/nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service- is outside the purview of the expression "service" as defined in section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. Service rendered at a non-government hospital/nursing home where charges are required to be paid by the person availing such services falls within the purview of the expression 'service' as defined in section 2(1) (o) of the Act.
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Service rendered at Government hospital/Health centre/ Dispensary or at a \n non-government Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, by such doctors and hospitals would also be 'service' and the recipient a 'consumer' under the Act. Service rendered by a medical or hospital/nursing home cannot be regarded as service rendered free of charge, if the persons availing the service has taken an insurance policy for medical care where under the policy charges for consultation diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in section 2(1) (o) of the Act.
Similarly, where as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family member dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under section 2(1) (o) of the Act. Structure of Consumer Forums / Commissions and Their Jurisdictions SUPREME COURT (Final Appeal)
Appellate Authority over State Commission Revisional Jurisdiction
NATIONAL COMMISSION
Original Jurisdiction OverRs.20,00,000
Appellate Authority for District Forum Suo moto Revision
STATE COMMISSION
Original Jurisdiction over Rs. 5,00,000 up to Rs. 20,00,000
DISTRICT FORUM
Original Jurisdiction up to Rs. 5,00,000
The maximum time limit for a claim to be filed under CPA is 2 years from the date of occurrence of the cause of action. There is no court fees to be paid to file a complaint in a Consumer Forum / Commission. Further, a complainant/opposite party can present his case on his own without the help of a lawyer. As per the Consumer Protection Rules, 1987, a complaint filed in the Consumer Forum / Commission shall be adjudicated, within a period of 90 days from the date of notice by opposite party and within 150 days if it requires analysis or testing of commodities
Following are the important Schemes for Consumer Protection : ? ? ? ? Every year the Government makes budgetary provisions for the Consumer Welfare Fund and it is spent on Consumer Protection related matters. There are many Voluntary Consumer Organisations. Since these contribute to the welfare of the consumers and create awareness, such organisations are given assistance for their work. The Central Government has started a Scheme, under which the Voluntary Consumer Organisations, which do commendable work in the Consumer Protection field are granted Rs.50,000/-,Rs.40,000/- & Rs.30,000/- along with Merit Certificate. Similarly, there is National Youth Scheme, under which the Youths between 15-35 years age-group are given Rs.20,000/-,Rs.15,000/- & Rs.10, 000/- along with Merit Certificate for their contribution in consumer field. The State Government recommends the names received from the Consumer Organisations to the Central Government. To create awareness in the School/College students, lectures are given in each district and for that purpose visiting lecturers are appointed. Apart from the above, the Government has created Consumer Protection Cells at the District level under the Chairmanship of the Collector. The Cell consists of 17 unofficial members from different Consumer Organizations, representatives of Gas dealers, petrol dealers & Traders' Organizations apart from the Senior Officers at District level connected with consumer goods/services. The meetings of the Cell are held every month and consumer problems are solved on the spot and many other problems are settled after regular follow-up
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THE LEGAL AVENUES (other than CPA) AVAILABLE TO AGGRIEVED PATIENTS TO SUE AGAINST HEALTH PROFESSIONALS. a) Medical Council of India and Dental Council of India. b) Civil Courts. c) MRTP (Monopolies and Restrictive Trade Practices Commission) d) Public Interest Litigation. e) Sections of Indian Penal Code, 1860 Regulation of The Practice of Medicine Indian Medical Council Act,1956
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Regulates the profession of Allopathic medicine by constituting Medical Council of India (MCI) and the State Medical Councils. Authorizes the Medical Council of India (MCI) to recognize the medical qualifications granted by any Authority or Institution of India or other countries. Authorized the MCI to maintain a register of medical practitioners to be known as the Indian Medical register, which consists of the entries of all the State Registers of medical practitioners. Empowers the State Medical Councils to punish persons who falsely claim to be registered or misuse titles and when medicine is practiced by unregistered persons, with fine or imprisonment or both. Authorizes the MCI to prescribe standards of professional conduct and etiquette or Code of Ethics for medical practitioners. The violations of these standards constitute infamous conduct (professional misconduct).
State Medical Councils are empowered to take disciplinary action when prescribed standards of professionals conduct and etiquette or Code of Ethics are not observed by the doctors and violations of which constitute professional misconduct / Infamous conduct.
Under the following circumstances, a doctor can be temporarily or permanently debarred from practicing medicine.
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Improper or indecent conduct towards the patient Conviction in a Court of Law Failure or dereliction of duty in giving professional certificates, reports and other documents Contravening the Drugs and Cosmetics Act, 1940 Selling scheduled poison Performing or abetting an illegal operation Receiving or giving commission or using touts Employing unqualified persons Associations with (drug) manufacturing firms Advertisements Running shops (dispensing chemists) etc. Failure to give professional service for certain things on religious grounds.
An aggrieved patient can complain to the State Councils about a registered medical practitioner about an alleged wrong committed by him. The Council initiates proper hearing where the concerned doctor is given adequate opportunities to represent his side. If it arrives at the conclusion that the doctor has indeed committed an act, which involves an abuse of professional position that might reasonably by regarded as disgraceful or dishonourable by professional men of good repute and competence, the doctor is either given a warning notice or temporarily or permanently debars him for practicing medicine. The Council does not have any statutory powers to award any compensation to the aggrieved patient or legal heirs. The Indian Medical Council Act, 1956 also provides certain privileges to all the registered medical practitioners. Rights and Privileges of Registered Medical Practitioners Conferred by the Indian Medical Council Act, 1956.
