India is widely known as a key and preferred, low-cost destination for medical tourism among other Asian developing and African countries. In recent years, it has also emerged as a key destination even for citizens of Western countries. As an example, in December 2011, Jack Jones, a Jehovah’s Witness whose faith barred him from having blood transfusions, made headlines for being the first US citizen to undergo a bloodless surgery in India.
This article provides a summary of the various medical malpractice laws in India with a focus on the Consumer Protection Act, 1986 (the “CPA”). Specifically, the article touches upon the various fora set up under the CPA, the tests applied by Indian courts when dealing with medical malpractice cases, and the relevant factors taken into consideration while awarding compensation, among other issues.
CONSUMER PROTECTION ACT
Briefly stated, a “consumer” who hires or avails of any “services” for consideration is entitled under the CPA to sue for any “deficiency in service” (not being services rendered free of cost or of a personal nature) and claim compensation. “Deficiency” is usually construed to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance of any service.
Until 1996, legal proceedings against doctors for malpractice were relatively few. However, the decision of the Supreme Court of India in Indian Medical Association v. V. P. Shantha (AIR 1996 SC 550) brought doctors and hospitals under the purview of the CPA. After this judgment, doctors and hospitals were allowed to be sued under the CPA for any ”deficiency in service.”
Filing actions under the CPA
The aggrieved person would have recourse to the specially created consumer disputes redressal fora established under the CPA to establish any malpractice of a doctor or hospital and claim compensation.
Depending on the value of the services and/or the compensation claimed, the aggrieved person would have to approach (i) the District Consumer Dispute Redressal Forum (pecuniary limit of up to INR 2,000,000 or approx. USD 40,000); (ii) the Consumer Disputes Redressal Commission of each Indian State or province (the “State Commission”) (which enjoys pecuniary limit above INR 2,000,000 but up to INR 10,000,000 i.e., between approx. USD 40,000 to 200,000); (iii) or the National Consumer Disputes Redressal Commission, New Delhi (the “National Commission”) (pecuniary limit of any amount above INR 10,000,000 or approx. USD 200,000).
In terms of hierarchy, the State Commission is empowered to hear appeals against orders of the District Forum and the National Commission hears appeals from the State Commission. Appeals from the National Commission reside with India’s apex court, the Supreme Court.
Principles of Negligence
To determine deficiency in service of the doctor or hospital, the same tests applied to determine the tort law principle of “negligence” are applicable under the CPA. Accordingly, as per the Supreme Court’s decision in Jacob Mathew v. State of Punjab [(2005) 6 SCC 422)] the aggrieved person has to prove that there existed (i) a duty of care (between patient and the doctor), (ii) there was breach of such duty and (iii) but for the said breach, no injury would have been suffered.
Duty of care and standard of care
In the case of Laxman Balkrishna Joshi v. Trimbak Bapu Godbole (AIR 1969 SC 128), the Supreme Court held that a doctor owes a patient certain duties such as a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment, among others. Accordingly, under Indian laws, a doctor is duty-bound to treat a patient with a reasonable degree of skill, care and knowledge.
On the issue of the standard of care to be adopted, it appears that to date, Indian courts have applied only the Bolam Test as laid down by English courts in Bolam v. Friern Hospital Management Committee  1 WLR 582]. Therefore, at present, neither a doctor nor any hospital may be held liable for medical malpractice if the doctor or institution acted in accordance with a practice accepted by a responsible body of medical practitioners skilled in that particular art.
Breach of duty and causation
Having established the duty and standard of care, the aggrieved patient next has to prove that there was a breach of the applicable duty and that the doctor had fallen below the accepted standard of care. The breach of the duty should then be linked to ‘causation’, i.e. a link should be established between the act of negligence and the injury suffered by the patient.
Indian courts have applied the ‘but for’ test in order to establish causation. In Geetu Sapra v. B. L. Kapoor Memorial Hospital [(2006) 3 CPJ 1], the ‘but-for’ test was applied to establish that if not for the defective equipment in the hospital, the patient would have not suffered the injury. In Samira Kohli v. Prabha Manchanda [(2008) 2 SCC 1] which deals with “informed consent,” the Supreme Court held that a doctor can be held negligent if proper consent is not taken and the failure to take consent is sufficient to determine causation.
Liability of Hospitals
In India, corporate hospitals (as opposed to government or village hospitals, which are unlikely to attract medical tourism) have been held liable by applying the tort law principle of ”vicarious liability” for any malpractice or ”deficiency in service” on the part of the doctors or nurses employed in such hospitals. Indian courts have ruled that a hospital cannot escape liability merely by arguing that it only provides infrastructural facilities and services of nursing and support staff to the consultant doctor and that the hospital cannot perform or recommend an operation on its own [Rekha Gupta v. Bombay Hospital Trust and Another (2003) 2 CPJ 160)].
In addition to holding hospitals liable for acts and omissions of doctors and nursing staffs, Indian courts have also held the hospital liable if it employs unqualified doctors or nurses [Professor P. N. Thakur v. Hans Charitable Hospital (2007) 3 CPJ 340)]. Further, hospitals have been held liable for ‘deficiency in service’ under the CPA for providing defective equipment [see Geetu Sapra case supra].
