Practice of medicine is too complex and vast to be amenable to easy non-professional regulation or judicial scrutiny. An extensively trained, qualified and licensed medical practitioner needs free hand to provide best of services commensurate with the level of his training. For this a medical professional needs protection against frivolous, excessive, harassing litigations and ill-investigated judicial decisions in medical negligence cases. The Honorable Supreme Court has considered this matter in several cases. However the conflicting decisions have resulted into failure to evolve a clear cut mechanism in the matter.

Consider in this context the following judgment.

Supreme Court of India
Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009

IN THE SUPREME COURT OF INDIA

Extracts: para as in the judgment

28. Before discussing the facts of the case, we would like to state the law regarding Medical Negligence in India.

29. Cases, both civil and criminal as well as in Consumer Fora, are often filed against medical practitioners and hospitals, complaining of medical negligence against doctors/hospitals/nursing homes and hence the latter naturally would like to know about their liability.

30. The general principles on this subject have been lucidly and elaborately
explained in the three Judge Bench decision of this Court in Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of those general principles to specific cases.

31. For instance, in para 41 of the aforesaid decision it was observed :

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires."

32. Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level of care.

33. To give another example, in paragraph 12 to 16 of Jacob Mathew's case (Supra), it has been stated that simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only damages can be imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from damages which may be imposed on him in a civil suit or by the Consumer Fora. However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts.

34. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge concerned who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood.

35. Before dealing with these principles two things have to be kept in mind : (1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.

Exemption provided to Judicial officers
Essentially on the basis of Good Faith a judicial officer is provided immunity from liability for his/her judicial decisions.

On the same basis (good faith) IPC Sections 88 and 92 provide exemptions from liability to a medical professional for his professional acts and decisions.

However, the immunity or exemption is not blanket but is qualified in both the cases to prevent its misuse.

Besides, the exemption provided to the judicial officers is against initiation of prosecution while in case of medical professional it is after the complaint is filed.

IPC Sec 52. "Good faith".—Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.

Section 3(22) of the General Clauses Act defines 'good faith' as "a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not". 'Good faith' would mean anything done honestly, whether done negligently or not.

Section 1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and of officers executing warrants and orders.
No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.

Provided that he at the time. in good faith, believed himself to have jurisdiction to do or order the net complained of..

The Judges (Protection) Act, 1985 is the consolidating act of the previously formed Judicial Officers' Protection Act, 1850. The earlier act was formed in the pre-independence era by the British and gave protection to judges relating to civil suits only. On the contrary, the later act gave immunity in both civil and criminal cases. The jurisprudence relating to immunity in torts has comparatively been different from that of the common law of England. The courts in India have been prudential enough and only give immunity in cases where no liability existed on part of the judge.

Section 3(1) of the Act states, "No court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function."

Immunity to judicial and quasi-judicial authorities is important to save such authorities from getting alleged by people against whom a judicial pronouncement has been made. Lord Coke can be credited for inventing this doctrine which has been of immense contribution to the judiciary. However, absolute immunity has not been granted to prevent abuse of such benefitting law. With the evolution of time, the laws have been put to scrutiny and been more refined than previously.

In India, the Judges (Protection) Act, 1985 provides immunities to authorities that are discharging judicial functions. It covers both judicial and quasi-judicial authorities. This is important since there are many other authorities such as commissions, tribunals, boards, etc. which are entrusted under different statutes to discharge judicial functions.

In the Indian context, the benefit of immunity is given with much prudence and care. The judges, who are acting with mala fide intentions or negligently or beyond their jurisdiction, are not given this blanket protection, rather they are held liable for their actions.

To conclude, it can be inferred that immunity to authorities performing judicial functions is a good step that can help them to freely give a just judgment without any fear. However, it must also be remembered that such a judgment should be made with bona fide intentions and in accordance with the provisions of the law.

Exclusion for Medical Profession
Hospital exclusion clauses limiting liability for medical malpractice resulting in death or physical or psychological injury: What is the effect of the Consumer Protection Act?

Abstract
In 2002 the Supreme Court of Appeal ruling in Afrox Healthcare Beperk v. Strydom held that the common law allows hospitals to exclude liability for medical malpractice resulting in death or physical or psychological injury – except in the case of gross negligence. The effect of this judgment has now been superseded by the provisions of the Consumer Protection Act of 2008, which came into effect in March 2011.

