MEDICAL NEGLIGENCE AND HOSPITALS

Hospitals in India may be held liable for their services individually or vicariously. They can be charged with negligence and sued either in criminal/ civil courts or Consumer Courts. As litigations usually take a long time to reach their logical end in civil courts, medical services have been brought under the purview of Consumer Protection Act,1986 wherein the complainant can be granted compensation for deficiency in services within a stipulated time of 90 -150 days.

Cases, which do not come under the purview of Consumer Protection Act, 1986 (e.g., cases where treatment is routinely provided free of cost at non-government or government hospitals, health centers, dispensaries or nursing homes, etc.) can be taken up with criminal courts where the health care provider can be charged under Section 304-A IPC for causing damages amounting to rash and negligent act or in Civil Courts where compensation is sought in lieu of the damage suffered, as the case may be.

Liability of hospitals in cases of negligence
Hospitals liability with respect to medical negligence can be direct liability or vicarious liability. Direct liability refers to the deficiency of the hospital itself in providing safe and suitable environment for treatment as promised. Vicarious liability means the liability of an employer for the negligent act of its employees. An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of ‘respondeat superior’ meaning ‘let the master answer’. Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per alium facit per se", i.e. the one who acts through another, acts in his or her own interests. This is a parallel concept to vicarious liability and strict liability in which one person is held liable in Criminal Law or Tort for the acts or omissions of another. An exception to the above principle is ‘borrowed servant doctrine’ according to which the employer is not responsible for negligent act of one of its employee when that employee is working under direct supervision of another superior employee [e.g. Where a surgeon employed in one hospital visits another hospital for the purpose of conducting a surgery, the second hospital where the surgery was performed would be held liable for the acts of the surgeon].

Direct liability
A hospital can be held directly liable for negligence on many grounds.

Failure to maintain equipments in proper working condition constitutes negligence. In case of damage occurring to a patient due to absence/ non-working equipment e.g. oxygen cylinder, suction machine, insulator, ventilator etc. the hospital can be held liable.

Failure to hand over copies of medical records, X-rays, etc., constitutes negligence or deficiency in service6. In India, a provision in respect of medical records has been made in The Indian Medical Council [Professional conduct, Etiquette and Ethics] Regulations 2002, Regulations 1.3.1 and 1.3.2 which state that every registered medical practitioner has to maintain medical records pertaining to its indoor or outdoor patients for a period of at least three years from the date of commencement of treatment in the prescribed form given by MCI and if any request is made for medical records either by patient/ authorized attendant or legal authorities involved, the same may be duly acknowledged and documents be issued within the period of 72 hours7. Also it must not be forgotten that it is the right of every patient to obtain in writing about his/her medical illness, investigations and treatment given on a prescription/ discharge ticket. Non-providing of medical records to the patients/ attendants may amount to deficiency in service under the Consumer Protection Act, 1986.

Improper maintenance of cleanliness and/or unhygienic condition of hospital premises amounts to negligence. In Mr. M Ramesh Reddy v. State of Andhra Pradesh [2003 (1) CLD 81 (AP SCDRC)], the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean [in this case the bathroom was covered with fungus and was slippery], 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.

A curious issue is that of liability in cases of polyclinics. Polyclinic means a place where doctors of different specialties practice with common staff and other facilities. Since every doctor is practicing individually, he would be responsible for his own negligence and not for others. But a particular doctor may also be vicariously liable for negligence of staff of the polyclinic, if the negligence occurs during the care of his particular patient in addition to the polyclinic being held liable for the negligence of its staff. The other doctors may get involved as partners of the polyclinic depending upon the agreement between them.

Where the ambulance service provider, usually a hospital, professes that the ambulance is equipped with life-saving equipment and such equipment is either absent or non-functioning, it is liable for negligence in case of a mishap. In the United Kingdom, even delay in arrival of ambulance has been held negligent on the part of hospital as even a common man knows the importance of properly equipped ambulance arriving on time in saving a life [Kent vs Griffiths, (2002) 2 AII ER 474].

Levying of excess/ wrong charges is considered as deficiency of service and can be claimed under Consumer Protection Act and in Civil Court. Charging for a bed facility which was not provided, taking surcharges, amount taken as medicolegal charges etc. are examples where hospitals can face litigations. A patient can file a complaint in Consumer Court if the hospital charges fees in excess of that mentioned in the list of charges displayed or disclosed or agreed upon.

With regards to HIV & HBsAg, most of the hospitals have made it mandatory to get all their indoor patients investigated for HIV & HBsAg. These investigations are not a part of any treatment and are done without prior consent of the patient. Carrying out such investigations without the consent that too for reasons not related to the treatment of the patient can be considered as unethical practice and either a complaint can be lodged with State Medical Council or charges/ damages can be claimed through civil litigation or consumer forum. HIV testing is either mandatory or voluntary. When testing is legally done without the consent of the person, it is known as mandatory testing e.g., for screening donors of blood, semen, organs or tissues in order to prevent transmission of HIV to the recipient of the biological products. In all other circumstances, it has to be voluntary, i.e., with the knowledge and express written consent of the person as it is necessary to respect the individual’s need to maintain confidentiality.
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.

