______________________________________________________________________

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SUBJECT – HEALTH LAWS

Liability of Doctors and Hospital under the Consumer

Protection Act, 1986

Supervised By - Miss. Ashika Pradhan

Submitted By -
NAME: SAIF ALI

CLASS ROLL NO - 50

COURSE: - 3 YEARS LLB /5TH SEM

 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my

sincerest thanks to Ms. Ashika Pradhan, Asst. Prof Indian Institute of Legal

Studies, for his/her invaluable guidance, sound advice and affectionate attitude

during the course of my studies.

I have no hesitation in saying that he/she moulded raw clay into whatever I am

through his/her incessant efforts and keen interest shown throughout my

academic pursuit. It is due to his/her patient guidance that I have been able to

complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of

information therein. I also express my regards to the Library staff for cooperating

and making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

Date: SAIF ALI

NAME
 CONTENTS

i. INTRODUCTION 01

ii. NEGLIGENCE 03

iii. ESSENTIALS 06

iv. LIABILITY 08

v. WHO IS A CONSUMER? 10

vi. AIMS AND OBJECTS OF

CONSUMER PROTECTION ACT 11

vii. CASE STUDY 12

viii. CONCLUSION 15

ix. BIBLIOGRAPHY 16
 RESEARCH METHODOLOGY

A. AIMS AND OBJECTIVES

Before going into the details of the project topics, it is necessary to understand its
objectives. The objectives of my projects are its core. In order to achieve the objectives
principles are prescribed and then mandates are formulated to serve the principles. If
mandates are given without comprehending the objectives, there is a possibility of the
mandate being applied to particular issue in a way that forfeits the very essence of the law

B. RESEARCH QUESTION

1. What are the Liability of Doctor and Hospital under Consumer Protection Act, 1986 ?
2.What are the essentials of Doctors and Hospitals?

C. RESEARCH HYPOTHESIS

In this project topic researcher try to find out the liability and duties of doctors and
hospitals in India. In this project topic researcher study the liability during negligence by
Medical practitioner and hospital.

E. METHODS OF RESEARCH
Research is to know about something of which you have curiosity. There are two types of
research methods - (i) Doctrinal and; (ii) Non- Doctrinal. In this report both methods are
used. The research was conducted under the supervision of faculty of Health Laws.

TABLE OF CASES

Jacob Mathew

v.

State of Punjab
 INTRODUCTION
Lately, Indian society is experiencing a growing awareness regarding patient's
rights. This trend is clearly discernible from the recent spurt in litigation
concerning medical professional or establishment liability, claiming redressal for
the suffering caused due to medical negligence, vitiated consent, and breach of
confidentiality arising out of the doctor-patient relationship. The patient-centered
initiative of rights protection is required to be appreciated in the economic context
of the rapid decline of State spending and massive private investment in the
sphere of the health care system and the Indian Supreme Court's painstaking
efforts to Constitutionalize a right to health as a fundamental right. As of now, the
adjudicating process with regard to medical professional liability, be it in a
consumer forum or a regular civil or criminal court, considers common law
principles relating to negligence, vitiated consent, and breach of confidentiality.
However, it is equally essential to note that the protection of patient's right shall
not be at the cost of professional integrity and autonomy. There is definitely a
need for striking a delicate balance. Otherwise, the consequences would be
inexplicable.
In the context of obtaining processes, there is a deserving need for a two-
pronged approach. On one hand, the desirable direction points towards
identification of minimum reasonable standards in light of the social, economical,
and cultural context that would facilitate the adjudicators to decide issues of
professional liability on an objective basis. On the other hand, such identification
enables the medical professionals to internalize such standards in their day-to-
day discharge of professional duties, which would hopefully prevent to a large
extent the scenario of protection of patient's rights in a litigative atmosphere. In
the long run, the present adversarial placement of doctor and the patient would
undergo a transformation to the advantage of the patient, doctor, and society at
large.
 NEGLIGENCE

There are distinct definitions for negligence. It is 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. It must
be determined in all cases by reference to the situation and knowledge of the parties and all the
attendant circumstances.

