This article has been written by Dhiman Roy, pursuing an Introductory Course for Legal Writing For Blogging, Paid Internships, Knowledge Management, Research and Editing Jobs from LawSikho.

Introduction

Doctors are among the most prestigious professions in the world. They work relentlessly to serve humanity. Doctors are overworked, and often stressed. The recent Coronavirus Pandemic is a perfect example of how the doctors worked day and night.

But not all is good. There are a few who bring a bad image to this noble profession. There is no denying that medical negligence has led to many deaths. More than often, we get to hear doctors leaving surgical gloves or cotton in the operated part of the body of the patient. And also many made this profession a dirty game to earn money, charging absorbent fees for hospital beds, keeping the dead body for extra days to add more to the hospital bill.

There is a remedy to all this, in Indian law, provided under the Consumer Protection Act 2019. The Act aims to protect the rights of the consumer with a speedy disposal mechanism.

Facts of the case

• On 4/9/1997, Prakash, the son of the complainant, went to OP for treatment.
• The doctor did prescribe him some medicine, but there was no record of them being found. The doctor didn’t record blood pressure, temperature, etc.
• Prakash died on 6/4/1997, a few hours before death. OP treated and prescribed him Betnesol, which is a life-saving drug, available in the form of injection.
• Between 4/9/1997 and 6/9/1997, Prakash underwent treatment at Sharadaben Hospital. 
• OP didn’t diagnose Prakash with malaria on 4/9/1997 as pathological tests were necessary to establish such.
• Post Moton Report (PTM), finds pulmonary oedema which, however, doesn’t have nexus with the actual cause of death.

Issues before the Appellate Court

• If the opposing party (OP) was negligent in treating the complainant’s son?
• To decide on an appropriate decree of remedy for the OP. 

Arguments made by the appellant Party

Arguments made by the appellant (OP) can be summarised in the following points:

1. OP stated that Prakash was treated only on 4/9/1997

2. OP’s major emphasis has been on the findings of the PMR., stating “Any external marks on the body portion” and its subsequent observation, “No external marks of injuries” In this sense, he referred to the complainant’s allegations that Prakash developed signs of acute pain and breathlessness, ultimately leading to his death after the OP put him on intravenous (IV) saline fluid feed and administered several injections through the IV nozzle. Learned Counsel also emphasised that if an IV feed was already given, the cannula would have left a scar on the deceased’s body that would have been detected by the PMR.

3. He also called attention to the fact that, according to the appellant, Prakash was well enough to work for the entire 6.9.1997.

4. Learned Counsel then argued that Prakash’s treatment at that hospital may have contributed to his sudden demise.

Arguments made by the opposing party

Arguments made by the complainant can be summarised in the following points:

1. Mrs Shah, the Learned Counsel for the appellant, on the other hand, emphasised that in the OP’s written address to the State Commission, he denied ever treating Prakash, but in the memorandum of appeal, he changed his position and admitted that he handled Prakash only on September 4, 1997, and not afterwards.
2. This change in the OP’s position, according to Mrs Shah, was sufficient to demonstrate his dubious intent and behaviour.
3. Mrs Shah indicated that the doctor who performed the PM test did not consider the cannula mark to be a physical injury on Prakash’s body since the PMR did not make any findings regarding physical injury on Prakash’s body. This was attributed to the fact that the test was taken at 10 a.m. the next day, long after 12 hours of Prakash’s death, and there was no accusation in the forwarding Police record, to alert the doctor to look out for an IV injection mark as an injury. 
4. Referring to the cash memo from Rakesh Medical and General Stores, which revealed the OP’s name as the prescribing doctor, who then willingly deposed that Ampicillin and Geramycin had no side effects and were completely healthy. The cash memo from Rakesh Medical and General Stores supported Prakash’s care and medication by the OP on September 6, 1997. The cash memo from Rakesh Medical and General Stores supported Prakash’s care and medication by the OP on September 6, 1997.

Concepts highlighted

The main concepts outlined in the case are medical incompetence and the inability to supply the patient with basic facts about the procedure. The court, on the other hand, ruled that the doctor must obtain the patient’s consent before treatment and supply him with sufficient treatment records. The doctor’s adequate details may probably contain the following points – (a) the type and method of the therapy, as well as its intent, advantages, and consequences; (b) any available alternatives; (c) an outline of the significant risks; and (d) adverse effects of refusing treatment.

Related cases 

The Court of Apex dealt thoroughly with the question of “valid consent” and, in that context, the “duty of disclosure” of a doctor to his patient in the case of Samira Kohli v. Dr. Prabha Manchanda, against the background of the decisions in the English case of Bolam v. Friern Hospital Management Committee, the case of Canterbury v. Spence in the United States, and a number of cases determined by the Supreme Court.In doing so, the Court acknowledged the ground-level realities of medical care quality, the affordability of necessary services, and citizens’ inability to bear the associated costs in India and the world’s developing countries.

Judgement 

• The Court heard both the parties before coming to any conclusion.
• The court cited that a doctor must obtain necessary consent before the commencement of any treatment. Consent should, however, be free and fair, and the patient should have the capacity to understand what he is consenting to, and must be given necessary information related to his conditions.
• .The ‘adequate information’ should be furnished by the doctor who treats the patient, to let the patient make a balanced judgment if he should consent to the treatment or not. This means that the doctor should disclose: 

1. nature and method of the therapy;
2. as well as its intent, advantages, and effects;
3. any available alternatives;
4. A summary of the significant threats and negative effects of avoiding the prescribed treatment.

• However, there is no need to clarify distant or speculative threats, which can frighten or discourage a patient and lead to the denial of necessary care consent. Additionally, there is no need to justify the distant or hypothetical consequences of refusing care, which might induce a patient to perform a fanciful or needless procedure. A balance should be struck between the need to disclose appropriate and adequate details but still avoiding the risk of discouraging a patient from committing to a necessary procedure or offering to receive inappropriate treatment. 
• The Court, while deciding the case, highlighted the socio-economic conditions in India. People belonging to the lower class are mostly illiterate or semi-literate and don’t know much about consent. They unquestionably trust the doctors’ decision. The blunt truth is that the principles of informed consent, or any sort of consent, and care preference have little significance or validity for the vast majority of citizens in India
• The OP is therefore explicitly guilty of severe failure in service (medical negligence) in failing to issue a prescription for his care of the deceased Prakash on 4.9.1997 and then failing to report his diagnosing Prakash’s ailment in the 6.9.1997 prescription(s).
• The Appellate Court, while deciding on the matter, pointed out some shortcomings of the State Commission. In exercising its powers under Section 13(4) of the Act, the State Commission might and should have found such an investigation of the doctor administering the PMR on its initiative.
• The death of the complainant’s son, Prakash, didn’t, however, occur on the sole negligence of the appellate,
• The Court, pronouncing its verdict, ordered the respondent to pay the petitioner Rs. 2.5 (two and a half) lakh in fee, plus interest at 9% per annum from the date of the case to the date of settlement. However, if the amount is not paid within 4 weeks from the death of the order, the interest rate will be charged at 12% per annum

Conclusion

In a nutshell, there are many instances of medical negligence, leading many innocents to lose their lives. The Consumer Protection Act, which includes medical negligence, provides a remedy for this under relevant sections of the law. But it is disheartening that there is hardly any awareness among consumers, especially people from the lower economic class.

The need of the hour is that the government come up with schemes that make people aware of the consumer laws of the land.

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