MEDICAL NEGLIGENCE AND THE LAW- AN ANALYSIS : Day 3

27 January, 2018

NECESSITY OF THE CONSUMER PROTECTION ACT, AND ITS APPLICATION TO THE MEDICAL PROFESSION

The necessity arose because the existing laws of the land which provide for action in cases of medical negligence under the Law of Tort and Indian Penal Code, have some well documented problems. These include the following:

  1. Delay, which, in medical negligence cases, tends to be greater;
  2. the cost of bringing an action, which is notoriously high in relation to the sums recovered in damages ;
  3. limited access to the courts ;
  4. success depends on proof of both negligence and causation (which can be particularly difficult in cases of medical negligence).

Hence necessity to provide for an alternate system which would be easily accessible, speed and cheap, gave birth to the Consumer Protection Act. This Act was made applicable to the doctors because there are no provisions in the Indian Medical Council Act, 1956;

  1. to entertain any complaint from the patient;
  2. to take action against the Medical Practitioner in case any negligence has been committed;
  3. to award any compensation, etc. in case the negligence is proved.

TIME LIMIT

The permissible time limit to file a complaint is 2 years from the date of injury. The time starts from the date of injury and not from the date of disability certificate. However, if the injury is continuous then the time starts from the date of last treatment given.

COMPENSATION

In a suit for damages on account of negligence, the onus lies on the patient to prove that the doctor was negligent, and the said negligence resulted in the injury which is complained to be compensated. Merely proving negligence on part of the person will not entitle him to claim compensation, proving injury or damage caused is must.

The damages for negligence are assessed on the principle that they are to be regarded as compensation for an injury sustained and not as punishment for wrong inflicted. The determination of the amount of compensation is basically a net balance of the loss and gain to the survivors of the dependents.

The purpose of an award of damages is to make good to the injured plaintiff, so far as money could do, the loss that he had suffered as a result of the loss done to him.

WHO IS LIABLE

  • Doctors with independent practice, unless rendering only free service
  • Private hospitals charging all patients
  • All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals
  • Doctors/hospitals paid by an insurance firm for treatment of a client, or an employer for that of an employee.

WHO IS NOT LIABLE

  • Doctors in hospitals which do not charge their patients
  • Hospitals offering free service to all patients. If any category is paying any fees for any service, that particular category will be liable under CPA.

Read Day 2 Here
Read Day 1 Here