As applicable to any other organization, hospitals too cannot blanketly refuse to give employment on the basis of an individual’s HIV status. It depends on what job a particular person is to be employed for. A sero-positive individual can be employed if there is no question of him/her coming in contact with patients or procedures that can result in spread of infection. If any person on the rolls of a hospital is found to be sero positive or develops AIDS, the hospital should review that person’s staff privileges and determine whether or not the medical condition interferes with the persons’ ability to perform on the job and whether the condition creates a health risk to the patients. The Centre for Disease Control [CDC] although does not advise that HIV positive individuals be routinely restricted from performing surgery, it does recommend that the restrictions be determined on a case by case basis. The employee could be given other duties in the hospital that involves lesser degree of direct patient care or could be required to use extra safety precautions while dealing with patients. There is no generally accepted medical evidence that HIV can be transmitted through normal day to day contact in typical private workplace setting. The CDC has issued guidelines that recognize that, with the exception of health care workers and personal service workers who use instruments that pierce skin, no testing or restriction is indicated for workers known to be infected with HIV but otherwise is able to perform their jobs. If any hospital does not follow the guidelines and there results an infection of the patient, it can be held directly responsible for negligence.

Misleading signboards, prescription slips and advertisements of hospitals can be construed as deficiency in service or unfair trade practice under the Consumer Protection Act, 1986 and damages can be awarded for such practices. Wrong claims of availability of certain facilities like some hospitals claiming in their sign boards/ prescription slips that 24 hr emergency services are available in their setup but in fact they lack basic emergency facilities like services of a doctor round the clock, necessary equipment in working order, intensive care facilities etc. construes negligence. Wrong depiction of qualifications of doctor like MD [Gyn.] against a doctor’s name creating an impression and misleading the patients that the doctor possesses PG degree in Gynecology whereas it was obtained from Germany and was equivalent to MBBS as per rules of MCI may also be construed as negligence [1993 (1) CPR 422 (NCDRC)]. Claiming guaranteed results for operative procedures that do not give desired outcome also amount to negligence.

Vicarious liability
A hospital can be held vicariously liable on numerous grounds on different occasions.

Several High Court Judgments have held hospitals vicariously liable for damages caused to the patients by negligent act of their staff. In one judgment of the Kerala High Court in Joseph @ Pappachan v. Dr. George Moonjerly [1994 (1) KLJ 782 (Ker. HC)], in support of the following effect stated that ‘persons who run hospital are in law under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel. They must do it by the staff which they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs other to do his duties for him. In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)], it was held that it was the hospital that was offering the medical services. The terms under which the hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. It is expected from the hospital, to provide such a medical service and in case where there is deficiency of service or in cases, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability by stating that there is no master-servant relationship between the hospital, and the surgeon who performed the operation. The hospital is liable in case of established negligence and it is no more a defense to say that the surgeon is not a servant employed by the hospital, etc. In another judgment by the National Consumer Redressal Commission in case of Smt. Rekha Gupta v. Bombay Hospital Trust & Anr. [2003 (2) CPJ 160 (NCDRC)], related to negligence of a consultant doctor, the Commission observed that the hospital who employed all of them whatever the rules were, has to own up for the conduct of its employees. It cannot escape liability by mere statement that it only provided infrastructural facilities, services of nursing staff, supporting staff and technicians and that it cannot suo moto perform or recommend any operation/ amputation. Any bill including consultant doctor’s consultation fees are raised by the hospital on the patient and it deducts 20% commission while remitting fees to the consultant. Whatever be the outcome of the case, hospital cannot disown their responsibility on these superficial grounds.

The hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the anesthetists and surgeons, who practice independently but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services. The terms under which the defendant hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. The patients go and get themselves admitted in the hospital relying on the hospital to provide them the medical service for which they pay the necessary fee. It is expected from the hospital, to provide such medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability due to reason of non-existing master-servant relationship between the hospital and the surgeon.

There are many instances where a senior or super-specialist performs surgery in a centre where such expertise is not locally available. After the surgery, the post-operative care is left to the local competent doctor. Failure of the senior/ super specialist to personally supervise the postoperative care may not constitute negligence provided the doctor to whom responsibility of the post operative care lies is competent; same applying to a visiting physician. It has been held by National Consumer Redressal Commission [1993 (3) CPR 414 (NCDRC)] that in case of the operation being performed in an institution, it is the duty of the institution to render postoperative treatment and care to the hospital’s patients. Quite often foreign doctors undertake operations in India and it cannot be maintained that the post operative care and treatment shall continue to be provided by the foreign doctor who may no longer be in the country. But same may not be held in every case if the visiting surgeon never inquires about the condition of the patient and leaves the patient for postoperative care and follow up treatment to the competence of the other surgeon who was unable to properly treat and look after the patient and the patient dies. Here the treating doctor can also be made party to the negligence.

