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Medical Professionals and Patients: The Legal Relationship in India

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Review Article

Medical Professionals and Patients: The Legal Relationship in India

Arun Gupta, Neeti Goyal1, Puja Dudeja, Kamalpreet Singh2

Department of Community Background: Medical professionals being subject to law suits is increasing at

Abstract
Medicine, AFMC, Pune,
Maharashtra, 1Department
feverish pace in India. Knowledge of Law applicable to medical care givers will
of Pathology, INHS not only keep them in good stead in court of law but also help in avoiding court
Patanjali, Karwar, Karnataka, cases by taking corrective measures in time. Issues: Professional negligence is at
2
Department of ENT, the heart of any medical law suit. It can be civil or criminal. It can be countered
166 Military Hospital, by the medical professional with contributory negligence, in which patient himself
Jammu and Kashmir, India is responsible wholly or partly for the harm. Also, hospitals and employer can be
made responsible, by virtue of Vicarious responsibility. Redressal: Institutions
from where a patient can ask for redressal are Medical Council of India,
Consumer Protection Courts, Civil Courts, Criminal Courts and Military Courts.
MCI can suspend registration of medical practitioner for varying period of time
and Consumer court can give monetary relief to the patient. Care giver who gives
care completely free of cost is exempted under Consumer Protection Act. Civil
and Criminal courts have powers to sentence convicted medical practitioner of
fine or imprisonment or both. Action Skills: Medical professionals can avoid law
suits against them by good communication with patients and relatives, meticulous
record keeping, taking real consent, meeting BRAND criteria, following standard
protocols, avoiding negative criticism of fellow care givers and keeping themselves
Submission: 01‑04‑2019, abreast with laws and acts of the land.
Decision: 15-06-2019,
Acceptance: 03-09-2019,
Web Publication: 16-12-2019 Keywords: Courts, judgment, medical negligence, medical professionals

Introduction clinical practice to minimize the chances of medical

caregivers’ exposure to a lawsuit.
R elationship of a medical professional and patient
through a legal prism is not very old, but fast
mushrooming to be all consuming. With social media
Professional Negligence
boom, awareness among the patients is at all time high It is defined as the absence of reasonable care or skill or
and having paid for the medical service, patient feel that willful negligence on the part of the medical practitioner
it is his/her right to get an error‑free and highest quality in the treatment of the patient whereby the health or
service, though law may not entirely agree with this. In life of the patient is endangered. It is categorized into
parts of the United States, prohibitory sums are charged civil and criminal negligence. Civil negligence is
for malpractice insurance, causing physicians to abandon subcategorized into malpractice and deficiency in service
medicine.[1] Medical law as an additional knowledge and and criminal negligence into gross lack of competency,
skill can no longer be relegated to “desirable‑to‑know” gross inattention, and reckless behavior.[2]
category, with each action of medical professionals The Kerala State Consumer Dispute Redressal
coming or bound to come in the near future under legal Commission in the case, K. Gracy Kutty v.
scrutiny.
Address for correspondence: Dr. Neeti Goyal,
This article covers various aspects of the existent Department of Pathology, INHS Patanjali, Karwar,
law applicable on medical professionals in India and Karnataka, India.
elaborate on professional skills, which are must in E‑mail: drgupta.arun@yahoo.com

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DOI: How to cite this article: Gupta A, Goyal N, Dudeja P, Singh K. Medical
10.4103/mjdrdypu.mjdrdypu_101_19 professionals and patients: The legal relationship in India. Med J DY Patil
Vidyapeeth 2020;13:11-5.