Conduct which is below the standard behaviour established generally for protection of others
against unreasonable risk of harm is negligence. As per Winfield, “Negligence as a tort is the
breach of a legal duty to the care which results in damage, undesired by the defendant, to the
plaintiff.” Negligence doesn’t arise just because of a wrongful conduct by a person; it is essential
that that misconduct has caused a foreseeable harm to the other. If there’s no harm, there’s no
negligence. In King v. Phillips it was observed that the question of negligence arises only when
there is a direct harm to the plaintiff by the misconduct and the harm should be foreseeable.
Damage is an important ingredient to bring negligence under tort.

a) Negligence as a Tort
A tort is a residuary civil wrong. Duties in tort are fixed by the law and such duties are owed in
rem or to the people at large generally. Such wrongs can be remedied by filing for unliquidated
damages. There may also be cases where concurrent liability may exist under tort and contract.
For instance, if there is a contract existing between a patient and a doctor, then the doctor, for his
negligence, will be liable under contract.

b) Negligence under Contract

A contract may have express or implied terms. There are situations where there is a contract
between medical practitioners and patients. Even in the absence of an express stipulation to the

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effect that the practitioner will exercise reasonable skill and care in treatment of a patient, it is
taken as an implied duty arising out of the contract. Breach of this duty thus results in violation
of the contract.

c) Negligence as a Crime
Negligence as a crime has a different yardstick. Negligence under tort is determined on the
extent of the loss caused whereas negligence under criminal law is dependent on the degree or
amount of negligence. Courts have repeatedly held that the burden of proving criminal
negligence rests heavily on the person claiming it. Criminal law requires a guilty mind. If there is
a guilty mind, a practitioner will be liable in any case.

But if, under the criminal law, rashness and recklessness amount to crime, then also a very high
degree of rashness would be required to prove charges of criminal negligence against a medical
practitioner. In other words, the element of criminality is introduced not only by a guilty mind,
but by the practitioner having run the risk of doing something with recklessness and indifference
to the consequences. It should be added that this negligence or rashness or must be ‘gross’ in
nature.

d) Negligence under Consumer Protection Legislations

Ever since professions have been included under the purview of consumer protection laws;
medical practitioners too have felt the heat. It is on a footing different from any other kind of
negligence.

Under consumer protection laws, medical negligence is another form of deficiency in service. It
is most akin to the liability under the law of torts. But there is stricter and broader liability in this
situation as failure to exercise skill and care as is ordinarily expected of a medical practitioner is
the test under consumer protection laws.

Admittedly, doctors have an extremely difficult duty to perform. They are the ones in whose
hands a patient places what is most valuable to each human – their lives. It is for this reason that
doctors are expected to exercise a very high degree of skill and care, but this is also the precise
reason why they should not be inhibited in the exercise of their duty. Therefore the laws

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imposing liability on medical practitioners have been tailored to accord to practitioners
maximum possible protection.

e) Negligence by professionals
Professionals are persons professing some special skill or job, who are trained to profess in that
area specially and bear the responsibility of professing with due care. Such professionals include
lawyers, doctors, architects etc. The SC in Jacob Mathew v. State of Punjab, explained: a
professional entering into certain profession is deemed to have knowledge regarding that
profession and it is assured impliedly by him that a reasonable amount of care shall be taken to
profess his profession. The person can be held liable under negligence if he did not possess the
required skills to profess or he failed to take essential amount of care to profess the said
profession.

The law nowhere states that a professional shall be held liable if he fails to perform his skills, it
states that a professional shall take reasonable amount of care and shall possess knowledge as
compared to any practitioner in the same field. The skills of different professionals surely differs
from one another even if they are practicing in the same field but what is required is that a
professional has knowledge of new advances, discoveries and developments in his field so as to
give essential care to the consumers of his profession.

