The legal mechanisms available for safety of patients in the hospitals are discussed below:
1. MCI Regulations:
MCI Regulations 2002 govern the ethical and professional conduct of the medical professionals. The regulations have provisions about confidentiality of information and dignity and privacy of patients.
ADVERTISEMENTS:
They also forbid the doctor from indulging in any illicit affair with his patient or any illegal activities.
The regulations expressly disallow the doctor any act of mercy killing or euthanasia. They do, in a general sense, expect the doctor to ensure the safety of the patient under his care but they do not have any specific provisions about patients’ safety.
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Even when a doctor is in violation of medical ethics or is accused of professional misconduct, the council can, at best, suspend his name from the register of names. The MCI or State Medical Council has no powers to award any compensation in a case of medical negligence.
2. The Consumer Protection Act, 1986:
The Consumer Protection Act (CPA) is applicable to professional services provided by medical professionals/Hospitals/Nursing homes.
ADVERTISEMENTS:
Under Section 6 of the Act, patients (as consumers of medical services) have certain rights—the first right being the right to be protected against the marketing of goods and services which are hazardous to life and property. Others being— the right to be informed, right to be assured, right to be heard, right to seek redressal and right to consumer education.
In case of any violation of these rights or deficiency in service, the patient can approach the appropriate Consumer Disputes Redressal Agency and seek redressal/compensation.
It may be noted, however, that CPA covers only the civil cases redress able by financial compensation. Consumer courts are not empowered to award imprisonment and criminal cases do not come under the purview of Consumer Protection Act.
3. The Law of Tort:
Law of Tort applies where the care provider (doctor/hospital) has violated certain legal right of the patient.
ADVERTISEMENTS:
If there is a violation of a legal right, even if there is no damage or harm caused, the violation is legally actionable on the principle that no violation of legal rights should go unrepressed (injuria sine damno).
For liability of the doctor to be established under tort of negligence, the conduct of the doctor has to be proved to be below the standards expected of an average doctor. When the circumstances demand care and the doctor fails to perform his duty to care, he is liable for the tort of negligence.
On the other hand, if the doctor had taken such reasonable care as expected of him and no legal right of the patient was violated, he would not be liable to the tort of negligence even if the patient had suffered damages (damnum sine injuria).
A patient who feels aggrieved by professional negligence on the part of his treating physician can seek redressal under the Law of Tort in a Consumer court or a Civil Court.
4. The Indian Contract Act:
Under the Indian Contract Act, a doctor provides medical services to a patient in pursuance of an (unwritten) agreement to provide (in exchange for a certain fee) a reasonable level of services to treat the patient’s illness.
If the doctor fails to exercise a reasonable level of care and skill and the patient suffers some damages which are proved to be due to some deficiency in service provided by the doctor, then the doctor is liable for medical negligence.
The salient aspects are that:-
a. The patient must have suffered some damages which are measurable and can be compensated and
b. The damages must be directly attributable to a proved deficiency in service provided by the doctor.
If there are no damages suffered by the patient, the doctor has no liability even if his negligence is proved. Similarly if no deficiency or negligence is proved on the part of the doctor, the doctor is not liable even if the patient has suffered damages.
The onus of providing deficiency in service rests with the patient (the plaintiff) except in case of Res Ipsa Loquitur where the facts are too obvious and the onus of disproving deficiency in service shifts to the doctor.
5. Provisions of Indian Penal Code (IPC):
While Tort law and the Contract Act involve civil liability, the provisions of Indian Penal Code involve criminal liability of the accused, if proved guilty. Some important provisions of the IPC that are applicable to medical profession are outlined below:
i. IPC Section 186: Obstructing a Public Servant in Discharge of Public Functions:
Whoever voluntarily obstructs any public servant in the discharge of his public functions shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both. For example:
i. Obstructing a public servant executing a warrant of arrest duly signed by the magistrate
ii. Obstructing a police official from interrogating a Medicolegal case who is, otherwise, from medical point of view, fit for interrogation.
ii. IPC Section 269: Negligent act likely to Spread Infection of Disease Dangerous to life, unlawfully or negligently:
“Whoever negligently or unlawfully does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”
This section has been framed with the intension of preventing people from committing or omitting acts which are likely to spread infectious diseases.
Throwing away the soiled/blood socked bandages/plaster casts or used syringes, needles, anatomical body parts, placenta, etc. on the municipal dump by the hospital staff would amount to be an offence under the Act as it can spread infections in the neighborhood for which the hospital would be liable to punishment under the Act.
iii. IPC Section 270: Malignant act likely to Spread Infection of Disease Dangerous to Life:
Whoever malignantly does any act which is, and which he knows and has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The world “malignant”, here denotes an act caused by malice and not just by negligence or carelessness (c.f. Section 269) and, therefore, is an aggravated form of offence. For example: A nurse while administering medication to patients in the ward gives an injection to a patient using the same (unsterile) syringe that she used on the previous patient infected with HIV.