© 2019 Medical Journal of Dr. D.Y. Patil Vidyapeeth | Published by Wolters Kluwer - Medknow 11
 Gupta, et al.: Medical law in India

Dr.  Annamma Oommen has elaborated acts, which can

be held as “negligent.” These include misrepresenting
one’s skill or expertise, recklessness in undertaking a
treatment, indifferent handling, failure to act diligently
and alertly at appropriate time, evident negligence such
as amputating wrong limb or administering prohibited
or counterproductive medicine, and unjustifiable wrong
diagnosis or treatment. Acts, held as “negligent” by
other judgments, include supply of contaminated blood
by blood bank, doctor not providing postoperative care,
unqualified person conducting delivery, and chemist
selling medicine not prescribed by doctor, and this list Figure 1: Institutions for patient redressal - institutions available to the
is not exhaustive. patient aggrieved by professional negligence from where he/she can get
redressal

Contributory Negligence
Medical council
Contributory negligence is when patient’s carelessness
The Medical Council of India (MCI) is a medical
contributes to the harm, by his/her own act/omission.
ombudsman body established by the Government of
It may bar patients from recovering or may reduce the
India by an act of Parliament, MCI Act, 1956. It is
damages sentenced to the medical professional. It is
entrusted with the responsibility of recognition of
diluted in the case of children and mentally impaired
medical qualification, supervision of undergraduate and
patients. Furthermore, it does not come into play in
postgraduate medical education, recognition of foreign
criminal liability. Examples include patients tempering
medical degrees, de‑recognition, maintenance of medical
with plaster leading to deformity at a joint, changing
registers, issuance of warning notices, taking disciplinary
doctors, and glaucoma patients held contributory
actions and appeal against them.
negligent for not taking follow‑up treatment.
The MCI under article 18 of the MCI Act 1956 has
Vicarious Liability the power to investigate any claims of violations of
Law holds one person liable for the tortious acts of professional duties, malpractice, dishonesty, negligence,
another, even though the other person has nothing to do or breach of the code of practice against a registered
with the commission of the trot, which is called vicarious person including a public officer, in respect of whom
liability, for example, an employer/hospital being held it holds a delegated power. Lack of proper and timely
liable for the act of an employee/medical professional. care, as expected from a registered medical practitioner,
In the case of Gold v. Essex County Council,[3] the is categorized into the act of omission and act of
court held the hospital liable for the negligent act of its commission.[4]
radiographer and nurse. Exemption from it is, if patient The punitive action after proper investigation by the
himself/herself chooses the doctor and goes to hospital MCI ranges from permanent striking of name from
where he/she is employed. medical register so that the medical professional
For the claim for negligence to succeed, a plaintiff cannot practice his/her medical skills anywhere in
patient must prove that there was a duty of the medical the country, to suspending of registration from few
professional toward the patient and there was a deficiency months to years, depending on the severity of the
in that duty which has directly  (causa causans) resulted violation.
in the damage. The damage may be physical, mental, or Consumer courts
financial loss to patient or his/her relatives.
In a landmark supreme court judgment, in the case of
Patients aggrieved by professional negligence can get IMA v. VP Shantha, the court inferred that services
their redressal from the below‑mentioned institutions provided by a medical professional to the patient, in the
[Figure 1]: form of consultation, lab investigation, and management,
1. Medical council both interventional and noninterventional, would fall
2. Consumer courts within the purview of the service of Consumer Protection
3. Civil courts Act  (CPA) and the fact that medical practitioners are
4. Criminal courts subject to disciplinary rules of the MCI would not
5. Military courts  (this is beyond the preview of the exclude them from the purview of the act.[5] With this
article and will not be discussed here). judgment, the skills offered by medical professionals

12 Medical Journal of Dr. D.Y. Patil Vidyapeeth  ¦  Volume 13  ¦  Issue 1  ¦  January-February 2020
 Gupta, et al.: Medical law in India