The failure to comply with this which any ordinary professional would have done properly
amounts to professional negligence liable under the law. This paper discusses the Medical
Negligence in detail in the following part.

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 ESSENTIALS

a) Doctor’s duty to attend the patient with care

Medicine is such a profession where a practitioner is supposed to have requisite knowledge and
skill needed for the purpose and has a duty to exercise reasonable duty of care while dealing with
the patient. The standard of the care depends upon the nature of the profession. A surgeon or
anaesthetist will be determined by the standard of average practitioner in that field while in case
of specialists, a higher skill is needed.

If the doctor or a specialist doesn’t attend a patient admitted in emergency or under his
surveillance and the patient dies or becomes victim of consequences which could have been
avoided with due care from the doctor, the doctor can be held liable under medical negligence.
This was held in Sishir Rajan Saha v. The state of Tripura that if a doctor did not pay enough
attention to the patients in government hospitals as a result of which the patient suffers, the
doctor can be held liable to pay compensation to the patient.

Moreover, the liability of the doctor cannot be invoked now and then and he can’t be held liable
just because something has gone wrong. For fastening the liability, very high degree of such
negligence was required to be proved. A doctor or a medical practitioner when attends to his
patients, owes him the following duties of care:

1. A duty of care in deciding whether to undertake the case

2. A duty of care in deciding what treatment to give
3. A duty of care in the administration of the treatment

When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable
cost. You expect the doctor to be knowledgeable about the latest advances in his field of
specialty, and educate you about your diagnosis and prognosis, and explore the best possible
solution to your health issue. In short, you expect to be healed. But for millions of people, what
they expect is far from what they receive.

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 b) Doctor acting in a negligent manner
It is well accepted that in the cases of gross medical negligence the principle of res ipso loquitur
(the principle that the mere occurrence of some types of accident is sufficient to imply
negligence) is to be applied. The principle of res ipso loquitur is said to be essentially an
evidential principle and the said principle is intended to assist the claimant. Res Ipso loquitur
means things speaks for itself; while deciding the liability of the doctor it has to be well
established that the negligence pointed out should be a breach in due care which an ordinary
practitioner would have been able to keep.

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if
he/she/it had exclusive control of whatever caused the injury even though there is no specific
evidence of an act of negligence, and without negligence the accident would not have happened.
A doctor is not an insurer for the patient, inability to cure the patient would not amount to
negligence but carelessness resulting in adverse condition of the patient would.
In Gian chand v. Vinod kumar Sharma it was held that shifting of the patient from one ward to
another in spite of requirement of instant treatment to be given to the patient resulting in damage
to the patient’s health then the doctor or administrator of the hospital shall be held liable under
negligence.

Also in Jagdish Ram v. State of H.P., it was held that before performing any surgery the chart
revealing information about the amount of anaesthesia ad allergies of the patient should be
mentioned so that an anaesthetist can provide ample amount of medicines to the patient. The
doctor in above case failed to do so as a result of the overdose of anaesthesia the patient died and
the doctor was held liable for the same.

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 LIABILITY

The liability of the person committing the wrong can be of three types depending on the harm or
the injury suffered by the injured person they are:-

1. Civil Liability– Civil liability usually includes the claim for damages suffered in the form of
compensation. If there is any breach of duty of care while operating or while the patient is under
the supervision of the hospital or the medical professional they are held to be vicariously liable
for such wrong committed. And are liable to pay damages in the form of compensation. At times
the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors.

If someone is an employee of a hospital, the hospital is responsible if that employee hurts

a patient by acting incompetently. In other words, if the employee is negligent (is not
reasonably cautious when treating or dealing with a patient), the hospital is on the hook
for any resulting injuries to the patient. In Mr. M Ramesh Reddy v. State of Andhra
Pradesh, the hospital authorities were held to be negligent, inter alia, for not keeping the
bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading
to her death. A compensation of Rs. 1 Lac was awarded against the hospital.