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Right to choose a patient Right to add title, descriptions of the academic qualifications to the name Right to practice medicine Right to dispense medicines Right to possess and supply dangerous drugs to the patients
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Right Right Right Right
to recovery of fees for appointment to public and local hospitals to issue medical certificates to give evidence as an expert in a Court of Law
Civil Courts The aggrieved patients can file a case against the doctor for monetary compensation for which the patient to pay court fees that depends upon the compensation sought. Probably, due to near acceptance of medical negligence as inevitable by the patients and their relatives or local settlements, not many cases have reached the apex court of law in the past. The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act, 185536 and the Section 357 of Cr. P.C., 197337. But to avail it, an aggrieved patient have to wait for years and spend considerable amount of money on litigations. The civil court cases take care the route of Sub-Court, District Court, High Court and Supreme Court. Monopolies and Restrictive Trade Practices Act (MRTP), 1969 This Act is the precursor of CPA, 1986. Before the advent of CPA, this Act was the only resource to consumers against the unfair trade practices. The commission that looks into the disputes brought under MRTP Act based in New Delhi. Public Interest Litigation (PIL) An aggrieved patient can directly approach the High Court or the Supreme Court when his/her grievances was not properly redressed. PILs are usually resorted when public health programmes are not implemented properly. Some of the landmark judgements on Supreme Court on health are the result of PILs. Indian Penal Code and Medical Negligence Indian Penal Code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpraxis in India. A physician can be charged with criminal negligence when a patient dies
from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross negligence. Before the administration of anaesthesia or performance of an operation, the medical man is expected to follow the accepted precautions. In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is, however, not liable for an error judgment. The law expects a duly qualified physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cures. It has long been recognized that criminal liability of a physician may result from a high degree of negligent conduct. What the law calls criminal negligence is largely a matter of degree; it is incapable of a precise definition. To prove whether or not it exists is like chasing a mirage. It requires that any of the following to be established in a case of criminal medical negligence. "Gross Lack of competency or gross inattention, or wanton indifferences to the patient's safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient." (Hampton v State 38; State v Lester)39 In R. v Bateman (1925)40, Dr. Bateman was prosecuted for manslaughter and the charges of negligence made against him were: i) Causing the internal ruptures in performing the operations of 'version'; ii) Removing part of the uterus along with the placenta; iii) Delay in sending the patient to the infirmary. The trial court convicted him. But the Court of Appeal held: " ... in order to establish criminal liability, the facts must be such that, .. the negligence of the accused went beyond a mere matter of compensation between subjects and should such disregard for the life and safety of others as to amount to a crime against the state and conduct punishment."41 When a FIR (First Information Report) is filed against a doctor for the death of a patient who was under his treatment, under this Indian Penal Code Section 304-A42 the doctor can be arrested. A doctor charged under this section can obtain bail and if proved guilty, the doctor can be punished with
a maximum of two years imprisonment or fine or both. But, if the patient is alive, the doctor is charged under the Indian Penal Code Section 337 and 33843. The Indian Courts have been very careful not to hold qualified physicians criminally (instances of quacks for criminal negligence are there) liable for patients' deaths that are the result of a mere mistake of judgment in the selection and application of remedies and when the death resulted merely from an error of judgment or an inadvertent death.
CONSUMER DISPUTES REDRESSAL AGENCIES
Redressal Forums have been established as three different levels:
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"District Forum" by State Government. At least one in each district in certain cases on District Forum may cover 2 or more district, or there may be two or more District Forums in one District. "State Commission" by State Government. "National Commission" (National Consumer Disputes Redressal Commission) by Central Government.
DISTRICT FORUM This shall consists of:
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a person who is, or has been or is qualified to be a District Judge, who shall be its President two other members who shall be persons of ability, integrity and standing and have adequate knowledge or experience of or shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman.
Jurisdiction of District Forum
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The District Forum shall be jurisdiction to entertain complaints where the value of goods or services and the compensation, if any, claimed does not exceed rupees five lakhs. A complaint shall be instituted in District Forum within the local limits of whose jurisdiction:
a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or caries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce, in such institution, or c) The cause of action, wholly or in part, arises. Manner in which complaint shall be made A complaint may be filled with a District Forum by:
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The consumer to whom such service is provided or is agreed to be provided Any recognized consumer association, whether the consumer to whom the service is provided or is agreed to be provided is a member of such association or not One or more consumer, where there are numerous consumers having the same interest, with the permission of the district forum, on behalf of, or for the benefit of, all consumers so interested The Central or the State Government.
Procedure on receipt of complaint a. The District Forum shall on receipt of a complaint: a) Refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. b. Where the opposite party, on receipt of a copy of the complaint, denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute i.) On the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint; or ii.) On the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent
his case within the time given by the Forum; In addition to procedure prescribed under section 13 (2) of the Act, further procedure has been provided for under the respective State Rules, which are almost identical in each state. Such further procedure as provided in Consumer Protection (Rajasthan) Rules, 1987 is as under: 1. Where the opposite party admits the allegation made by the complainant, the District Forum shall decide the complaint on the basis of the case and documents present before it. 2. If during the proceeding conducted under section 13 of the Act, the District Forum fixes a date for hearing of the parties, it shall be obligatory on the complainant and opposite party or its authorized agent to appear before the District Forum in such date of hearing or any other date to which hearing could be adjourned. 3. Where the complainant or his authorized agent fails to appear before the District Forum on Such day, the District Forum may in its discretion either dismiss the complaint in default or if a substantial portion of the evidence of the complainant has already been recorded, decide it on merits. Where the opposite party or its authorized agent fails to appear on the day of hearing, the District Forum may decide the complaint ex-parte. 4. Where any party to a complaint to whom time has been granted fails to produce his evidence or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the complaint, for which time has been allowed, the District Forum may notwithstanding such default: a) If the parties are present, proceed to decide the complaint forthwith; or b) If the parties or any of them is absent, proceed as mentioned above in sub-rule 5. The District Forum may, on such terms as it may think fit at any stage, adjourn the hearing of the complaint but more than one adjournment shall ordinarily be given and the complaint should be decided within 90 days from the date of notice received by the opposite where complaint does not require analysis or testing of the foods and within 150 days if it requires analysis or testing of the goods. DISTRICT FORUM Powers of Civil Court to District Forums The District Forum is also vested, under section 13(4), with the following powers as are vested in a civil under the Code of Civil Procedure 1908, while
trying a civil suit in the following matters: 1. the summoning and enforcing attendance of any defendant or witness and examining the witness on oath; 2. the discovery and production of any document or other material object producible as evidence; 3. the reception of evidence on affidavits; 4. the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from the appropriate laboratory or from any other relevant source; 5. issuing of any commission for the examination of any witness. Additional powers requiring production of documents, etc. The National Commission, State Commission and District Forums are also vested with additional powers, under rule 10 of the Consumer Protection Rules, 1987 to require any person: 1. (a) to produce before, and allow to be examined and kept by an officer of the National Commission, the State Commission or the District Forum, as the case may be, specified in this behalf, such books, accounts, documents or commodities in the custody or under the control of the persons so required as may be specified or described in the requisitions, if the examination of such books, accounts, documents or commodities are required for the purpose of this Act; (b) to furnish to an officer so specified, such information as may be required for the purpose of this Act. 2. (a) Where during any proceedings under this Act the National Commission, the State Commission or the district Forum as the case may be has any ground to believe that any book, any paper, commodity, or document which may be required to be produced in such proceeding are being, or may be destroyed, mutilated, altered, falsified or secreted, it may, by writing order authorized any officer to exercise the power of entry and search of any premises. Such authorized officer may also seize such books, papers, documents or commodities as are required for the purpose of this Act: Provided that such seizure shall be communicated to the National Commission or the District Forum, as the case may be, as soon as it is made or within a period not exceeding 72 hours of making such seizure; (b) the National Commission, the State Commission or the District Forum as the case may be, on examination of such seized documents or commodities, as the case may be, may order the retention thereof or may return it to the party concerned.