were labeled as service, thus subjecting them to Section exercise average skill of an averagely competent person
2(1)(o) of CPA, 1986. practicing in that particular field.[7]
District forums and state and national commissions, The difference from CPA, 1986 is that here the patient
also called consumer courts, established under CPA, need-not be a consumer. For example, where Govt.
1986, have the same powers as bestowed with civil hospitals are involved, alleging violation of Article 21,
courts under the Civil Procedures Code  (CPC), 1908. case can be filed in Civil Court. Major disadvantage of
It includes delivering of commission and compelling this remedy is that its time consuming.
attendance of the accused, examining him/her under
Criminal courts
oath, reception of evidence on affidavit, requisitioning
of the laboratory test or investigation report from any The act comes under the purview of criminal courts
pertinent source, and issuance of summons for the when the degree of negligence is so severe that it
presence and examination of the witnesses.[6] cannot be monetarily compensated, such as in the
event of death or severe injury to the patient. In such
Services under the purview of the act include, where cases, medical professionals may be arrested by police
the patient has paid for his/her consultation; where after proper preliminary investigation and charged for
payment is taken from some in government hospitals; culpable homicide in a criminal court.
services by the doctor under contract of employment
to his/her employer; and services to the patient, whose The objective of the plaintiff is not to get only damages,
expenses are borne by insurance company/employer. but to ensure that the medical professional is put behind
Those exempted under the act are, government/ non- bars. Action is sought under the Indian Penal Code  (IPC),
governmental hospitals/nursing homes where services 1980. Relevant sections are Sections 336, 337, and 338
are offered free of cost to all patients, irrespective of pertaining to imperiling human life or well‑being of others,
their paying capacity and medical care under personal by a negligent or cavalier act by a medical practitioner, and
service contract.[5] Section 304A, applied for causing death by such an act.

Civil courts In the case of Dr. Suresh Gupta v. Govt of NCT of Delhi,
Persons can take remedy of civil courts by alleging civil it was judged that when due to a negligent management
negligence, i.e., dishonoring of contractual commitment a patient suffers a major injury, the medical practitioner
by a medical professional when he/she accepted to take can be held responsible in civil jurisprudence to pay
a patient under his/her care. In this case, negligence monetary compensation for damages under the law of
and damage as claimed have to be proved by the tort. In addition, if the degree of neglect is so gross
patient plaintiff. Monetary compensation claim in civil and reckless so as to imperil the patient’s life, Section
negligence may be based on a breach of contract, 304A of IPC can be applied on such individual making
trespass to the person and battery, or law of trots. him/her liable for criminal offence of culpable homicide
not amounting to murder.[8] In such cases, he/she is
Law of trots liable for punishment with fine, or imprisonment for
Disregarding of commitment leading to damage/injury 2  years, or both. It is a cognizable and bailable offence.
to the individual is called trot. It can be pursued in the A  case under Section 304A of IPC cannot be absolved
civil court for action against a person responsible for exclusively by applying the rule of res ipsa loquitur.
it when appropriate remedy is available. Law of trots
cannot apply if there is no suitable remedy because the Res ipsa loquitur
core of this law is to give relief to the injured or who It stands for, the thing or fact speaks for itself. Its key
has suffered the damages. There are two aspects to the elements are that the injury could not have occurred
negligence, for which a medical practitioner may be without negligence, the defendant had full control over
held liable. First, he/she lacked the skills which he/she the injuring agent/treatment, and the plaintiff did not
claimed to have and second, he/she failed to practice the contribute to the injury. For example, amputation of the
skill he/she claimed with a fair degree of competence in right leg instead of the left. In this scenario, the onus
the specific case. The degree of competence is passed of proving guilt does not lie on the patient; instead, the
through Bolam test. medical professional has to establish his/her innocence.
Bolam test Action skills for medical professionals
The degree of competence which is expected from a Communication
medical professional was laid down in Bolam v Friern Communication is the key to a good doctor–patient
Hospital Management Committee case. It stated that a relationship. Medical professionals who exercise
person need not possess the best of skill, it is enough to patient‑centered communication apprise and educate

Medical Journal of Dr. D.Y. Patil Vidyapeeth  ¦  Volume 13  ¦  Issue 1  ¦  January-February 2020 13
 Gupta, et al.: Medical law in India

