Laying the Liability
The Apex Court specifically defined the term 'Professional' and the liabilities of a professional under Jacob Mathew v. State of Punjab. The court ruled that: a professional entering into a certain profession is deemed to have knowledge regarding that profession and it is assured impliedly by him that a reasonable amount of care shall be taken to profess his profession. The person can be held liable for negligence if he did not possess the required skills to profess or he failed to take the essential amount of care to profess the said profession.
It is interesting to note that a professional is not legally obligated to always deliver results as per the desires of the consumer availing their service but rather, they are required to maintain a certain standard of care while carrying out their services, which require specialised skills.
The Supreme Court decision in Indian Medical Association v VP Shantha brought the medical profession within the ambit of a 'service' as defined in the Consumer Protection Act, 1986. This transformed the relationship between patients and medical professionals as contractual. Patients who had sustained injuries in the course of treatment could now sue doctors in 'procedure-free' consumer protection courts for compensation.
The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients' charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act. The best consumer court lawyers in India can be consulted to file a case for medical negligence by a doctor.
Liability under tort law
Where the Consumer Protection Act ends, the law of torts takes over and protects the interests of patients. This applies even if medical professionals provide free services. The onus is on the patient to prove that the doctor was negligent and that the injury was a consequence of the doctor's negligence. Such cases of negligence may include transfusion of blood of incorrect blood groups, leaving a mop in the patient's abdomen after operating, unsuccessful sterilisation resulting in the birth of a child etc.
Liability under criminal law
A doctor can be punished under
of the Indian Penal Code (IPC) for causing death by a rash or negligent act, say in a case where the death of a patient is caused during operation by a doctor not qualified to operate. The standard of negligence required to be proved against a doctor in cases of criminal negligence (especially that under Section 304A of the IPC) should be so high that it can be described as 'gross negligence' or 'recklessness', not merely lack of necessary care. Criminal liability will not be attracted if the patient dies due to an error in judgment or accident.
A doctor can also be punished for causing hurt or grievous hurt under the IPC. However, Sections 87, 88, 89 and 92 of the IPC provide immunity from criminal prosecutions to doctors who act in good faith and for the patient's benefit.
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