HEALTH AND

THE LAW
Ignorance of law is no excuse

Dr.Norboo Angchuk
MBBS;MHA;PGDHHM;DGM(Geriatrics)
1/16/2011
 HEALTH AND THE LAW
Dr.Norboo Angchuk MBBS;MHA;PGDHHM;DGM(geriatrics)

Ignorance of law is no excuse

{A}Major legislations

1) Constitution of india, 1950

2) Consumer protection act,1986

3) The Law of Torts (Medical Negligence)

4) Indian Penal Code,1860

5) Medical council Act, 1956

6) Employers state Insurance Act,1948

1.Constitution of india, 1950

Article 21 states that no person shall be deprived of his lifeor personal liberty
except according to the procedure established by the law ( the fundamental right to
life).
Article 47 states that it is the duty of the state to raise the level of nutrition and the
standard of living of its people and to improve public health ( this is a directive
principle and not fundamental right)

Article 32 gives every citizen the right to ask the supreme court to enforce his or
her fundamental rights( the right to enforce fundamental right)

2. Consumer protection act,1986

Enables a consumer patient to make a complaint to a redressal forum in respect of

a defective service provided that the service has been paid for. Defective in the
context of a doctor’s service means negligent. Service does not include a free
service or a service given under a contract of personal service. Some doctors tried
to argue that their service was one of personal service but the courts disagreed. A
personal service has been held to apply to a master and servant relationship
only.S.4 COPRA sets up the central consumer protection council with the object of
protecting the following rights set up

a) Right to safety b) Right to be informed c) Right to

choose
 d) Right to be heard e)Right to seek redressal d) Right to
consumer education.

3)The Law of Torts (Medical Negligence)

a) Negligence is a Tort i.e a wrong done by one person to another. In medical terms
it has been defined as “ a mistake by a medical practitioner which no reasonable
competent and careful practitioner would have committed”( A.S Mittal V/S State of
UP1989)

b) In order to bring a successful claim for compensation against a doctor in a forum

or court the patient must prove negligence. It may take the following forms.

i) Negligent diagnosis

ii)Negligent operation

iii) Failure to listen to a patients complaint.

iv)Negligent administration of a wrong drug

v)Negligent exposure of a patient to the risk of infection.

vi)Negligent advice about the risk of an operation or negligent failure to warn a

patient of such risks

vii) Inadequate supervision or staffing in a nursing home

viii) Negligent administration of an injection e.g injecting the wrong solution,

injecting the solution into an artery instead of a vein or into vein instead of a muscle
or break theneedle in the body of a patient.

ix) Leaving an instrument or swab inside a patient during operation.

x)Failure to obtain consent of the patient-oral consent is in-sufficient(vadivel-v-

gopalkrishnan)

c) some cases where patients have proved negligence of the doctor or the hospital.

Ram bihari lal v/s Dr.J.N Srivastava (AIR 1985 MP 150)

A woman of 32 was admitted to a government hospital for an appendectomy to which her husband
consented. When the Surgeon was operating, having observed that her appendix was normal, he
removed her gall bladder. The operation involves more major surgery for which she had not been
prepared. Neither she nor her husband had given their consent.She had not had all the pre-operation
tests. The Hospital was ill-equipped having no facilities for administering oxygen, blood transfusion,
and no anesthetist. The patient was given chloroform as anesthetic. She died as a result and her
husband brought a case. On appeal, the court found that the patient died due to rash and negligent
act of the doctor and that her husband was entitled to compensation from the doctor.
d)Some examples of cases where deficiency in medical or related services have
been proved.

Kumar v/s sunil blood bank and others(SDRC, Delhi1991 CPJ 684)

The complainant purchased a unit of blood from the blood bank on the advice of his
wife’s doctor prior to the delivery of her child be caesarean section. The blood was
given to her and she contracted Hepatitis B as a result of the blood being
contaminated.She passed it to her husband and they claimed compensation under
COPRA from the blood bank for four months of acute physical and mental suffering
due to supplying of the contaminated blood. The state forum awarded the
complainant and his wife Rs20,000.00.

4) The Indian Penal code.

a)S.304 Causing death by negligence.

This crime is committed when someone causes death of any person by doing any
rash or negligent act not amounting to culpable homicide. It may apply in medicine
where a doctor has no intention to cause death and no knowledge that the act he
does in all probability would cause death.Note that the rash or negligent act must
be the direct cause of death.