If it is proved that the nurse used the unsterile/infected syringe on the second patient maliciously, with the full knowledge and intention of causing infection of the deadly virus to the patient, she would be held guilty of an offence under Section 170.
iv. IPC Section 271: Disobedience of Quarantine Rules:
Whoever knowingly disobeys any rule made and promulgated by the government for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, or for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
The offence is punishable regardless of the motive or the fact whether it caused any spread of infection or not.
v. IPC Section 272: Adulteration of Food or Drink Intended for Sale:
Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with a fine which may extend to one thousand rupees, or with both.
In States of Uttar Pradesh and West Bengal the provisions have been made more stringent. The Act has been amended to extend the prison term to life imprisonment under this Section. The offence is cognizable, non-bailable and triable by Court of Session.
Note: Mere adulteration with harmless ingredients (such as mixing water with milk or vegetable oil with ghee) is not punishable under this act. It has to be adulteration with ingredients noxious and injurious to health.
vi. IPC Section 273: Sale of Noxious Food or Drink:
Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
In States of Uttar Pradesh and West Bengal the provisions have been made more stringent.
The Act has been amended to extend the prison term to life imprisonment under this Section. The offence has been made cognizable, non-bailable and triable by Court of Session.
vii. IPC Section 274: Adulteration of Drugs:
Whoever adulterates any drug or medical preparation in such a manner as to lessen the efficacy or change the operation of such drug or medical preparation, or to make it noxious, intending that it shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medical purpose, as if it had not undergone such adulteration, shall be punished with imprisonment of either description for a term up to six months, and/or fine which may extend to rupees one thousand.
In states of Uttar Pradesh and West Bengal the provisions have been made more stringent.
The Act has been amended to extend the prison term to life imprisonment under this Section. The offence has been made cognizable, non-bailable and triable by Court of Session.
viii. IPC Section 275: Sale of Adulterated Drugs:
Whoever, knowing any drug or medical preparation to have been adulterated in such a manner as to lessen its efficacy, to change its operation, or to render it noxious, sells the same, or offers or exposes it for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or causes it to be used for medicinal purposes by any person not knowing of the adulteration, shall be punished with imprisonment of either description for a term up to six months and/or fine up to one thousand rupees.
In states of Uttar Pradesh and West Bengal the provisions have been made more stringent. The Act has been amended to extend the prison term to life imprisonment under this section. The offence has been made cognizable, non-bailable and triable by the Court of Session.
ix. IPC Section 276: Sale of Drug as Different Drug or Preparation:
Whoever, knowingly sells or offers or exposes for sale, or issue from a dispensary for medicinal purposes, any drug or medical preparation, as a different drug or medical preparation, shall be punished with imprisonment of either description for a term up to six months and/or fine up to one thousand rupees.
In states of Uttar Pradesh and West Bengal the provisions have been made more stringent. The Act has been amended to extend the prison term to life imprisonment under this section. The offence has been made cognizable, non-bailable and triable by Court of Session.
x. IPC Section 277: Fouling Water of Public Spring or Reservoir:
Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or a fine which may extend to five hundred rupees, or with both.
For Example:
Bathing or discharging sewage water in a water tank meant for drinking water, would foul the water and hence would be an offence under this section.
xi. IPC Section 278: Making Atmosphere Noxious to Health:
“Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighborhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees.”
The offence of disposing of wastes on land contrary to the control of pollution Act, 1974, applies not only to the final disposal but any disposal (even temporary) on land.
This provision is important especially in case of hospitals/nursing homes which generate so much of biomedical/infectious waste every day. It must be kept in mind that the hospital cannot be absolved of its liability of unsafe disposal of waste even if it was done by a contractor with whom it had a contract for waste disposal.
xii. IPC Section 284: Negligent Conduct with respect to Poisonous Substances:
Whoever does, with any poisonous substance, any act in a manner so rash and negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against any probable danger to human life from such poisonous substance, shall be punished with imprisonment of either description for a term up to six months and/or fine up to one thousand rupees.
Under the second part of this Section negligent omission is enough to prove the offence. It is not necessary that the “omission” should lead to any disastrous consequences.
xiii. IPC Section 285: Negligent Conduct with respect to Fire or Combustible Matter:
Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with a fine which may extend to one thousand rupees, or with both.
xiv. IPC Section 286: Negligent Conduct with respect to Explosive Substances:
Whoever does, with any explosive substance, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance, shall be punished with imprisonment of either description for a term which may extend to six months, or a fine which may extend to one thousand rupees, or with both.
