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Cross Practice: The Court has held that when the doctor was registered
only to practice one particular branch of medicine, He was under a statutory
duty not to enter other systems of medicine.
Standard of Education: The courts have by and large left it to the expert
bodies such as Medical Councils to decide as to which qualifications should be
recognized and which should not be.
Unlicensed Practitioners: It is of paramount importance that quackery
should be suppressed, as poor people who often cannot afford the fees of
qualified doctors are the ones most affected by this. Hence, it is the duty of
the state to have stringent laws governing the licensing of practitioners and to
take necessary steps to rein in the unlicensed practitioners.
Quacks:
(i) All District Magistrates and the Chief Medical Officers of the State shall
be directed to
identify, within a time limit to be fixed by the Secretary, all
unqualified/unregistered medical practitioners and to initiate legal actions
against these persons immediately.
(ii) Direct all District Magistrates and the Chief Medical Officers to monitor
all legal proceedings initiated against such persons;
(iii) The Secretary, Health and Family Welfare Department shall give due
publicity of the
names of such unqualified/unregistered medical practitioners so that people do
not
approach such persons for medical treatment.
(iv) The Secretary, Health and Family Welfare Department shall monitor the
actions taken by all District Magistrates and all Chief Medical Officers of the
State and issue necessary directions from time to time to these officers so that
such unauthorized persons cannot pursue their medical profession in the State.
Certificate for medical practice: merely because a person is registered under
any other State medical law does not entitle him to practice in state XXYY
unless he is registered in the State (i.e. his qualification is recognized in
state XXYY) or under the Central law (i.e. his qualification is recognized by
the Central Council).
Medical Negligence
Negligence can be described as failure to take due care, as a result of which
injury ensues.
Medical malpractice, however, is not merely the negligence on the part of the
care giver; it is a conscious decision of the care giver to offer and/ or force
a product, procedure or investigation upon a patient for monetary gain either
personally or for the institution.
There are three essential components of negligence:
The existence of a duty to take care, which is owed by the doctor to the
complainant;
The failure to attain that standard of care, prescribed by the law, thereby
committing the breach of such duty;
Damage, which is both causally connected with such breach and recognized by
the law, has been suffered by the complainant.
Criminal Negligence: No criminal liability should be attached where a
patient’s death results from error of judgment or an accident. The degree of
medical negligence must be such that it shows complete apathy for the life and
safety of the patient as to amount to a crime against the state.
The Supreme Court also laid down guidelines for prosecuting doctors:
1. A private criminal complaint should not be entertained unless the complainant
has produced prima facie evidence in the court in the form of a credible opinion
given by another competent doctor to support the charge of rashness or
negligence.
2. The investigating officer, before proceeding against a doctor, should obtain
an independent medical opinion preferably from a doctor in government service
qualified in that branch of medical practice.
3. The accused doctor should not be arrested in a routine manner unless his
arrest is necessary for furthering investigation or for collecting evidence or
unless the investigating officer feels satisfied that the doctor will abscond.
Jurisdiction of Consumer Courts: The Supreme Court has drawn the
following conclusions:
i) Services rendered to patient by a medical practitioner (except where the
service is free of charge to every patient or under a contract of personal
service), by way of consultation, diagnosis and treatment, both medical and
surgical, would fall within the ambit of services as defined in Section 2(1)(o)
of the Act
ii) The fact that medical practitioners belong to the medical profession and are
subject to the disciplinary control of the Medical Council of India and /or
State medical Councils would not exclude the services rendered by them from the
ambit of the Act.
iii) Services rendered by a medical officer to his employer under the contract
of employment is not ‘service’ under S. 2(1)(o) for purposes of the Act
iv) Services rendered at private or a Government hospitals, nursing homes,
health centres and dispensaries for a fee are ‘services’ under the Act while
services rendered free of charge are Healthcare Case exempted. Payment of a
token amount for purposes of registration will not alter the nature of services
provided for free. Services rendered at Government or a private hospitals,
nursing homes, health centres and dispensaries where services are rendered on
payment of charges to those who can afford and free to those who cannot are also
‘services’ for the purposes of the Act. Hence in such cases the person who are
rendered free services are ‘beneficiaries’ under S. 2(1) (d) thereby ‘consumer’
under the Act.
v) Services rendered free of charge by a medical practitioner attached to a
hospital/ nursing home or where he is employed in a hospital/ nursing home that
provides free medical facilities, are not ‘services’ under the Act.
vi) Where an insurance company pays, under the insurance policy, for
consultation, diagnosis and medical treatment of the insurer then such an
insurer is a consumer under S. 291)(d) and services rendered either by the
hospital or the medical practitioner is ‘service’ under S. 2(1)(o). Similarly
where an employer bears the expenses of medical treatment of its employee, the
employee is a consumer under the Act.
Civil Negligence and Deficiency in Medical Service:
The Supreme Court held that doctors have the discretion to choose the course of
treatment to be given and such discretion is relatively large in an emergency
case. Nevertheless, the doctor owes his patients a duty of care in deciding
whether to undertake the case, the line of treatment to be adopted and a duty in
administering that treatment. |