What is meant by rashness?

Criminal rashness is performing a dangerous or wanton act knowing it is so and that

may cause injury but without the intention to cause injury or knowledge that it will
probably be caused- in other words acting with indifference to the consequence.

What is meant by Negligence?

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 an individual, which, having regard to all the circumstances it
was the imperative duty of the accused person to have adopted.

It is clearly less likely that a patient will be able to prove criminal negligence against
a doctor than ordinary negligence.However there have been some successful
prosecutions brought.

Juggan khan AIR1965 SC831

A homeopathic practitioner administered to a patient suffering from guinea worm24 drops of
stramonium and a leaf of dhatura without studying its effect. The Patient died. He was found guilty of
causing death by criminal negligence.

b) S.336 Endangering life by criminal Negligence.

 This crime is committed when someone does any act so rashly or negligently
as to endanger human life or the personal safety of others. Rash or negligent
act are punishable even if no harm follows.

If a person causes hurt or grevious hurt or she is punishable under

S.337(hurt) or s.338( grevious hurt); Again it is difficult to prove this in the
case of a doctor.

There has been a case of a native phyisician(hakim) who performed an operation with an
ordinary scissor and sutured the wound with an ordinary needle and thread. The instruments
were not disinfected and the patient’s eye sight was permanently damaged. The court said
that the hakim had acted rashly and negligently underS.337.

Criminal negligence should be distinguished from the meaning of the

negligence in tort. Clearly if criminal negligence is proved against a doctor a
claim for damages by the family of the patient in a civil court must succeed
but failure to prove criminal negligence by the family of the patient in a civil
court must succeed but failure to prove criminal negligence in not fatal to
bringing acase for damages for negligence in a civil court.

c)Ss.87-90(consent)

The Indian penal code states that it is criminal to operate upon a person or
treat or administer drugs to a person without his or her consent. Valid
consent cannot be given under:

i) Under fear or injury or

ii) Under misconception of fact if the person doing the act( in this case of
doctor) knows or has reason to believe that the consent was given in
consequence of such fear or misconception.

iii) By a person of unsound or person who is intoxicated and is therefore

unable to understand the nature and consequence of that to which he
has given his consent.

iv) By a child under12 years.

v) S.P2 states that consent does not have to be given in an emergency

where,for example, treatment is given and the act done in good faith
for the benefit of the person without consent.

5) The Medical Council Act 1956

The act provides for the setting up of the Medical Council of India with powers to
control the medical profession. It controls the education of doctors, recognition of
degrees, their registration and ethics. It can remove a doctors name from the
register for immorally involving abuse of the doctor-patient relationship or for
certain criminal conviction and on the recommendation of the state Medical
Councils.

Medical Council of India code of Medical ethics.

State Medical council investigate complaints of professional misconduct.Such

complaints must be in writing, signed by the complainant and set out all the
relevant facts.Each state has a set of Medical Council rules.

7) The Employee State Insurance act 1948 as amended

The act set up the Employees state insurance corporation to administer a

scheme whereby factory workers would be entitled, amongst other things , to
receive free medical benefits,(s.56) Medical benefits consists of complete
medical care free of cost to the insured person,(and his family, if the benefit
has been extended to them) and comprises:

• Out patient care

• Supply of dressing and drugs

• Specialist services

• Pathological and radiological investigations

• Domicilliary services

• Antenatal , natal, and post natal services

• Immunisation

• Family planning

• Emergency services

• Ambulance services

• Health education

• In-patient treatment

{B} Which Tribunal

Complaints against a doctor and or a hospital may be dealt with by:

i) The Consumer Redressal forums

ii) The Civil courts

 iii) The Criminal courts

The appropriate State Medical Council

iv) The union and state Governments grievance procedure

v) The supreme court.

The tribunal you select will depend on the remedy sought

{III} Remedies Available to the public

1. Under COPRA (at consumer redressal forum)

Damages(compensation)

On proof of negligence against a doctor or hospital, provided that payment has been made, an award of
negligence will be made.This award is supposed to be compensate the patient or his family by putting him
into the position he would have been in, had the negligence not occurred, damages etc.

a) Pecuniary i.e actual monetary loss sustained by the complainant.

b) Non-Pecuniary i.e Compensation of pain and suffering and loss of enjoyment of life.