Finding of the District Forum If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint about the services are allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely: 1. to remove the defect pointed out by the appropriate laboratory from the goods in questions; 2. to replace the goods with new goods of similar descriptions which shall be free from defect; 3. to return to the complainant the price, or as the case may be, the charges paid by the complainant; 4. to pay such amount as may awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party; 5. to remove the defects or deficiencies, in the services in question; 6. to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them; 7. not to offer the hazardous goods for sale; 8. to withdraw the hazardous goods from being offered for sale; 9. to provide for adequate costs to parties. Comments The provisions relating to goods may apply in case of supply of defective medicines, equipments, blood etc. Appeal against orders of the District Forum Any person aggrieved by an order made by the District Forum may appeal against such order to the State Commission within a period of 30 days from the date of the order. The State Commission may entertain an appeal after 30 days, if it is satisfied that there was sufficient cause for not filing it within that period. The expression 'date of order' should be constructed as date of knowledge of the order, i.e., when copies of the order are received by the party STATE COMMISSION It shall consists of: 1. a person who is or has been judge of a High Court, appointed by the State Government, who shall be its President;
2. two other members with qualifications and experience (as for District Forum) within the State; 3. revision petitions against the District Forum. Procedure to be followed by State Commission Procedure of the State Commission for entertaining original complaints is the same as for District Forum Procedure of hearing appeal by State Commission The procedure for hearing of appeals by the State Commission has been prescribed by the State Rules framed by the States which are almost identical for each State. Reference may be made to the relevant State Rules by the readers of that State. Appeal may be decided ex parte in case the opposite party fails to file a reply to the appeal and /or fails to appear himself or through his agent/advocate on the date fixed. It may be decided on merit, in case the appellant fails to appear on the date fixed for hearing. Appeals against orders of State Commission Any person aggrieved by an order made by the State Commission may appeal against such order to the National Commission within a period of 3 days. The National Commission may entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period. NATIONAL COMMISSION This shall consists of : 1. a person who is or has been a judge of the Supreme Court to be appointed by the Central Government who shall be its President. (No appointment under this clause shall be made except after consultation with the Chief Justice of India). 2. 4 other members (qualification: As for District Forum/State Commission), one of whom shall be a woman. Jurisdiction of the National Commission The National Commission shall have jurisdiction: 1. to entertain (a) complaints where the value of goods services & compensation if nay, claimed exceeds rupees 20lakhs; and (b) appeals against the orders of any State Commission. 2. to entertain revision petitions against the State Commission.
Procedure to be followed by the National Commission A complaint containing the following particulars shall be presented by the complainant in person or by his agent to the National Commission or be sent by registered post, addressed to the National Commission: 1. the name, description and the address of the complainant; 2. the name, description and address of the opposite party or parties, as the case may be, so far as they can be ascertained; 3. the facts relating to the complaint and when and where it arose; 4. documents in support of allegations contained in the complaint; 5. the relief which the complainant claims. The remaining procedure is similar to that for State Commission. Procedure for filing and hearing of appeals has been prescribed in Rule 15 of the Consumer Protection Rules, 1987. Appeal against orders of the National Commission Any person aggrieved by an order made by the National Commission, may appeal against such order to the Supreme Court within 30 days from the date of the order. The Supreme Court ay entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period. Limitation Period The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed in within 2 years from the date on which the cause of action has arisen. In case there are sufficient grounds for not filing the complaint within such period delay may be condoned at the discretion of the Consumer Forum/Commission. Dismissal of Frivolous or Vexatious Complaints Where a complaint instituted before the District Forum, the State Commission or the National Commission, as the case may be, is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complaint shall pay to the opposite party such cost, not exceeding rupees 10,000 as may be specified in the order. Penalties Where a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission, as the case may be, such person or complainant shall be
punishable with imprisonment for a term which shall not be less than one month but which may extend to 3 years, or with fine which shall not less than 2,000/- rupees but which may extend to 10,000 rupees, or with both. In exceptional circumstances the penalties may be reduced further. Consumer Protection Councils The Act provides for the establishment of: 1. The Central Consumer Protection Council (The Central Council). 2. The State Consumer Protection Council (The State Council). Objectives of the Council shall be: To promote and protect the rights of the consumers such as:a) the right to be protected against the marketing of services which are hazardous to life and property; b) the right to be informed about the quality, quantity, potency, purity, standard and price of services so as to protect the consumer against unfair trade practices; c) the right to be assured, whenever possible, access to a variety of services at competitive prices; d) the right to be heard and to assured that consumer‘s interest will receive due considerations at appropriate forums; e) the right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers; and f) the right to consumer education . The Central Council shall consists of 150 members. The Minister in-charge of the Consumer Affairs in the Central Government shall be its Chairman. The
State Council shall be chaired by Minister-in-charge of Consumer Affairs in the State Government.
The resolutions passed by these Councils are recommendatory in nature LANDMARK CASE The NCDRC‘s order did not accept the claim of medical professionals who argued that the doctor-patient relationship is similar to master – servant relationship, which is a contract of personal service that should be exempted from CPA. But the NCDRC‘s order decreed that the doctor – patient relationship is a contract for personal service and it is not master – servant relationship. It is also said that the doctor is an independent contractor and
the doctor, like the servant, is hired to perform a specific task. However, the master or principal (the hirer) is allowed to direct only what is to be done, and done, and when. The ?how‘ is left up to the specific discretion of the independent contractor (doctor). So, the doctor-patient relationship is a contract for personal service and as such, cannot be excluded from CPA. Indian Medical Association VS. V.P. Shantha & Ors. PETITIONER: INDIAN MEDICAL ASSOCIATION Vs. RESPONDENT: V.P. SHANTHA & ORS. DATE OF JUDGMENT13/11/1995 BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) KULDIP SINGH (J) HANSARIA B.L. (J) CITATION: 1996 AIR 550 1995 SCC (6) 651 JT 1995 (8) 119 1995 SCALE (6)273 ACT: JUDGMENT: J U D G M E N T S.C. AGRAWAL, J. : Leave granted in SLP (C) Nos. 18497/93 and 21755/94. Delay condoned and leave granted in SLP (C) Nos. 18445- 73/94. HIGHLIGHTS As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, 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.
