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| Tackling Medical Negligence | | |
Ranbir Singh Pathania
Centuries back, plague broke out in some villages of Rajasthan during the famous Rana Sanga rules and the local ‘Hakeems’ were reluctant to treat the infested people. Rana, known world-over for his rock n’roll bravado and principles is said to have had punished the erring ‘Hakims’ on spot and further personally led a contingent of royal ‘Hakims’ to the infested villages and himself administered ‘aushadhi’ to the patients. From the times of Ramayana to that of Mughal Period, instances of penalizing negligent ‘Hakims’ and ‘Vaids’ could be easily found.
But in the history of independent India, the notion of suing negligent doctors has been conceptualized only after the passing of a monumental judgement by the Supreme Court in I.M.A Vs. V. P. Shantha and others. Earlier the courts throughout the country refused to entertain petitions against the negligent doctors on the very plea that a contract between a practitioner and patient was that of contract of personal services and thus it did not bring the medical services within the sting and scope of Section 2 (1) (o) of Consumers Protection Act. Also, the aggrieved parties were well within their right to approach the Indian Medical Association and State Medical Associations with a view to proceeding against medical practitioners prima facie guilty of misconduct. Nonetheless, the arrangement suffered from an inherent bi-pronged handicap-Firstly, no relief could be made available to a person who has undergone much of an uncalled for trauma and travails on account of negligent acts of the doctors and, secondly, members of the Indian Medical Association and the State Medical Associations usually have a soft corner for the the medical practitioners.
The initial mindset of the society and law-makers and law-interpreters was also that professional negligence should not be addressed to under the Law of Torts as professions usually operate in spheres where success could not be achieved in each and every case. But, till then and now, much water has flowed up and down, and with the increasing graph of judicial activism and enlarging horizon of law and legal jurisprudence, professions like that of engineers, architects, lawyers, etc, came to be brought under the catch-net of Law of Torts. And the basic principle underlying the brainwave was that professionals should be made to display a minimum degree of reasonable care, competence and diligence while performing their professional jobs.
It is in the same vein that the Supreme Court has traversed and traveled across all that while ruling that contract between a practitioner and a patient is a ‘ contract for services’ and medical practitioners rendering services to the patients by way of consultation, diagnosis and treatment, both medicinal surgical, fall within the scope of term ‘services’ as stipulated by Section 2 (1) (o) of Consumers Protection Act. This clears the decks for suing negligent and wayward doctors under the tort of negligence. At the same, it should also be not inferred that Supreme Court has put the medicos on a hot seat and demanded hyper levels of output from them. Although, efficiency and precision are the very hallmark of every profession, the institutionale premiere has laid down a test of optimum level of ‘reasonable care and diligence’ to be necessaringly followed by the medical practitioners in discharge of their professional duties.
It is however said that the Supreme Court has not touched Government hospitals and nursing homes imparting free-of-charge services- a narrow and partisan construction of law in an era where we proudly talk of accountability, transparency, work culture, e-governance and right to information. The Court has opined that since patients are not paying any ‘consideration’ in State-run hospitals and dispensaries, the medicos offering services therein could not be sued for negligence. How could we say that service rendered in the State-run hospitals are rendered free of charge when salaries of the government doctors are satisfied out of the Consolidated Fund of India, an account purely raised from tax-payers’ money ? Isn’t it that a sweeping majority of ‘India Real’ going to State –run hospitals, P.H.C.s and dispensaries has been placed on a lower pedestal as compared to affluent ones going to private-owned hospitals and nursing homes? Hasn’t it placed the doctors practicing in government-owned medical institutions in the touch-me-not citadel with a sense of least care for the patients and nil fear of limb of the law? Does not the ruling look in the ace of egalitarian, socialistic fabric of our country?
Having an optimistic mind and positive thinking, I never keep my kind fossilized and hope that with the winds of change blowing steadfastly on the legal outfield of our country, the hiccup would be overcome in the times to come. And with full courage and spirit, I subscribe to the view that essential services and supplies like electricity and water supply public distribution system and national security be brought within the scope of the term ‘services’ and citizens be vested with fullest rights to sue ‘deficient’ or negligent public servants. As the maximum runs-Let the justice prevails even it the world perishes.
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