• Devesh Saxena

Can Hospitals be sued for Medical Negligence and Overcharging Patients?

To Err Is Human. It is natural for human beings to make mistakes and doctors are no exception to it. At the same time, it is important for doctors to perform their duty with sheer expertise, skill, caution, and generous intent. It has been more than one year since the entire globe is going through a pandemic. The health management of this country has been poorly collapsed, but it has started to recover because of the health workers all around India who have been putting their lives at risk and have been working continuously and tirelessly to secure emergency health conditions. We all call them "COVID Warriors", but on the contrary, there are so many incidents of hospitals committing medical malpractices like negligence and overcharging patients. Here, the role of the judicial system becomes significant to fill this lacuna and to create awareness regarding the procedure to seek legal remedies against hospitals that indulge in medical malpractice.


The 2015 survey by the National Sample Survey Office shows us that people chose the private healthcare system for medical services in more than 70 percent of illness rather than the public healthcare services in India. It implies that this sector has to be regulated. Thus, the instances of maladministration and unethical practices can be brought under medical establishment laws and essential services maintenance laws. In June 2020, around 18 private medical establishments in Karnataka were issued a legal notice under the Karnataka Private Medical Establishment Act, 2007 for denial of medical assistance on the false pretext of non-availability of beds and ventilators.[1]


The day won’t be so far when we will be the next victim of medical malpractices like negligence or overcharging. Hence, it is very important to know what should be done during such circumstances. This article discusses various situations and possibilities where a hospital or a doctor can be held responsible for committing medical malpractices like negligence and overcharging the patient and legal remedies against the same.


What is Medical Negligence:


Medical negligence means a breach of duty by doctors or medical practitioners by not adopting appropriate measures and safeguards and subsequently amounting to harm to patients. To prove the breach of duty by doctors or medical practitioners, we need to know what the basic duties of them are.


In the case of Dr Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and Anr[2], the Supreme court laid down the duties of health practitioner as following:


a. The duty to carefully handle the administration of the hospital to secure the treatment of patients.

b. Not to overcharge the patients for any treatment.

c. The duty to carefully decide what treatment is appropriate for the patient in certain cases.


In the case of State of Haryana v. Smt Santra[3], the Supreme Court stated that every medical practitioner has the responsibility to work with a suitable amount of skills and care.


Medical negligence is generally caused by not taking proper care or by carelessly handling the medical cases by health practitioners during diagnosis, operations or while injecting anesthesia. The most common causes for medical negligence include lack of procedural safeguards, incorrect dosages, surgical errors, operation theatre contamination, blood transfusion contamination, mistreatment, wrong diagnosis, etc., which can be potentially prevented by taking a proper standard of care is required.[4]


Which Sections of criminal law deal with the cases of medical negligence:


  • Section 304-A of Indian Penal Code – “A person who commits a rash or negligent act which amounts to culpable homicide will be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”[5]

  • Section 337 of Indian Penal Code – A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.”[6]

  • Section 338 of Indian Penal Code – “A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”[7]

Instances of Overcharging during the Covid outbreak:


Healthcare system in India has largely been dependent on the private sector, however, the pandemic has exposed exorbitant and inconsistent billing. Our doctors and paramedical staff (both public and private) have set a good example of serving the people during these difficult times wholeheartedly, but unfortunately, there are some black sheep in the system who are putting a great dent in the image of the medical profession. There have been several reports where hospitals have been billing incessantly and imposing a lot of hidden costs which makes one wonder whether much of the medication or treatment was necessary or was administered to the patient at all? Also, the patients or their attendants never know with whom they can check to confirm or check the same.


As the pandemic has spread, so have demands for the Indian government to regulate the rising costs of healthcare in private hospitals, which provide the bulk of the country’s medical treatment. India has nearly twice as many private hospitals as public ones—an estimated 43,487 versus 25,778 [8]—despite about 85.9% of India’s rural population and 80.9% of its urban population having no health insurance.[9]


Treatment at public medical facilities is free, but the quality of care varies greatly among states, and Covid-19 has exposed the lack of government investment in terms of equipment, facilities, and staff. Mostly the good facilities and medications are available only in private hospitals, and even then they’re concentrated in just a handful of states. All of this serves to compel desperate patients towards private healthcare, even if they can afford it.


We have been witnessing unrealistic charges and rates being imposed arbitrarily in the name of medications and healthcare. There have been reports where hospitals have been charging bills to the tune of Rs. 40,000 to Rs. 80,000 per day.[10] Further, there have been innumerable instances where patients have been compelled to pay huge amounts which were more than 5 times the usual amounts, and sometimes even in Lakhs, to avail the Ambulances Services.[11] There have also been incidents where private hospitals have been fleecing patients by charging above the rates fixed by the government.[12] Despite there being several government orders in place to check 'overcharging', the hospitals have turned a blind eye to such orders and are continuing to charge hefty to the helpless covid patients causing them serious financial hardships and mental agony.[13] Upon arduous negotiations and mercy pleadings, these 'money-making machines' give the option to take patients back or stick to what amount they demand.


Legal remedies against medical malpractices under different statutes in India:


1. Remedies under Consumer Protection Act, 2019:


The Consumer Protection Act, 2019 governs all medical services. Also, the interest of all the consumers is being protected against the deficiency of services. Section 2(11)[14] of Consumer Protection Act, 2019 defines 'Deficiency of Service' as “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise concerning any service and includes (a) any act of negligence or omission or commission by such person to the consumer and (b) deliberate withholding of relevant information by such person to the consumer.