WYETH V. LEVINE
The New York Times has called today‘s US Supreme Court ruling in the Wyeth vs. Levine suit the ?most important business case in years.? On April 7, 2000, Diana Levine, a professional musician, went to the hospital to treat a migraine headache and, after being injected with a drug manufactured by Wyeth, left with injuries that led quickly and irreversibly to the loss of her right arm. Specifically, Levine‘s arm was amputated because Wyeth‘s drug Phenergan, prescribed to alleviate nausea associated with a migraine headache, reached her arteries. Phenergan was given to Levine using a method of administration that was permissible under Wyeth‘s label instructions, even though Wyeth knew this method increased risk of contact with arteries and serious injuries. The drug was administered intravenously through a technique known as direct IV, or ?IV push.? In this method, a syringe pushes medication directly into the patient‘s vein. Wyeth had known for decades that when Phenergan is administered by the IV push method, even by experienced clinicians, inadvertent arterial contact can result. This is in contrast to administration through a free flowing IV bag, which reduces the risk of inadvertent arterial injection because the nurse or physician can be more certain that the needle has been placed in a vein. A solution dripping from an IV bag will not flow
freely into an artery due to back pressure from the patient. Wyeth had also known that when Phenergan comes in contact with an artery, the artery dies, and necrosis, gangrene, and amputation result. Four experts testified at the state level that if Phenergan is used intravenously, it should be done only through a hanging IV bag and that the label should have warned against the use of IV push. However Phenergan‘s label did not contain any warnings regarding use of the IV push method. And, as the Vermont Supreme Court held, the FDA never made any determination as to whether the label should have warned against the IV push method. Because the IV push method was used to administer Phenergan to Levine, the drug penetrated her artery. For seven weeks after the injection, she suffered unimaginable physical and emotional pain as she watched her right hand turn black and die. In short, as a result of being subjected to an unsafe and unnecessary method of administration of a drug to curb nausea, Levine endured two amputations. She first lost her right hand and then her right arm up to the elbow, harming her profession and lifelong passion to be a musician and play the guitar. Representatives for Diana Levine argued that Phenergan‘s labeling lacked sufficient warnings, and that the lack of safety information led to the improper delivery of the drug. Phenergan is an antihistamine that is also used as an anti-nausea treatment. Levine was given the drug via IV push, but rather than inject into the vein, the drug was shot into an artery, which can lead to gangrene. The drug‘s labeling includes four separate warnings against inadvertent injection into the artery, including a statement in boldface capital letters that reads: "INTRA-ARTERIAL INJECTION [CAN] RESULT IN GANGRENE OF THE AFFECTED EXTREMITY." The plaintiff‘s lawyers argued that the warning wasn‘t sufficient, and that Wyeth should have contraindicated intravenous use—although FDA had never required such a change, and had even specifically required the drugmaker to retain the language about arterial injection in a review of the label in 1997, a year before Levine‘s mishap. Wyeth‘s lawyers argued that FDA makes it so difficult to change labeling after approval that it wouldn‘t have been possible to alter. The US Supreme Court disagreed. ?The argument that Levine‘s state-law claims are preempted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected,? the verdict stated. ?Although a manufacturer generally may change a drug label only after the FDA approves a supplemental application, the agency‘s ?changes being
effected‘ regulation permits certain pre-approval labeling changes that add or strengthen a warning to improve drug safety.? ?The decision reflects a clear recognition by the Supreme Court that the responsibility to provide adequate information about the risk associated with prescription drugs lies with the manufacturer and not FDA,? said Jeff Grand, an attorney for Seeger Weiss. ?One of the more compelling aspects of the decision was recognition that the manufacturer needs to provide new information about the drugs risk and include not new data, but new analysis of old data. As a safety risk emerges, it‘s the responsibility of the drug companies to provide that information to the medical community and the FDA.? Wyeth wasn‘t pleased with the ruling, stating that ?lay juries? should not be allowed to ?second guess? risk/benefit of drugs of drugs approved by experts at FDA. Wyeth‘s prospective new owner, Pfizer, sent the following comment to Pharm Exec. ?Pfizer is disappointed with today's 6–3 US Supreme Court ruling in Wyeth v. Levine,? a Pfizer spokesperson stated in an email. ?Pfizer believes that, due to its medical and scientific expertise, the US Food and Drug Administration is the best authority to weigh the benefits and risks of prescription medicines, and to ensure that those benefits and risks are being appropriately communicated in product labels.? The case, Wyeth v. Levine, was a much anticipated and closely watched legal battle to determine whether pharma companies could use preemption as a legitimate argument to avoid state-level personal injury suits. In Levine, a Vermont court found Wyeth responsible for the loss of a woman‘s arm caused by inappropriate administration of Phenergan (promethazine). The drug firm had to pay the plaintiff $6.7 million in damages.
Medical Negligence
The service which medical professionals render to us is the noblest. Aryans embodied the rule that, Vidyo narayano harihi (which means doctors are equivalent to Lord Vishnu). Professionals like doctors, lawyers, etc. are in the category of persons professing special skills. Any man practicing a profession requires particular level of learning, which impliedly assures a person dealing with him, that he possesses such requisite knowledge, expertise and will profess his skill with reasonable degree of care and caution. It should be taken in to consideration that the professional should command the ?corpus of knowledge? of his
profession. Since long the medical profession is highly respected, but today a decline in the standard of the medical profession can be attributed to increasing number of litigations against doctors for being negligent narrowing down to ?medical negligence?.
The ‘Bolam’ test electro convulsive therapy Mr. Bolam was advised electro convulsive therapy for mental illness. He was however, not warned of the risks of fractures involved in the treatment. There were two bodies of opinion. One preferred the use of relaxant drugs. Using relaxants, the patient sustained dislocation of both hip joints with fracture of pelvis. The doctor was not held negligent because he acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that art. The ?Bolam‘ principle implies that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice, has been accepted by House of Lords as applicable not only to diagnosis and treatment but also to advice and warning. A doctor is not liable for taking one choice out of two for favouring one school rather than another. He is only liable when he falls below the standard of a reasonable component practitioner in this field, so much so that his conduct may deserve censure.
Spring Meadows Hospital vs. Harjo Ahluwalia
In Spring Meadows Hospital vs. Harjo Ahluwalia[11] the Supreme Court was concerned with the rights of a parent when a child dies due to medical negligence. It was argued by the hospital that the parents were not consumers under the Act so could not get any relief. The Court rejected this argument and observed that even parents were covered under the Act and there was nothing in the law which prevented the parents as well as the child from recovering damages. In this case, a child patient was treated for seven days in the Spring Meadows Hospital (Noida) for typhoid. The consultant physician prescribed ?Chioromphenical injection?, but the unqualified nurse misread it as ?chloroquine? and indented, for the purchase of injection, ?Lariago? (i.e. chloroquine). She injected chloroquine 5 mg IV, which was at least 3-1/2 times of the normal paediatric dose. The patient suffered irreversible brain damage. Treatment for 21 days in AIIMS New Delhi, did not help. The patient was compelled to live in a vegetative state.