In many cases of negligence against government hospitals, it has been held that the State is vicariously liable for negligence of its doctors or staff or even primarily liable where there is lack of proper equipment or staff. In few cases, court has passed orders to the effect that the compensation paid to the complainant may be recovered from the government doctors whose negligence has been established. The Honorable Supreme Court in Achutrao & ors v. State of Maharashtra & Ors [JT 1996(2) SC 664] has observed that running a hospital is a welfare activity undertaken by the Government but it is not an exclusive function or activity of the Government so as to be regarded as being in exercise of its sovereign power. Hence, the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees. In another case of Smt. Santra v. State of Haryana & Ors [(2005) 5 SCC 182], the contention that the State is not vicariously liable for the negligence of its officers in performing the sterilization operation was not accepted in view of the above judgment of the Supreme Court of India. In another case of Rajmal v State of Rajasthan [AIR 1996 Raj. HC 80], where the patient died of neurogenic shock following laparoscopic tubal ligation done at a primary health centre, an enquiry committee constituted on the directions of the Rajasthan High Court found that the doctor was not negligent in conducting the operation, nor his competence, integrity or efforts were doubted. It was lack of adequate resuscitative facilities and trained staff that was held responsible for the death and the State Government was held vicariously liable and was directed to pay compensation to the husband of the deceased. In another case of Dr. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors [AIR 2001 Ker. HC (DB) 398], where patient had died following post partum sterilization, the Court found negligence on part of the defendants and liability was fixed on State Government, anesthesiologists and other staff instead of holding only the State vicariously liable. The Honorable Punjab and Haryana High Court, in Punjab State v. Surinder Kaur [2001 ACJ 1266 (P&H-HC], has stated that the doctor working in a government hospital was performing the duty while he/ she was under the employment of the State and in these circumstances, the master is always responsible for the vicarious liability of the acts committed by the employee in the course of such employment. It is for the State to determine the liability of the erring doctors. It is their internal affair but so far as patient is concerned she can recover the amount from the State Government. It is the duty of the authorities under the State to see that its employees are available in time in the hospital. If for any reason, a doctor or expert is not available, the Hospital authorities would have known before hand and some other persons should be posted. The primary responsibility of the Hospital authorities is to see that there is no negligence on its part or on the part of its officers. The non-providing of a doctor or anesthetist or an assistant is essentially a lapse on the part of hospital authorities and are thus liable for negligence. In R. P. Sharma v. State of Rajasthan [AIR 2002 Raj. HC (Jpr. Bench) 104], where a woman died because of mismatched blood transfusion, the State was held vicariously responsible for the negligent act of its blood bank officer and the doctor who transfused the blood. It was further held that the State of Rajasthan is free to recover the amount from those doctors. In Rukmani v. State of Tamil Nadu [AIR 2003 Mad. HC 352], the Madras High Court observed that in India where the population is increasing each second and family planning is a national programme, the doctor as well as the State must be held responsible in damages on account of failure of a sterilization operation which is directly responsible for an additional birth in the family, creating additional economic burden on the family.

Compensation can be awarded to an injured person for not being provided treatment in a Government hospital or for death or injury caused therein because of negligence. In the case of Paschim Bangal Khet Mazdoor Samity & Ors v. State of West Bengal [1996 (4) SC 260], the Honorable Supreme Court held that providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. Failure on the part of government hospital to provide timely medical treatment to a person in need of such treatment is violation of his right to life guaranteed under Article 21 of Indian Constitution [death of the patient occurring for not being admitted/ given proper treatment for want of bed in a government hospital].

Appointing practitioners of Alternative Systems of Medicine [Ayurveda/ Unani/ Sidha] or Homeopaths in hospitals giving services in allopathy too amounts to negligence. It is the duty of the hospital to provide properly qualified, skilled and experienced doctors for treatment. The Supreme Court of India has held that there is no scope for a person who is registered under the Indian Medicine Central Council Act, 1970 [Council for registration of practitioners of Indian Medicine – Ayurveda, Unani and Sidha] and enrolled on the State or Central Register of Indian Medicine to practice modern scientific medicine [allopathy] in any of its branches. All that is allowed to such practitioners is to make use of the various modern advances like radiology reports, laboratory investigations etc. for the purposes of practicing in their own system. However, if any State law recognizes the qualification of integrated courses or other qualifications as ‘sufficient qualification’ for registration in the State Medical Register, within the meaning of the Indian Medical Council Act, 1956 on being registered in the State Medical Register, he is eligible to practice allopathic medicine. This benefit would be available only in those States where the privilege of such right to practice any system of medicine is conferred by the State law which is for the time being in force, under which practitioners of Indian Medicine are registered in their State Medical Register. However, in the States where no such privilege is available, this does not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments. The same rule does not apply for homeopaths as their registration is restricted to Homeopathic Practitioners Act, 1959.