2. Criminal Liability- There may be an occasion when the patient has died after the treatment and
criminal case is filed under Section 304A of the Indian Penal Code for allegedly causing death by
rash or negligent act. According to S. 304A of the IPC, whoever causes the death of any person
by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment
for up to two years, or by fine, or both.

Hospitals can be charged with negligence for transmission of infection including HIV,
HBsAg, etc. if any patient develops such infection during the course of treatment in the
hospital and it is proved that the same has occurred on account of lapse on part of the
hospital then the hospital can be held liable for lack of reasonable duty to care.

4. Further In Dr. Suresh Gupta’s Case – Supreme Court of India, 2004 – the court held that the
legal position was quite clear and well settled that whenever a patient died due to medical
negligence, the doctor was liable in civil law for paying the compensation. Only when the

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 negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal
law for offence under section 304A of Indian Penal Code, 1860 will apply. Indian Penal Code,
1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical
malpractice in India.

5. The conduct of medical malpractice was brought under the Consumer Protection Act, 1986, due
to the landmark case of the Indian Medical Association vs. V. P. Shantha & others, The
judgment in this case defined medical care as a “service” that was covered under the Act, and also
clarified that a person seeking medical attention may be considered a consumer if certain criteria
were met.

(i) The service provided was not free of charge or for a nominal registration fee;
(ii) If free, the charges were waived because of the patient’s inability to pay;
(iii) The service was at a private hospital that charges all patients; or
(iv) Any service rendered which was paid for by an insurance firm.
This meant that certain categories of patients could now sue errant health care providers
for compensation under the Consumer Protection Act, 1986, as a breach of contract. Only
facilities and doctors that provided all services free of cost to all clients were not liable
under the CPA. However, even patients that do not fall under the category of consumers
under the Act can sue for negligence under the law of Torts. The burden to prove
negligence, however, is on the patient.

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 WHO IS A CONSUMER?

Under section 2 (d) of Consumer Protection Act, 1986, the world Consumer has been defined
separately for the purpose of goods and services.
A Consumer means a person who-

(i) buys any goods for consideration which has been paid or promised or partly
promised or partly paid or under any system of deferred payment and
includes any user of such goods for consideration paid or promised or partly
paid or partly promised or under any system of deferred payment when such
use is made with the approval of such person, but does not include any
person who obtain such goods for resale or for any commercial purpose.

(ii) who hires any service or services for consideration which has paid or
promised or partly paid or partly promised or under any system of deferred
payments and includes any beneficiary or such services other than the person
who heirs or avails of the services for consideration paid or promised, partly
or partly promised or under any system of deferred payment when such
services are availed of with the approval of the first mentioned person. Every
person who hires or avails services of a medical practitioner after payment
comes within the ambit of consumer section 2 (1) (0) of Consumer
Protection Act, 1986. A patient is also a consumer. The activity of providing
medical assistance for payment carried on by hospitals and members of
medical profession falls within the scope of service as defined under section
2 (1) (0) of the Act and the persons who avails such services is a consumer
under the Act. A consumer is not only the person who hires or avails any
services for consideration but also the person who is beneficiary of such
services.

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 AIMS AND OBJECTS OF CONSUMER
PROTECTION ACT

Consumer Protection Act, 1986 is a very unique and highly progressive piece of social welfare
legislation and the provisions are intended to provide effective and efficient safeguards to the
consumers against various forms of exploitations and unfair dealings. It is a handy weapon of
consumer to ensure accountability of service providers. The main objective is to promote and
protect the rights of consumers such as-

a) the right to be protected against the marketing of goods, which are hazardous to
life and property

b) the right to seek redressed against unfair practices or unscrupulous exploitation of

consumers

c) the right to be heard and to be assured that consumers interest will receive due
consideration at appropriate form

d) the right to be informed about the quality, quantity, potential, purity, standard and
price of goods so as to protect the consumer against unfair trade practices. It is
essential the consumers need to be aware of their rights as well as how to get a
redressal for their grievances so as to avoid becoming the victims of such
exploitation.