patients of various management options, answer queries associated with it, Alternatives (if any), No intervention
genuinely, engage them in medical decision‑making, (possibilities), and Documentation with signature
listen prudently, calm concerns and worries, show (patient, caregiver, and neutral witness).
compassion and respect, and demonstrate sensitivity
Consent may not be obtained during medical
to patients’ cultural and ethnic diversity, to develop
emergencies, person suffering from notifiable disease,
a relationship of trust and mutual respect.[9] It has
immigrants, member of Armed Forces, handlers of food
been observed that, even when a patient has suffered
and dairy milk, new admission to prisons, on order of
significant injury as a result of a medical error or
court for psychiatric examination, and on request of
a wrong judgment, it reduces the chances of being
police by the use of force (Section 53 of CPC). The
subjected to a medical trial.[1] Communication should
examination of females should always be done with a
be alive, uninterrupted, and subtle. It also includes
female attendant in presence.
communication with a colleague and your senior advisor.
Follow standard protocols
Medical recordkeeping
For quality medical care, recordkeeping is essential. It Standard protocols are assertions that have been
includes charting, accounting, and methodical storing scientifically developed and are intended to aid medical
of medical information.[10] Inpatient records are to be professionals decide on the treatment of specific
maintained for 3  years and are liable to be submitted conditions.[13] Their goal is to voluntarily establish
on request within 72  h.[11] It is recommended to use higher standards of patient care. In medical negligence
automated hospital management systems to provide lawsuit, a key step by the patient is to demonstrate that
prescriptions, discharge notes, and patients’ laboratory the medical practitioner failed to provide competent
reports. In case the medical records are written by care, as expected from him/her. The test traditionally
hand and they must be legible, for easy and correct applied in such cases is the Bolam test.[7] A medical care
understanding. It must be remembered that the provider is not deemed negligent if the treatment given
single‑most important factor of judgment in the court of has been endorsed by a competent body in the relevant
law going in favor or against is medical records. specialty and published as a standard protocol in the
reference text or a peer‑reviewed journal.[14]
Consent
Not taking the patient’s consent is medical negligence. Never criticize your colleague
Consent is broadly of two types, namely implied and Unsatisfied patients may choose to switch medical
expressed [Figure  2]. Expressed has subtypes namely caregiver to take a second opinion, due to inadequate
informed, real, and oral. communication, undesirable outcome, or other reasons.
When the intervention has been done, and the technical
Real consent specifics of medical care were divergent from what
Consent in vogue in India is a real consent.[12] It is you would have done in your practice, it is alluring to
obtained after providing the patient with adequate condemn the previous caregiver, which can have serious
information on significant risks  (>10%) but not on rare medico‑legal consequences.[15] If a colleague is reckless
or remote possibilities  (<2%), and it differs significantly or involved in an inappropriate behavior, the best way
from informed consent. It is expected to meet forward will be to communicate it to the institutes’
BRAND criteria, i.e., Benefits of intervention, Risks ethics committee or other appropriate authority. Negative
professional criticism does not increase ones’ image in
front of the patient and serves no other purpose than to
shake his/her confidence in the whole profession.[16]
Know the law
The axiom “learning from one’s own mistakes” is
very little honored in medical care. The best way to
handle medico‑legal problems is to prevent them.[17]
Knowledge of legal responsibilities is an integral part
of the expanding clinical function. While most medical
care providers remain abreast with the latest, through
continued medical education conferences/programs/
seminars/workshops, increasing cases in courts against
medical professionals make it imperative to know
Figure 2: Types of consent and understand the law of the land applicable and

14 Medical Journal of Dr. D.Y. Patil Vidyapeeth  ¦  Volume 13  ¦  Issue 1  ¦  January-February 2020
 Gupta, et al.: Medical law in India