Compensation under the CPA
If it is determined that a doctor or hospital had been negligent, the aggrieved person is entitled to claim damages or compensation under the CPA. While determining the amount of compensation to be awarded under the CPA, Indian courts normally take into consideration the following key factors:
- Pain and suffering endured by the patient (including the duration and intensity) as a result of the negligence of the doctor;
- Loss of earnings or future earnings; and
- Expenses incurred for the medical treatment.
One of the highest compensation finally awarded in a medical malpractice case is INR 10,000,000 (approx. USD 200,000). This was awarded by the Supreme Court in the case of Nizam Institute of Medical Sciences v. Prashanth S. Dhananka [(2009) 6 SCC 1].
Recently, the National Commission in Kunal Saha v. Sukumar Mukherjee and Others [Original Petition No. 240 of 1999 decided on October 21, 2011], awarded a compensation of INR 13,465,750 (approx. USD 270,000) to the plaintiff, out of which the hospital was directed to pay a sum of INR 4,040,000 (approx. USD 80,800) and the remaining amount by the defendant doctors. The National Commission apportioned liability based on the degree of negligence of each doctor and the hospital. In this case, the hospital was found to be one of the main negligent parties.
The Kunal Saha case supra is an instance of a ‘non resident Indian’ (“NRI”) (in this case, a resident of the U.S.) suing in an Indian court seeking compensation for medical malpractice by doctors in India. It is understood from press reports that Kunal Saha would be appealing the aforesaid decision of the National Commission before the Supreme Court seeking enhanced compensation.
It is pertinent to note that traditionally, Indian courts have not awarded punitive or exemplary damages and have been fairly conservative in awarding compensation in medical malpractice cases under the CPA.
Theoretically, an aggrieved person can file [an action either under the CPA or under tort laws alleging negligence]. However, since bringing the medical profession under the CPA in 1996, Indian courts have frowned upon civil suits filed in regular courts under tort laws alleging negligence by doctors and have encouraged actions to be filed under the CPA.
EXECUTION PROCEEDINGS AND REMITTING COMPENSATION ABROAD
Under Indian law, upon award of final compensation (i.e., all appeal remedies have been exhausted), if the defendant has not voluntarily rendered compensation, the aggrieved party is entitled to commence proceedings to execute the award. In such proceedings, the court is empowered to seize and sell (by public auction) any property belonging to the defendant to ensure that the aggrieved person is paid due compensation. Courts are also empowered to imprison the defendant for any non-payment of the award.
In cases involving foreigners, since the proceedings are in India, a concern relates to actual remittance and receipt of the awarded compensation amount by the foreigners abroad. In this regard, it is pertinent to note that India’s foreign exchange laws have been substantially liberalised over the years and it should now be possible for bankers to rely on court orders to allow the defendants to remit the compensation amount to the aggrieved person abroad.
In case this is not possible, a prior approval of the Reserve Bank of India (RBI) may be required for the remittance abroad. Usually, obtaining such prior approval to permit the remittance by providing a certified court order should not be unduly problematic.
CRIMINAL NEGLIGENCE OF DOCTORS
In India, in addition to an action under the CPA, a doctor can also be liable under penal laws for criminal negligence if such doctor is shown to have been rash and negligent, resulting in the death of the patient [Section 304A of the Indian Penal Code]. A person convicted under Section 304A may be subject either to simple or rigorous imprisonment for a term of up to two years, or with fine, or with both.
The Supreme Court has in the cases of Suresh Gupta v. Government of NCT of Delhi [(2004) 6 SCC 422] and the Jacob Mathew case supra clarified the position regarding criminal negligence of doctors and held that an “extremely reckless act or omission by the doctor” would have to occur for the doctor to be held criminally negligent. In other words, the degree of negligence should be of a very high degree for a doctor to be held criminally negligent.
Insofar as criminal liability of hospitals is concerned, the present view appears to be that a hospital cannot be held criminally liable for negligence even though the doctor can be held responsible. In Indraprastha Medical Corp Ltd. V. State NCT of Delhi [(2011) 1 Crimes 124], the Delhi High Court observed that the offence of medical criminal negligence cannot be fastened on a hospital since the hospital can neither treat nor operate a patient on its own. Further, the Supreme Court, while quashing criminal cases against doctors, seems to have also held that the hospital cannot be held criminally liable [Malay Kumar Ganguly v. Sukumar Mukherjee [(AIR 2010 SC 1162)].
Since the various specialised fora established under the CPA are in the general nature of quasi-judicial bodies, aggrieved persons can personally argue their cases without the involvement of lawyers. Further, the court filing fees for an action in a consumer forum is rather minimal (may not exceed USD 150). This means that costs of pursuing an action under the CPA can be fairly minimal.
Normal court procedure rules typically also do not apply to CPA proceedings. Considering that the usual time period to adjudicate cases in regular Indian courts can extend to 3 – 5 years, actions under the CPA are known to conclude within a year.
Hence, the CPA has been a fairly successful law in dealing with cases relating to ‘deficiency in service’ including medical malpractice cases. The only concern is that Indian courts have been reluctant to award punitive or exemplary damages. The approach that Indian courts may adopt on the concept of loss of future earnings especially while dealing with cases involving foreigners (where the earnings may be much more compared to Indians in similar work profiles) is also an area of concern.
Suhas Srinivasiah is a Partner and Arjun Krishnamoorthy is an Associate at the Bangalore office of Kochhar & Co., a leading law firm in India. They can be reached at email@example.com and firstname.lastname@example.org.
By Suhas Srinivasiah and Arjun Krishnamoorthy
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