This Section may be important form the point of view of safe storage of diesel, gases and other explosive chemicals used in the hospitals.
xv. IPC Section 287: Negligent Conduct with respect to Machinery:
Whoever does, with any machinery, any act so rashly or negligently as to endanger human life or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or in his care as is sufficient to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term which may extend to six months, or a fine which may extend to one thousand rupees, or with both.
xvi. IPC Section 288: Negligent Conduct with respect to Pulling Down or Repairing Buildings:
Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any danger to human life from the fall of that building, or of any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or a fine which may extend to one thousand rupees, or with both.
Note: To come under the purview of this act, the injury complained of must be the direct result of negligence in the act of pulling down or repairing the buildings.
xvii. IPC Section 304 A: Causing Death by Negligence:
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Cases falling under the purview of this section are those where there is no intention to cause death and no knowledge that the act done, in all probability, would cause death.
For example:
A nurse, administered acid to a patient, by mistake, in place of another medicine and caused death of the patient. She had no intention of causing death of the patient, nor did she have the knowledge that the medicine being administered was acid and would cause death of the patient.
However, she was guilty of the offence under Section 304 A because she neglected her duty of due care and administered the medicine (acid) to the patient without checking and confirming the correctness of medicine being given and caused the death of the patient.
xviii. IPC Section 312: Causing Miscarriage:
Whoever, voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
This Section covers the cases where miscarriage has been done with the consent of the pregnant woman and both the pregnant women as well as the person causing the miscarriage are guilty and liable to punishment.
It is important in view of the MTP Act (34 of 1971) which holds a miscarriage or termination of pregnancy illegal unless performed by a registered medical practitioner, in a case where its continuance would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health or where there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Termination of pregnancy which has been caused by rape or contraceptive failure (in case of married woman) is not against the law presuming that such pregnancy would cause grave injury to the mental health of the woman.
xix. IPC Section 313: Causing Miscarriage without Woman’s Consent:
Whoever commits the offence defined under Section 312, without the consent of the woman, whether the woman was quick with the child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Since the miscarriage here, is not with the consent of the pregnant woman, she is not guilty of any offence.
Under this Section the person procuring the abortion and the person causing the abortion are both guilty and liable to be punished.
xx. IPC Section 314:
Death Caused by Act done with Intent to Cause Miscarriage Whoever, with intent to cause miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if the act is done without the consent of the woman, shall be punished either with imprisonment for life or with the punishment above mentioned.
The important operative element is that the death should have been caused as a complication of the act of miscarriage and is of special significance where the abortions are attempted by untrained/unqualified persons.
xxi. IPC Section 315: Act done with Intent to Prevent Child Being Born Alive or to cause it to Die after Birth:
Whoever, before the birth of any child, does any act with the intention of thereby preventing the child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall if such act be not in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
This Section makes punishable any act aimed at causing destruction of child’s life before or after birth unless it is in good faith for saving the life of the mother.
xxii. IPC Section 318: Concealment of Birth by Secret Disposal of Dead Body:
Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child dies before or after or during its birth, intentionally conceals or endeavors to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 318 is aimed at preventing infanticide by making the concealment of birth (by secretly disposing off the body of the infant), a punishable offence. It highlights the importance of reporting of births and deaths by hospitals/nursing homes in strict compliance with the Births and Deaths registration Act.
xxiii. IPC Section 336: Act Endangering Life or Personal Safety of Others:
“Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others shall be punished with imprisonment of either description for a term which may extend to three months, or with a fine which may extend to two hundred rupees, or with both”.
xxiv. IPC Section 337: Causing Hurt by Act Endangering Life or Personal Safety of Others:
“Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with a fine which may extend to five hundred rupees, or with both.”
This Section differs from Section 304 A in that, it deals with cases where only hurt has been caused whereas in 304 A the act has caused death of the victim. Rash and negligent nature of the act is common to both.
In a cataract surgery camp a large number of cases were operated. After the surgery some of them developed infection which caused loss of partial vision. It was found that aseptic precautions were not taken by the surgeons while operating and that caused wide spread infection and partial loss of vision.
The operating surgeons, hence, are guilty of offence under this Section and liable to punishment.
xxv. IPC Section 338: Causing Grievous Hurt by Act Endangering Life or Personal Safety of Others:
“Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”
In the above example if the loss of vision in the eyes had been complete, it would be judged as grievous hurt and the operating surgeons would be held guilty of offence under Section 338 rather than 337.
Some of the types of hurts that may be called grievous hurts are emasculation, permanent privation of the sight of either eye, permanent privation of the hearing of either ear, privation/permanent impairing of the powers of any member or joint, permanent disfigurement of head or face, fracture or dislocation of a bone or tooth or any hurt which endangers life or which causes the sufferer to be in severe bodily pain, or unable to follow his ordinary pursuits for 20 days or more.
xxvi. IPC Section 376 D: Intercourse by any Member of the Management or Staff of a Hospital with Any Woman in that Hospital:
Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
For the purpose of this section, “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation (Explanation 3 of sub section 2 of Section 376).