The Act states that unfair, unreasonable or unjust contract terms are prohibited and that certain terms and conditions have to be drawn to consumers' attention and cannot be buried in the small print. It is argued that as a result of the Act, exclusion clauses that unfairly, unreasonably or unjustly protect hospitals from liability for death or bodily or psychological injury caused by the fault of their staff, may be declared by the courts to be invalid and not binding on consumers. They may also be regarded as unconstitutional.

While elaborating on medical negligence, the apex court observed as follows (abridged): Negligence is a 'tort'. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as 'implied undertaking' by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. In the case of Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118, McNair, J. summed up the law as the following:

"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill: It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he confirms with one of these proper standards, then he is not negligent."

Medical Negligence and Liability of Doctor in India

IPC 88. Act not intended to cause death, done by consent in good faith for person's benefit.

• Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely cause to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm.
  
  The statutory provision thus provides a medical man exemption from the liability if the medical intervention is done with due consent and for the benefit of the person, provided of course, that there is no evidence to doubt or question the beneficial intent. In case of malafide intent, or act beyond the scope of his expertise (jurisdiction), benefit of good faith will not be available to a medical person, as is not available to the judicial officer. In other words the act of a medical person has to be lawful.

Intervention to be lawful

1. No intent to cause death.
2. Beneficial intent
3. Good faith
4. Consent

The act of care provider should not be with specific intent to cause death even though the care provider has the knowledge that the act may, in certain percent of cases, result into death. The risk of death in surgical operation etc is well known. It may also be seen that intent to cause grievous hurt (e.g. removal of a body part) is not an ingredient of the section. (For clarification see Sec.87 where intentionally causing hurt is permissible on valid consent provided the harm is less then a grievous hurt).

The other three ingredients viz. benefit, good faith and consent are legal doctrines and have to be understood in that sense and complied with. All three are essential.

Benefit here means bodily benefit i.e. physical, physiological and functional.

Explanation under Section 92 excludes pecuniary benefit (e.g. money to kidney donor) from the meaning of benefit under Ss.88, 89 and 92.

It may be seen that acts that do not benefit the patient, in other words non-therapeutic acts, are not protected under this section.

Non-Therapeutic acts: 1. bleeding a patient for blood donation, 2. non-therapeutic vasectomy and tubectomy, 3. removing a kidney from healthy donor are some examples of acts that provide not physical, physiological or functional benefit to the person himself. To be lawful the act to be protected should be not intended to cause grievous hurt and be covered under Sec. 87 or should be protected by special laws e.g. Transplantation Act, MTP Act etc.

Good faith: Is defined in Sec.52 IPC.
IPC 52 "Good Faith" - Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. (Emphasis added)

It will be seen that nothing is believed to have been done in good faith that is done without due competence, care and caution. These three are legal ingredients essential to establish good faith; Good intention is not good faith. However, competence, care and caution, as they stand, are intangible postulates that have to be made tangible to be amenable to objective assessment.

Competence is defined as possession of adequate knowledge and skill about the act done.

It is on the basis of knowledge of the subject and possession of basic skill, assessed by competent medical examiners, that he or she possess requisite knowledge and skill that the degree or diploma is awarded.

A doctor has to register his MBBS degree with the Medical Council to get a license that certifies that the doctor possesses basic medical and surgical skills to practice medicine.

For specialization and super specialization, an MBBS doctor, possessing basic skills, has to undergo training as specified by the Medical Council to acquire knowledge and skill commensurate with the degree or diploma to be awarded. The specialist or the super specialist diploma, MD, MS, MCh etc, has then to be registered with the Medical Council to be licensed to practice in the field of their certified expertise.

Thus the requisite knowledge, skill, expertise and level of expertise should stand verified on verification of license by the Medical Council to practice in the professed field of medicine. It can not be a matter of subjective assessment.

The care or level of care, like medical skill, is an intangible postulate. To be verified objectively it has to be in assessable tangible format.

Care, to a medical man, is, timely fulfillment of diagnostic and therapeutic medical needs of an individual for a particular disease episode. This means that a patient must be examined, duly diagnosed, his medical needs assessed, and interventions to meet those medical needs done in due time. Catering to the medical needs is the criteria of care. This can be objectively verified from the patient record that is faithfully maintained as per the guidelines.

Deficiency in care is not carelessness, and hence, not negligence.

A faithfully maintained treatment record of the patient shows the good faith of the doctor.

CAUTION This again, as generalized postulate, is an abstract intangible proposition.