The National Consumer Commission, whose judgment was confirmed by the Supreme Court, came to the conclusion, that the attending doctor was negligent, as he allowed an unqualified nurse to administer the injection, even though the consultant doctor had advised administration by the attending doctor himself.
The hospital and the nurse were jointly and severally liable. The Court made the following important observations:
Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which may tantamount to negligence cannot be pardoned….Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anesthetia will frequently lead to the imposition of liability…. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing his duties properly.
The Court ordered the following compensation in the case:
(a) Rs. 12.5 lakhs to the child (Rs. 10 lakhs compensation, plus Rs. 2.5 lakhs for equipment).
(b) Rs. 5 lakhs to the parents, for mental agony.
The Supreme Court further held that when a young child is taken to a hospital and treated by the hospital, then
(a) the child‘s parents would come within the definition of ?consumer?; and
(b) the child also becomes a ?consumer?, being a beneficiary of such services.
Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005
Bench: R Lahoti, G Mathur, P.K.Balasubramanyan
CASE NO.:
Appeal (crl.) 144-145 of 2004 PETITIONER: Jacob Mathew RESPONDENT: State of Punjab & Anr. DATE OF JUDGMENT: 05/08/2005 BENCH: CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN JUDGMENT: JUDGMENT R.C. LAHOTI, CJI Ashok Kumar Sharma, the respondent no.2 herein filed a First Information Report with police station, Division No. 3, Ludhiana, whereupon an offence under Section 304A read with Section 34 of the Indian Penal Code (for short "the IPC") was registered. The gist of the information is that on 15.2.1995, the informant's father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant's elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us and Dr.Allen Joseph came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical
staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between, 5 to 7 minutes were wasted. By this time, another doctor came who declared that the patient was dead. The latter part of the FIR states (as per the translation in English as filed by the complainant): "the death of my father was occurred due to the carelessness of doctors and nurses and non availability of oxygen cylinder and the empty cylinder was fixed on the mouth of my father and his breathing was totally stopped hence my father died. I sent the dead body of my father to my village for last cremation and for information I have come to you. Suitable action be done Sd/- ---- As per statement of intimator the death of Jiwan Lal Sharma has occurred due to carelessness of doctor and nurses concerned and to fit empty gas cylinder." On the above said report, an offence under Section 304A/34 IPC was registered and investigated. Challan was filed against the two doctors. The Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC against the two accused persons, both doctors. Both of them filed a revision in the Court of Sessions Judge submitting that there was no ground for framing charges against them. The revision was dismissed. The appellant filed a petition in the High Court under Section 482 of the Code of Criminal Procedure praying for quashing of the FIR and all the subsequent proceedings. It was submitted before the High Court that there was no specific allegation of any act of omission or commission against the accused persons in the entire plethora of documents comprising the challan papers filed by the police against them. The learned single Judge who heard the petition formed an opinion that the plea raised by the appellant was available to be urged in defence at the trial and, therefore, a case for quashing the charge was not made out. Vide order dated 18.12.2002, the High Court dismissed the petition. An application for recalling the abovesaid order was moved which too was dismissed on 24.1.2003. Feeling aggrieved by these two orders, the appellant has filed these appeals by special leave. According to the appellant, the deceased Jiwan Lal was suffering from cancer in an advanced stage and as per the information available, he was, in fact, not being admitted by any hospital in the country because his being a case of cancer at terminal stage. He was only required to be kept at home and given proper nursing, food, care and solace coupled with prayers. But as is apparent from the records, his sons are very influential persons occupying important positions in Government. They requested the hospital authorities that come what may, even on compassionate grounds their father may be admitted in the hospital for regulated medical treatment and proper management of diet. It was abundantly made clear to the informant and his other relations who had accompanied the deceased that the disease was of such a nature and had attained such gravity, that peace and solace could only be got at home. But the complainant could prevail over the doctors and hospital management and got the deceased admitted as an in-patient.
Nevertheless, the patient was treated with utmost care and caution and given all the required medical assistance by the doctors and para-medical staff. Every conceivable effort was made by all the attending staff comprising of doctors and nurses and other para-medicals to give appropriate medical treatment and the whole staff danced attendance on the patient but what was ordained to happen, did happen. The complainant and his relations, who were misguided or were under mistaken belief as to the facts, lodged police report against the accused persons wholly unwarranted and uncalled for. The matter came up for hearing before a Bench of two learned judges of this Court. Reliance was placed by the appellant on a recent two-judge Bench decision of this Court in Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. (2004) 6 SCC 422. The Bench hearing this appeal doubted the correctness of the view taken in Dr. Suresh Gupta's case and vide order dated 9.9.2004 expressed the opinion that the matter called for consideration by a Bench of three Judges. This is how the case has come up for hearing before this Bench. In Dr. Suresh Gupta's case, the patient, a young man with no history of any heart ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be "not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage". The Bench formed an opinion that this act attributed to the doctor, even if accepted to be true, could be described as an act of negligence as there was lack of due care and precaution. But, the Court categorically held "for this act of negligence he may be liable in , his carelessness or want of due attention and skill cannot be described to be so reckless or grossly negligent as to make him criminally liable". The referring Bench in its order dated 9.9.2004 has assigned two reasons for their disagreement with the view taken in Dr. Suresh Gupta's case which are as under
1) Negligence or recklessness being 'gross' is not a requirement of Section 304A of IPC and if the view taken in Dr. Suresh Gupta's case is to be followed then the word 'gross' shall have to be read into Section 304A IPC for fixing criminal liability on a doctor. Such an approach cannot be countenanced. (2) Different standards cannot be applied to doctors and others. In all cases it has to be seen whether the impugned act was rash or negligent. By carrying out a separate treatment for doctors by introducing degree of rashness or negligence, violence would be done to the plain and unambiguous language of section 304A. If by adducing evidence it is proved that there was no rashness or negligence involved, the trial court dealing with the matter shall decide appropriately. But a doctor cannot be placed at a different pedestal for finding out whether rashness or negligence was involved. We have heard the learned counsel for the appellant, the respondent-State and the respondent complainant. As the question of medical negligence arose forconsideration, we thought it fit to issue notice to Medical Council of India to assist the Court at the time of hearing which it has done. In addition, a registered society 'People for Better Treatment', Kolkata; Delhi Medical Council, Delhi Medical Association and Indian Medical Association sought for intervention at the hearing as the issue arising for decision is of vital significance for the medical profession. They too have been heard. Mainly, the submissions made by the learned counsel for the parties and the intervenors have centred around two issues : (i) Is there a difference in civil and criminal law on the concept of negligence?; and (ii) whether a different standard is applicable for recording a finding of negligence when a professional, in particular, a doctor is to be held guilty of negligence? With the awareness in the society and the people in general gathering consciousness about their rights, actions for damages in tort are on the increase. Not only civil suits are filed, the availability of a forum for grievance redressal under the Consumer Protection Act, 1986 having jurisdiction to hear complaints against professionals for 'deficiency in service', which expression is very widely defined in the Act, has given rise to a large number of complaints against professionals, in particular against doctors, being filed by the persons feeling aggrieved. Criminal complaints are being filed against doctors alleging commission of offences punishable under Section 304A or Sections 336/337/338 of the IPC alleging rashness or negligence on the part of the doctors resulting in loss of life or injury (of varying degree) to the patient. The present one is such a case. The order of reference has enabled us to examine the concept of 'negligence', in particular 'professional negligence', and as to when and how it does give rise to an action under the criminal law. We propose to deal with the issues in the interests of settling the law. Negligence as a tort The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) ___ "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current
forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:1. the existence of a duty to take care, which is owed by the defendant to the complainant; 2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and 3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24) Negligence __ as a tort and as a crime The term 'negligence' is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence upto the modern times. Generally speaking, 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 cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that
there was such risk, he nevertheless goes on to do it." The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill-seeking. These are clearly reckless. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case ___ "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. (Charlesworth & Percy, ibid, Para 1.13) The fore-quoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J. 423 ? a three-Judge Bench decision of this Court. It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree. Negligence by professionals In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03) Oft'quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 in the following words: "Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is
not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. 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 well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid, Para 8.02) The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well- condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79 summarised the Bolam test in the following words:- "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet." (Charlesworth & Percy, ibid, Para 8.04) The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
Abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110) In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. The decision of House of Lords in Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which other four Lords agreed quoted the following words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213 at 217, observing that the words cannot be bettered "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional menThe true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care". Lord Scarman added "a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence." His Lordship further added "that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred." The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard
of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have been proved or made out by resorting to the said rule (See Syad Kabar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court has observed that there may be a case where the proved facts would themselves speak of sharing of common intention and while making such observation one of the learned judges constituting the Bench has in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it has been stated that the rule has applicability in a criminal case and an inference as to an essential ingredient of an offence ca be found
proved by resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be decided solely by applying the rule of res ipsa loquitur. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reasonwhether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are found mentioned by Alan Merry and Alexander McCall Smith in their work "Errors, Medicine and the Law" (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions,
misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation the person holding the 'smoking gun'. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Black's Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence. Medical Professionals in Criminal Law The criminal law has invariably placed the medical professionals on a pedestal different from ordinary mortals. The Indian Penal Code enacted as far back as in the year 1860 sets out a few vocal examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person's benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm. There are four exceptions listed in the Section which is not necessary in this context to deal with. Section 93 saves from criminality certain communications made in good faith. To these provisions are appended the following illustrations:Section 88 A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death and intending in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence. Section 92 Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z's death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has
committed no offence. A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit. A has committed no offence. Section 93 A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death. It is interesting to note what Lord Macaulay had himself to say about Indian Penal Code. We are inclined to quote a few excerpts from his speech to the extent relevant for our purpose from "Speeches and Poems with the Report and Notes on the Indian Penal Code" by Lord Macaulay (Houghton, Mifflin and Company, published in 1874). "Under the provisions of our Code, this case would be very differently dealt with according to circumstances. If A. kills Z. by administering abortives to her, with the knowledge that those abortives are likely to cause her death, he is guilty of voluntary culpable homicide, which will be voluntary culpable homicide by consent, if Z. agreed to run the risk, and murder if Z. did not so agree. If A causes miscarriage to Z., not intending to cause Z.'s death, nor thinking it likely that he shall cause Z.'s death, but so rashly or negligently as to cause her death, A. is guilty of culpable homicide not voluntary, and will be liable to the punishment provided for the causing of miscarriage, increased by imprisonment for a term not exceeding two years. Lastly, if A took such precautions that there was no reasonable probability that Z.'s death would be caused, and if the medicine were rendered deadly by some accident which no human sagacity could have foreseen, or by some peculiarity in Z.'s constitution such as there was no ground whatever to expect, A. will be liable to no punishment whatever on account of her death, but will of course be liable to the punishment provided for causing miscarriage. It may be proper for us to offer some arguments in defence of this part of the Code. It will be admitted that when an act is in itself innocent, to punish the person who does it because bad consequences, which no human wisdom could have foreseen, have followed from it, would be in the highest degree barbarous and absurd." (P.419) "To punish as a murderer every man who, while committing a heinous offence, causes death by pure misadventure, is a course which evidently adds nothing to the security of human life. No man can so conduct himself as to make it absolutely certain that he shall not be so unfortunate as to cause the death of a fellow-creature. The utmost that he can do is to abstain from every thing which is at all likely to cause death. No fear of punishment can make him do more than this; and therefore, to punish a man who has done this can add nothing to the security
of human life. The only good effect which such punishment can produce will be to deter people from committing any of those offences which turn into murders what are in themselves mere accidents. It is in fact an addition to the punishment of those offences, and it is an addition made in the very worst way." (p.421) "When a person engaged in the commission of an offence causes death by rashness or negligence, but without either intending to cause death, or thinking it likely that he shall cause death, we propose that he shall be liable to the punishment of the offence which he was engaged in committing, superadded to the ordinary punishment of involuntary culpable homicide. The arguments and illustrations which we have employed for the purpose of showing that the involuntary causing of death, without either rashness or negligence, ought, under no circumstances, to be punished at all, will, with some modifications, which will readily suggest themselves, serve to show that the involuntary causing of death by rashness or negligence, though always punishable, ought, under no circumstances to be punished as murder." (P.422) The following statement of law on criminal negligence by reference to surgeons, doctors etc. and unskillful treatment contained in Roscoe's Law of Evidence (Fifteenth Edition) is classic: "Where a person, acting as a medical man, &c., whether licensed or unlicensed, is so negligent