These sort of damages are for the court to quantify but you can get an idea of how much an injury is
worth from previous cases.

Interest

You should always ask for interest on an award of damages to cover the period from the filing of the
claim to the date of trial. This may represent a large sum of money.

Note: It is now well established that the redressal forums have the same powers as a civil court to
summon and enforce the attendance of witness and examine them on oath to order discovery and
production of documents.The also have the power to issue commissions for the examination of witness.
(sukur v/s the state of Orissa & others vol 11CPJ202)

How to choose the right form of adjudication

(a) The main purpose of COPRA was to provide simple and speedy remedies to complainants.This
has been effected by setting up the consumer redressal forums where cases have to be heard
within three months of being filed. If the consumer/patient complains about a deficiency of
service of a doctor or hospital to whom she/he has paid money, then one has to go to the relevant
CRF. If the service was free then, as the Law stands at the moment, the aggrieved person will
need to file a claim in the civil court. The lawyer should advise the patient that this will take a
very long time. Some people may not be prepared to suffer the stress involved in lengthy
litigation.

(b) Alternatively, or additionally, the lawyer may advise the patient to make complaint to the state
medical council. Even though such complaints rarely result in the doctor being removed from the
 register. It will be unpleasant for the doctor to have to deal with the allegations and may make
him more careful with the next patient.

(c) If the complaint is against a government hospital or health service the patient may also be
recommended to complain to the hospital concerned. All large hospitals have a grievance officer
(a doctor). Alternatively the patient can complain to the ministry of health at state or union level.

(d) If the conduct of the doctor amounts to criminal negligence, then the lawyer may advise the
patient to prosecute the doctor.

(e) If the case involves the violation of right to life under article 21 of the constitution as a matter of
public interest, the lawyer can go to the High court or the supreme court. In the case of public
cause, remember that anyone can start a case in the supreme court, not just an individual, and the
supreme court has the power to grant almost any remedy. Remember, however, that the case will
not be heard as quickly as in consumer court.

How to bring a case in the District/state/National forum

(CAG,MADRAS has prepared a step by step guide to bringing proceedings.)

How to bring a case in civil courts.

1) It may be that at this stage you will pass the case to a civil court, particularly if legal aid is
available, but you may need to know about the procedure in order to make sure the lawyer is
pursuing it properly, the aggrieved person may wish to undertake the proceedings oneself.

2) Civil proceedings are regulated by the code of civil procedure 1908.S.15 says that the court in
which a suit should be instituted must be the lowest grade of court competent to deal with it. This
is determined by pecuniary jurisdiction. In Delhi a claim which is estimated to be worth under
Rs5/- lakh goes to the district court. Rs5/ lakh and over goes to high court. Pecuniary units are not
the same countrywide. So you will need to check the position in your local courts. For the most
part, a claim against the negligent doctor will be determined by the district court for the district
where the negligence took place or where the doctor lives or works.

3) You must estimate the worth of the claim.This may be difficult in a medical negligence case
because of the “pain and suffering” element which if for the court to quantify. You could get an
idea from looking at some awards of compensation in motor claims cases. These are well
documented in specialist law books on the subject.

4) Every case must be started by presenting a “plaint”(i.e request) to the court together with a fee
which depends on the amount you are claiming. This is registered and the opponent will be sent a
summon and a copy of the plaint by the court, or you can deliver it by hand, accompanied by a
process server from the court. This tells the opponent to appear and answer the claim on a certain
date, bringing his witness and documents with him. He is told that he can pay the money claimed
into the court if he wishes. At this stage or before the first hearing, your opponent is required to
present the plaintiff with a written defence setting out his answer to the claim and any counter
claims he may have against the plaintiff.
 The plaint must be set out in writing:

• Name of the court

• Name, description and residence of the parties if the plaintiff (You) or the defendant(your
opponent) is a person of unsound mind or a minor, a statement to that effect.

• The facts of the case.

• The facts showing the court has jurisdiction.

• Relief claimed

• Any amount allowed to the defendant against the claim value of the subject matter,so far
as possible.

• Any amount allowed to the defendant against the claim value of the subject matter, so far
as possible.

• You must file a list of relevant document with the plaint.