Caution is anticipation of possible adverse consequences and preparedness to prevent and deal with them. Exercising caution is an integral part of skill – surgical skill while operating and medical while treating a patient. It is imparted and acquired as a part of training. The level of skill improves with actual practice and experience. There is always a learning curve. A duly qualified medical professional is presumed in good faith to be exercising caution in routine treatment of a patient. It is only in grossly wrong acts such as operating on a wrong person or on wrong part or organ of the body, or leaving a swab inside the body, or to give a drug to a patient who is a known allergic to the drug that the professional's skill should be questioned, in a complaint under CPA, as is stipulated in Medical Association v V P Shatha case that included medical services in the Act.

Indifference to obvious consequences i.e. failure to exercise due caution, is recklessness. It is such reckless acts that can be best assessed in summary trial proceedings under CPA.

Once the competence of a medical professional and the consent for intervention is verified a medical professional should be given the benefit of good faith as provided in law and should be out of the purview of the consumer fora.

It may be remembered that accidents in doing a lawful act, which here means in consonance of Sec.88 IPC, done in lawful manner by lawful means, which means in consonance with medical norms, with proper care and caution is not actionable. The relevant provision is as follows: -

Sec.80 IPC. Accident in doing a lawful act. - Nothing is an offence which done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. (Emphasis added)

Consent: This is covered in Ss 90, 91 and 92 IPC. These sections stipulate that consent to be valid in law should be a free and informed consent.

Free means free of coercion, deceit and inducement or Force, Fear, Fraud

IPC 90. Consent known to be given under fear or by any section of this Code, if the consent is given by a person under fear of injury, or under misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. - A consent is not such a consent as is intended ;

or

Consent of insane person. If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child. Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Informed consent is obtained after making the patient understand the risk and consequences of the consent. The three components of free and informed consent are (a) disclosure, (b) capacity and (c) voluntariness. How much and what facts are to be disclosed is the physician's prerogative but it should be sufficient in a manner for the patient to understand the risk. The patient must be of competent age to give consent and must be conscious and alert to understand the risk and should be in a position to give the consent freely on his/her own volition.

Surrogate consent: Surrogates are substitute persons who are permitted by law or custom or authorization to make decisions for an incompetent person. In law, any person who has a lawful custody of the incompetent person is a lawful surrogate, otherwise, it mostly follows a kinship line i.e. consent by a legal guardian or person who has lawful custody of the patient. Examples: A warden of a hostel is lawful guardian of all the inmates of the hostel. A public man picking up an injured person from the street and bringing him to hospital is lawful guardian of the patient. In emergency situation, consent by the attendant at that time enables or prohibits the treating doctor from instituting the indicated procedure.

Provisions of Section 92 IPC relevant to the aforesaid are reproduced bellow: -

IPC 92 Act done in good faith for benefit of a person without consent

Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided:

1. That this exception shall not extend to the intentional causing of death, or the attempting to cause death;
2. That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmi­ty;
3. That this exception shall not extend to the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of death or hurt;
4. That this exception shall not extend to the abetment of any offence, to the committing of which offence it would not extend.

The basis of this provision is good faith.
Implied consent: Permitted only under stipulated circumstances i.e. when

1. the patient, by age or mental or physical condition, not competent to consent.
2. guardian not available for consent
3. patient's condition warrants immediate intervention
4. the intervention is to prevent death or grievous hurt or for curing of grievous disease or infirmity.

Again the basis of this provision is good faith.
It is submitted that once the competence of medical professional and the consent for intervention is verified, a medical professional should be given the benefit of good faith as provided in law and should be out of the purview of the consumer fora.

Good faith certification by complainant in medical negligence suit.

An interesting aspect of Good Faith is requirement of certificate by the complainant that the complainant has made honest attempt to analyze the case and has taken independent medical opinion in the case.

What is the Certificate of Good Faith Requirement with Regard to Medical Malpractice Claims in Connecticut?
Before a plaintiff can file a medical malpractice action, Connecticut General Statutes Section 52-190a requires the plaintiff to make "a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant."

If the plaintiff determines good faith exists and files suit, the complaint must "contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant."

The precomplaint inquiry and good faith certificate requirements for a medical malpractice action were enacted as part of tort reform legislation in 1986. "[T]he general purpose of Section 52-190a is to discourage the filing of baseless lawsuits against health care providers." "The purpose of the certificate is to evidence a plaintiff's good faith derived from a precomplaint inquiry. It serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence."

Good faith may be shown to exist if the plaintiff has received a written opinion that there appears to be evidence of medical negligence. The opinion will have to be attached to the complaint but the identity of the expert giving the opinion need not be disclosed.

Such a provision in India will discourage and prevent filing of frivolous complaints against medical professionals.

Written By: Dr. S. G. Kabra
15, Vijay Nagar, D-block, Malviya Nagar, Jaipur-302017