in his treatment of a patient that death results, it is manslaughter if the negligence was so great as to amount to a crime, and whether or not there was such a degree of negligence is a question in each case for the jury. "In explaining to juries the test which they should apply to determine whether the negligence in the particular case amounted or did not amount to a crime, judges have used many epithets, such as 'culpable,' 'criminal', 'gross', 'wicked', 'clear', 'complete.' But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment." (p. 848-849) xxx xxx xxx "whether he be licensed or unlicensed, if he display gross ignorance, or gross inattention, or gross rashness, in his treatment, he is criminally responsible. Where a person who, though not educated as an accoucheur, had been in the habit of acting as a man-midwife, and had unskilfully treated a woman who died in childbirth, was indicted for the murder, L. Ellenborough said that there was no evidence of murder, but the jury might convict of man-slaughter. "To substantiate that charge the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the [most?] criminal inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct which is essential to make out a case of manslaughter." (p.849) A review of Indian decisions on criminal negligence We are inclined to, and we must - as duty bound, take note of some of the relevant decisions of the Privy Council and of this Court. We would like to preface this discussion with the law laid down by
the Privy Council in John Oni Akerele v. The King AIR 1943 PC 72. A duly qualified medical practitioner gave to his patient the injection of Sobita which consisted of sodium bismuth tartrate as given in the British Pharmacopoea. However, what was administered was an overdose of Sobita. The patient died. The doctor was accused of manslaughter, reckless and negligent act. He was convicted. The matter reached in appeal before the House of Lords. Their Lordships quashed the conviction. On a review of judicial opinion and an illuminating discussion on the points which are also relevant before us, what their Lordships have held can be summed up as under
i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.; (ii) That the degree of negligence required is that it should be gross and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. (iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion. .. The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck."(emphasis supplied) Their Lordships refused to accept the view that criminal negligence was proved merely because a number of persons were made gravely ill after receiving an injection of Sobita from the appellant coupled with a finding that a high degree of care was not exercised. Their Lordships also refused to agree with the thought that merely because too strong a mixture was dispensed once and a number of persons were made gravely ill, a criminal degree of negligence was proved. The question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. In Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra (1965) 2 SCR 622, while dealing with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with approval:"To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non." K.N. Wanchoo, J. (as he then was), speaking for the Court, observed that theabovesaid view of the law has been generally followed by High Courts in India and was the correct view to take of the meaning of Section 304A. The same view has been reiterated in Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904. In Juggankhan v. The State of Madhya Pradesh (1965) 1 SCR 14, the accused, a registered Homoeopath, administered 24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had not studied the effect of such substances being administered to a human being. The poisonous contents of the leaf of dhatura, were not satisfactorily established by the prosecution. This Court exonerated the accused of the charge under Section 302 IPC. However, on a finding that stramonium and dhatura leaves are poisonous and in no system of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm, the act of the accused who prescribed poisonous material without studying their probable effect was held to be a rash and negligent act. It would be seen that the profession of a Homoeopath which the accused claimed to profess did not permit use of the substance administered to the patient. The accused had no knowledge of the effect of such substance being administered and yet he did so. In this background, the inference of the accused being guilty of rash and negligent act was drawn against him. In our opinion, the principle which emerges is that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) 1 SCR 206 was a case under Fatal Accidents Act, 1855. It does not make a reference to any other decided case. The duties which a doctor owes to his patients came up for consideration. The Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that 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 what treatment to be given 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. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthetic to the patient. The doctor was held guilty of negligence and liability for damages in civil law. We hasten to add that criminal negligence or liability under criminal law was not an issue before the Court as it did not arise and hence was not considered. In the year 1996, there are 3 reported decisions available. Indian Medical Association v. V.P. Shantha and Ors. (1995) 6 SCC 651 is a three-Judge Bench
decision. The principal issue which arose for decision by the Court was whether a medical practitioner renders 'service' and can be proceeded against for 'deficiency in service' before a forum under the Consumer Protection Act, 1986. The Court dealt with how a 'profession' differs from an 'occupation' especially in the context of performance of duties and hence the occurrence of negligence. The Court noticed that medical professionals do not enjoy any immunity from being sued in contract or tort (i.e. in civil jurisdiction) on the ground of negligence. However, in the observation made in the context of determining professional liability as distinguished from occupational liability, the Court has referred to authorities, in particular, Jackson & Powell and have so stated the principles, partly quoted from the authorities :"In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (See : Jackson & Powell on Professional Negligence, 3rd Edn., paras 1-04, 1-05, and 1-56)." In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC 332 a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct amounted to negligence per se actionable in civil law. Dr. Laxman Balkrishna Joshi's case (supra) was followed. Vide para 16, the test for determining whether there was negligence on the part of a medical practitioner as laid down in Bolam's case (supra) was cited and approved. In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was
forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'. M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence:- "The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence." In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC 182 also Bolam's test has been approved. This case too refers to liability for compensation under civil law for failure of sterilisation operation performed by a surgeon. We are not dealing with that situation in the case before us and, therefore, leave it to be dealt within an appropriate case. Before we embark upon summing up our conclusions on the several issues of law which we have dealt with hereinabove, we are inclined to quote some of the conclusions arrived at by the learned authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at the end of the book in the chapter titled 'Conclusion') highlighting the link between moral fault, blame and justice in reference to medical profession and negligence. These are of significance and relevant to the issues before us. Hence we quote