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 CASE STUDY

Jacob Mathew

v.

State of Punjab

Facts:-

On February 15, 1995, the informant's father, was admitted as a patient in the private ward of a
hospital. On February 22, 1995 at about 11 p.m., the patient felt difficulty in breathing. The
complainant's elder brother, who was present in the room contacted the duty nurse, who in turn
called a doctor to attend to the patient. No doctor turned up for 20-25 minutes. Then doctors
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. Son of the patient went to the adjoining room
and brought a gas cylinder. However, there was no arrangement to make the gas cylinder
functional and meanwhile, 5-7 minutes were wasted. By this time, another doctor came and
declared that the patient was dead. The complaint as per records reads as follows. “The death of
my father has occurred due to the carelessness of doctors and nurses and nonavailability 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
cremation and for information I have come to you. Suitable action be done.”

On the above said report, an offence under Sections 304-A and 34 of the Indian Penal Code was
registered and investigated. 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
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appellant was available to be urged in defense at the trial and therefore, a case for quashing the
charge was not made out. Feeling aggrieved the appellant has filed these appeals by special leave
before the Supreme Court. The Supreme Court gave the Guidelines—regarding prosecuting
medical professionals as follows: 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 the Indian Penal Code. 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 prosecution. 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 of 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 in regard 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 leveled

12
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.

The above judgment gives relief to the medical profession. However, no immunity is
conferred—The judges have left to the Central and State Governments to give rules and
regulations, as in India it is a state subject. These guidelines prescribe opinion from a proper
Government doctor before proceeding against a doctor. The accused doctor can present his
defense by obtaining from expert of choice after the case is charge sheeted and the case comes
before the court for examination.

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 CONCLUSION

It is not stated that doctors are negligent or irresponsible but while performing the duty which
requires a lot of patience and care, often many practitioners fail or breaches their responsibility
towards the patient. Medicine which is one of the noblest professions requires setting a realm
which can benefit the victims of various diseases. Many doctors even the specialist sometimes
neglects small things to be taken care of while practicing which may result in damages to the
patients that could have been avoided or sometimes even the death of the patients.

This type of professional negligence needs more focus than to include it in other laws or statutes.
An independent and unique legislature shall be set up to govern the malpractice. In our country
recently in a case Krishna Iyer v. State of Tamilnadu and Others the Apex Court awarded a
compensation of 1.8 crores on July 1, 2015 as she lost her eyes in 1996. This is highest amount
of compensation awarded in the country. Many activists and the victims of medical negligence
have been alleging to get redressal against malafied acts of medical practitioners and doctors.

Not just for medicine, the law shall be made applicable to all the professionals practicing in
different areas which require a requisite amount of skill and duty of care. People in our country
are already victims of many diseases and are dying due to same, let’s make efforts to reduce
these deaths and focus on improvising the profession so that people do not die in the place where
they come to get healed.

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 BIBLIOGRAPHY

i. The Law Dictionary

ii. Spring Meadows Hospital v. Harjot Ahluwalia, A.I.R. 1998 S.C. 1801

iii. Soni Hospital v. Alum Biyer, A.I.R. 2011 Mad. 208 at 214

iv. A.I.R. 2008 H.P. 97

v. A.I.R. 2007 (NOC) 2498 (H.P.)

vi. http://www.nolo.com/legal-encyclopedia/medical-malpractice-patients-sue-hospital

negligence-30189.html

vii. [2003 (1) CLD 81 (AP SCDRC)]

viii. Sharma J and Bhushan V. Medical Negligence & Compensation. 2nd Edition. New

Delhi: Bharat Publications; 2004.

ix. http://www.lawyersclubindia.com/articles/Criminal-liability-for-medical-negligence-a

drastic-change–1713.asp#.VdNy-LKqqko

x. Dr. Suresh Gupta vs. Government of N.C.T. of Delhi, August 4, 2004, Supreme Court of

India, AIR 2004 SC 4091

xi. 2015 STPL(Web) 1239 SC

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