amendments to various acts, released by the government Act‑1986.html. [Last accessed on 2018 Mar 25].
from time to time. These should be followed in letter 7. Freckelton I. Bolam buried, belatedly? J Law Med
2017;24:525‑37.
and spirit in one’s clinical practice.
8. Dharmadhikari. Supreme Court of India. Dr. Suresh Gupta v.
Govt. Of N.C.T. Of Delhi & Anr on 4 August, 2004. Available
Conclusion from: https://indiankanoon.org/doc/650550/. [Last accessed on
Knowledge of law applicable to medical professionals 2019 Aug 14].
can no longer be brushed aside, with the number of 9. American Academy of Orthopedic Surgeons/American
Association of Orthopedic Surgeons. The Importance of Good
lawsuits against them increasing at a feverish pace. Communication in the Patient‑ Physician Relationship [Advisory
Aggrieved patients can seek redressal against their Statement, Document No 1017] Rosemont, IL: American
caregiver from the MCI, consumer courts, civil courts, Academy of Orthopedic Surgeons/American Association of
and criminal courts. Medical professionals can avoid Orthopedic Surgeons; 2000. Available from: http://www.aaos.
org/wordhtml/papers/advistmt/goodcomc.htm. [Last accessed on
lawsuits against them by good communication with
2018 Apr 03].
patients and relatives, meticulous recordkeeping, taking 10. Pirkle CM, Dumont A, Zunzunegui MV. Medical recordkeeping,
real consent meeting BRAND criteria, following essential but overlooked aspect of quality of care in
standard protocols, avoiding negative criticism of fellow resource‑limited settings. Int J Qual Health Care 2012;24:564‑7.
caregivers, and keeping themselves abreast with laws 11. Code of Ethics Regulations, 2002. Medical Council of India,
and acts of the land. Amendment Notification. New Delhi; the 10th December, 2009.
Available from: https://old.mciindia.org/RulesandRegulations/
Financial support and sponsorship CodeofMedicalEthicsRegulations2002.aspx. [Last accessed on
2018 May 28].
Nil.
12. Raveendran. Supreme Court of India. Samira Kohli v. Dr.
Conflicts of interest Prabha Manchanda and Anr on 16 January, 2008. Available
There are no conflicts of interest. from: https://indiankanoon.org/doc/438423/ [Last accessed on
2019 Aug 14].
13. Department of Health. The New NHS: Modern, Dependable.
References London: HMSO; 1997. Available from: https://assets.publishing.
1. Huntington B, Kuhn N. Communication gaffes: A root cause of service.gov.uk/government/uploads/system/uploads/attachment_
malpractice claims. Proc (Bayl Univ Med Cent) 2003;16:157‑61. data/file/266003/newnhs.pdf. [Last accessed on 2018 May 28].
2. Kaushal AK, editor. Standard principals of medical negligence 14. Samanta A, Mello MM, Foster C, Tingle J, Samanta J. The role
and liabilities of a doctor. In: Medical Negligence and Legal of clinical guidelines in medical negligence litigation: A shift
Remedies. 4th ed. Gurgaon: Lexis Nexis; 2016. p. 332‑57. from the Bolam standard? Med Law Rev 2006;14:321‑66.
3. Gold v. Essex County Council (1942) 2 KB 293. Available from: 15. Bal BS, Brenner LH. Careless physician criticism of a colleague
https://swarb.co.uk/gold-v-essex-county-council-ca-1942/ [Last can cause legal trouble. Orthopedics Today, August 2014.
cited on 2019 Aug 14]. Available from: https://www.healio.com/orthopedics/business-
4. The Indian Medical Council Act (102 of 1956); 1956. Available oforthopedics/news/print/orthopedics-today/%7B6272974b-
from: https://mciindia.org/ActivitiWebClient/actnamendments/ 31c3-4d16-a4c18d62a27e014a%7D/careless-physician-criticism-
theMedicalCouncilAct1956. [Last accessed on 2018 Mar 21]. of-a-colleague-can-cause-legal-trouble [Last accessed on
5. Agrawal S. Supreme Court of India. Indian Medical Association 2018 May 29].
v. V.P. Shantha and Ors on 13 November, 1995. Available from: 16. Thawani V. The doctor‑doctor relationship: Professional
https://indiankanoon.org/doc/723973/. [Last accessed on 2019 criticism. Issues Med Ethics 2000;8:82‑3.
Aug 14]. 17. Raveesh BN, Nayak RB, Kumbar SF. Preventing medico‑legal
6. The Consumer Protection Act (Act 68 of 1986); 1986. Available issues in clinical practice. Ann Indian Acad Neurol
from: http://ncdrc.nic.in/bare_acts/Consumer%20Protection%20 2016;19:S15‑20.

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