The court may ,of its own,or on the application of any party, make order relating to the delivery and
answering of interrogatories(written question), the admission of documents and facts , the discovery,
inspection, production, impounding and return of documents.,the issue of summons to witness to attend to
give oral evidence or produce documents and affidavits. (sworn statements which have evidential status in
court).

DOCUMENTS:-Documents are important evidences in all cases but particularly in claims against doctors
and hospitals.It has been found that hospitals and nursing homes are sloppy in their record keeping
procedures and obstructive when it comes to handing them over to the patient and his/her advisor. It is
therefore important to know what documents to ask for from the hospital or the doctor as soon as your
advice is sought.At the first interview with the complainant you should find out if he or she has any of the
following documents

Out patients chit

Copies of consent forms for treatments

Observation charts (records of temperature,pulse etc.on a four hourly basis in graph form)

Intake and output chart

Nursing notes

Medication records
Laboratory data

Progress notes

Daily orders given

Notes regarding any special procedures carried out on the patient.

If the complainant has them, take them, and keep them safe. Never part with the originals. When filing
them at forum in support of the claim send photocopies only. If he/she does not have them write to the
doctor/ hospital and ask for them.

Expert witness:- It is usual in cases involving issues of medical negligence in U.K and the united states
for each side to call expert witness(usually doctors) to give their opinion about the alleged negligence.
This virtually unknown in India but activists should bear in mind that it is worth trying to find a reputable
doctor to give his opinoion if it is favourable to their case.

How to bring a criminal prosecution

The code of criminal procedure 1973 regulates criminal prosecution.

1) Almost all prosecutions are initiated by a first information report(FIR)) which must be given to
the police in writing or be written for you by them and read over to you. You should sign it and it
will be entered in a book by the police. You should be given a copy of it. An FIR can come from
anyone, not just the injured person. It does not constitute substantive evidence but may be used as
corroboration (supporting evidence) of its maker.

2) The police must then start an investigation if the alleged offence is cognizable.(Note:- Offences
under S.304Aand 325 IPC are cognizable offences. Offences under S.323 are not). A magistrate
must give an order to investigate in respect of non-cognizable offences. He/she can also order an
investigation in respect of a cognizable offence. If,for instance, the police does not investigate.
Also, an individual can make a statement to a magistrate (which may be under oath) if the police
are obstructive or he/she prefers to for whatever reason.

3) The doctor would then be brought before the court and in the area where the alleged offence has
been committed and may be bailed. Once the court has jurisdiction, the offender,may be tried
there or the magistrate may commit him or her trial at the court of sessions. The court obtains
jurisdiction to try the offence upon receiving a complaint of facts which constitutes an offence or
upon receiving a police report of such facts or upon receiving information from another person
or on his own knowledge that such an offence has been committed.

How to make a complaint to Medical council

All complaints must be addressed to the registrar of the medical council who will submit them to the
president. The complaint must be:-

Be made in writing

Signed by the complainant

State all facts of the case

State the complainants address

State whether the facts are within his own knowledge or , if not , the source of the information and
why he believes it to be true.

The doctors will be provided with a copy of the complaint and asked for his comments.

A hearing of the complaint will take place before the council. Both sides may be represented. Oral
and written evidence may be presented. The council will make a decision and may issue a letter of
warning to the doctor or remove his name from the register. All states have rules as to what
constitutes misconduct.

How to make a complaint to a hospital

Each large hospital has a grievance officer who is a doctor in administration preferably. You may
make a complaint to him or her and the doctor will then take the complaint to the committee within
the hospital. There are no independent features of this system and the public is unlikely to have much
confidence in it.Also, it is felt that doctor are very high handed in their treatment of patients in
general so are unlikely to give complaints the consideration they deserve.

How to present a writ petition to the supreme court

The right to move the Supreme Court to enforce a fundamental right which has been violated is
subject to bringing “appropriate proceedings”. So long as the purpose of the proceedings is
appropriate i.e to enforce fundamental rights, the form is not important and may even be by letter
addressed to the chief justice or to the court. Normally, however , the petitioner would file a writ
petition which is a document setting out the names and addresses of the parties , the alleged breach of
a fundamental right, the facts relied upon to prove it and the remedy required. No oral evidence is
taken in these proceedings and all evidence is presented in affidavit(sworn statement) form. There are
likely to be many hearings before the final hearing when judgment is pronounced but the proceedings
do not take nearly as long as in other civil courts.