i) The social efficacy of blame and related sanctions in particular cases of deliberate wrongdoings may be a matter of dispute, but their necessity in principle from a moral point of view, has been accepted. Distasteful as punishment may be, the social, and possibly moral, need to punish people for wrongdoing, occasionally in a severe fashion, cannot be escaped. A society in which blame is overemphasized may become paralysed. This is not only because such a society will inevitably be backward- looking, but also because fear of blame inhibits the uncluttered exercise of judgment in relations between persons. If we are constantly concerned about whether our actions will be the subject of complaint, and that such complaint is likely to lead to legal action or disciplinary proceedings, a relationship of suspicious formality between persons is inevitable. (ibid, pp. 242-243) (ii) Culpability may attach to the consequence of an error in circumstances where substandard antecedent conduct has been deliberate, and has contributed to the generation of the error or to its outcome. In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done. There is a tendency to confuse the reasonable person with the error-free person. While nobody can avoid errors on the basis of simply choosing not to make them,people can choose not to commit violations. A violation is culpable. (ibid, p. 245). (iii) Before the court faced with deciding the cases of professional negligence there are two sets of interests which are at stake : the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. (ibid, p.246). A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient is entitled. The effect of this on the doctor-patient relationship is distorting and will not be to the benefit of the patient in the long run. It is also unjustified to impose on those engaged in medical treatment an undue degree of additional stress and anxiety in the conduct of their profession. Equally, it would be wrong to impose such stress and anxiety on any other person performing a demanding function in society. (ibid, p.247). While expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks. (ibid, p. 247). (iv) Conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrong doing, are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness. (ibid, p.248). (v) Blame is a powerful weapon. Its inappropriate use distorts tolerant and constructive relations between people. Distinguishing between (a) accidents which are life's misfortune for which nobody is morally responsible, (b) wrongs amounting to culpable conduct and constituting grounds for compensation, and (c) those (i.e. wrongs) calling for punishment on account of being gross or of a very high degree requires and calls for careful, morally sensitive and scientifically informed analysis; else there would be injustice to the larger interest of the society. (ibid, p. 248). Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society. Conclusions summed up We sum up our conclusions as under
1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent andreasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. 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. 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. (6) The word 'gross' has not been used in Section 304A of IPC, yet it is settledthat 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 304A of the IPC has to be read as qualified by the word 'grossly'. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. We may not be understood as having expressed any opinion on the question whether on the facts of that case the accused could or could not have been held guilty of criminal negligence as that question is not before us. We also approve of the passage from Errors, Medicine and the Law by Alan Merry and Alexander McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted vide para 27 of the report). Guidelines re: prosecuting medical professionals As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, 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. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. 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 investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. Case at hand Reverting back to the facts of the case before us, we are satisfied that all the averments made in the complaint, even if held to be proved, do not make out a case of criminal rashness or negligence on the part of the accused appellant. It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat. It is a case of nonavailability 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, probably the hospital may be liable in civil law (or may not be we express no opinion thereon) but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam's test. Result The appeals are allowed. The prosecution of the accused appellant under Section 304A/34 IPC is quashed. All the interlocutory applications be treated as disposed
Medical Law Reporter
2007 Med LR 189
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Hon’ble Justice Mr. S.N. Kapoor, Presiding Member Hon’ble Mr. B.K. Taimni, Member First Appeal No. 528 of 1997 Decided on 17-10-2006
Kurien Abraham and Others vs. Dr. Omana Jacob and Others
MEDICAL NEGLIGENCE – DELIVERY OF CHILD – No Doctor attending on patient resulting in her death – Deficiency-in-service – Hospital directed to pay Rs. 2,70,000 along with interest to complaints.
SUMMARY OF FACTS
The patient, aged 27 years, on getting pregnant for the first time, being under care of first respondent, attending gynaecologist from the beginning, was admitted in the hospital for the delivery of child. The patient was removed to the labour room at 8.30 a.m. but the doctor was not seen after that either by the patient or by her relatives. A baby was delivered but the mother having developed certain complications after the delivery died on the same evening. The relations of the patient filed a complaint alleging deficiency in rendering medical service, claiming compensation of Rs. 15 lakhs. The State Commission holding the hospital medically negligent for absence of the attending gynaecologist from the beginning directed it to pay Rs. 25,000 along with cost of Rs. 2,000 to the complainants. No appeal filed by the doctors or the hospital. However, in appeal filed by the complainants, the National Commission enhanced the amount of compensation to Rs. 2,70,000 considering that the deceased patient was a young lady, aged 27 years who was a qualified ?graduate High School teacher‘, earning Rs. 3,000 per month in year 1995.
HELD [NATIONAL COMMISSION]
Leading allegation amounting to medical negligence is related to the nonattendance of the first respondent Dr. Omana Jacob from 8.00 a.m. on 17.11.1995 onwards as she was the attending gynaecologist from the beginning as far as the deceased was concerned. The material brought on record clearly shows that no doctor was available to take care of the deceased till late in the afternoon, when she was attended to by the second respondent Dr. Jossetta. Ld. State Commission.
As per material on record, the second respondent Dr. Jossetta one of the Sr Gynaecologists admitted before the State Commission that on 17-11-1995, she had ?Theatre duty‘ and went to the labour room where the patient was lying only after she was informed of the condition of the deceased at the post-delivery stage and after serious complications had arisen, which resulted in the death of the patient. According to both respondents 1 and 2 it was Dr. Laila George who was on duty yet there was no reference to this in the written version filed by them before the State Commission or in the material on record, thus, clearly leading the State Commission to conclude that from the time the deceased was moved into labour room and till the time she had serious complications there was no doctor attending on the
deceased which as rightly held by the State Commission is a clear case of deficiency resulting in the death of the deceased.
In the above circumstances, State Commission, in our view, rightly held the 5th respondent guilty of medical negligence. No appeal has been filed by the respondents which reassure us that they had accepted their medical negligence.
This is a case of death by negligence on the part of the respondents and appeal has been filed by the appellants/complainants for enhancement of compensation. We also see in the complaint filed before the State Commission they had asked for a compensation of Rs. 15 lakhs, of which they have not given any break-up and State Commission has also shown no ground based on which they have arrived at a figure of Rs. 25,000 awarding as compensation for loss of life of 27 years old lady who was a qualified ?graduate High School teacher‘ and there is no material brought on record to rebut this. In such circumstances, we find that the State Commission has not awarded the compensation commensurate with the loss caused to the appellants. In view of above, in our view, the deceased who was a qualified graduate High School teacher would be earning Rs. 3,000 per month way back in 1995. 50% is set off as expenditure and balance 50% would be Rs. 1500 per month, meaning thereby for a year she would be contributing/saving Rs. 18,000 using a multiplier of 15, the appellants would be entitled to a sum of Rs. 2,70,000 in all, as she died at a young age of 27 years. We have not taken into calculation possible revision in payscales/career advancement in future . IMPORTANT LAW POINT + Where from the time the pregnant lady was moved into labour room and till the time she had serious complications resulting in her death there was no doctor attending on the deceased patient, it was rightly held as a clear case of deficiency-in-service.
Case laws Deficient service Contrasted with negligent service Medics and paramedics Medical council of India’s function Case studies for India’s function Who can avail of the service? Restrictions on the service Orders of the court Remedial measures Case laws miscellaneous Judgments and Orders Directions- Examples miscellaneous
Certificate Acknowledgements Prologue Case Law Index Case study Index Prime Time matter Epilogue Select bibiliographyhttp://www.virtualpune.com/citizen-centre/html/consumer_rights.shtmlhttp://answers.yahoo.com/question/index?qid=20080416034852AAh2F2Lhttp://wiki.answers.com/Q/Do_you_think_that_a_customer_and_consumer_ are_differenthttp://www.blurtit.com/q135276.htmlhttp://www.medindia.net/doctors/cpahttp://www.legalserviceindia.com/article/l178-Medical-Negligence.htmlhttp://www.halsburys.in/medico-legal-aspects-of-consumer-lawconcering.htmlhttp://www.indiankanoon.org/doc/871062/http://www.legalpundits.com/
Cross reference Index
doc_552245834.docx