When it comes to medical negligence it was decided in a landmark judgment in the case Indian Medical Association vs. V.P. Santha –III[15], service provided by almost every doctor is covered under this act. After this judgement an aggrieved person can claim damages for medical negligence against a doctor or a hospital.


In Kusum Sharma v. Batra Hospital and Medical Research Center and Ors.[16], the court also stated that if the medical practitioner fails to maintain the standards of reasonable care or competence then that medical practitioner will be held liable for medical negligence, which gives rise to the deficiency in medical service in terms ofSection 2(1)(g) of Consumer Protection Act.


One can file the complaints under the Consumer Protection Act depending upon the pecuniary jurisdiction of the forums:

  • At the District Commission if the value of services and compensation claimed is less than Rs. 1 Crore, or

  • At the State Commission, if the value of the goods or services and the compensation claimed is between Rs. 1 Crore to Rs. 10 Crores, or

  • At the National Commission, if the value of the goods or services and the compensation exceed more than Rs. 10 Crores.

There is a minimal fee for filing a complaint before the District Consumer Redressal Forums.


2. Suit for Damages under Law of Tort:


One can also file a Civil Suit for damages in the Civil Court for damages under the law of tort in order to get compensation if there is a violation of the right of a person. For instance, a hospital can be held vicariously liable to pay the damages in form of compensation if a doctor breaches of duty of care.


The case of Dr. Balram Prasad v. Dr Kunal Shah and Ors.[17] recognized for the highest amount of compensation granted by the supreme court. In this case, the Supreme Court has awarded an amount of six crores plus interest which makes a total amount of twelve crores as compensation because the case was pending for the past fifteen years for medical negligence which led to the death of the petitioner’s wife.


In Mr. M. Ramesh Reddy v. State of Andhra Pradesh[18], the bathroom of the hospital was not clean and subsequently, the patient slipped, and he died on the spot. The court, in this case, held that the hospital can be held liable for the negligent act committed by the employee of such hospital. The court further stated that the Senior doctor can also be held liable for the act of the Junior doctor.


In the case of Lakshmi Rajan v. Malar Hospital Ltd.[19], the patient was a forty-year-old married woman who was suffering from a severe painful lump in her breast. Because of the painful lump and for the treatment, diagnosis, and examination, she went to the Malar Hospital Ltd. Her uterus was removed though the lump did not affect it. Because of this miscarriage happened and she lost her child. The court held the hospital liable to pay compensation of two lakh rupees to the complainant.


3. Criminal Action:


One can always initiate criminal proceedings against a particular doctor or a hospital administration alleging medical malpractices such as negligence and overcharging.


In the case of State of Haryana v. Smt Santra[20], the Supreme Court has stated that, ”the liability in civil law is based on the damages incurred and in criminal law the degree of negligence is a factor in determining the liability”.


However, the elements like the motive or the intention behind the offence, the magnitude or degree of the offence and the character of the offender must be established to determine the criminal liability.


In Jacob Mathew v. State of Punjab & Anr.[21], the court has stated that 'a very high degree of negligence is required to be proved for imposing criminal liability.


The Criminal liability for medical negligence may be imposed if -

  • The doctor does not possess the requisite skill which he claimed to possess, or

  • The doctor possesses the skills but did not exercise the same with reasonable care and competence in a given case.

In Poonam Verma v. Ashwin Patel[22], the Supreme court has distinguished between negligence, recklessness, and rashness, and also defined what amounts to criminal liability:

  • A person is said to be acted negligently when he/she unintentionally commits an act or omission that causes a breach of his/her legal duty.

  • A person who acted in a rash manner when he/she knows the consequences but foolishly thinks that they won’t occur as a result of his/her act.

  • A reckless person knows the consequences but doesn’t care whether or not they result from his/her act.

The Court also stated that ‘any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability.’


In R. vs Adomako[23], the court stated that a doctor is liable under criminal law if it is proved that such a doctor was negligent in performing his duty, with disregard to the patient’s right to life and right to safety.


4. Disciplinary action under Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002:


Chapter 8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics and Regulations, 2002) made under the Indian Medical Council Act, 1956 states the punishments and disciplinary action for medical negligence and misconduct.


If a medical practitioner is found guilty of committing misconduct by the appropriate Medical Council, then he can be punished as follows:

  • The name of such medical practitioner can be removed from the register of medical practitioners permanently or for a specific period.

  • If a complaint has been reported then the council may restrain the medical practitioner from performing the procedure or practise under scrutiny.

  • If the medical practitioner is removed, then it should be widely publicized through local press and publications of different Medical Associations or bodies to aware the people.[28]

Procedure to Sue hospitals for negligence and overcharging patients:


In cases where you find yourself being overcharged by the hospital you can initiate a complaint against the hospital as follows:


  • Keep all documentary proof with yourself including all bills and prescriptions such as- Prescription of doctor for the patient, Bills from the hospital, Proof of MRP of the particular product, Receipts with the signature of hospital representatives, Identity proof of the patient, Hospitalisation Certificate. It is important to attach all the evidence to the case. The degree of proof is higher in Criminal Cases in order to prove the guilt of the accused beyond a reasonable doubt.

  • Make an official complaint to the management of the hospital so that they may correct themselves immediately.

  • You can file a complaint with the local medical officer of the government as well.

  • You can also contact your insurance company to look into the matter as they are an affected party and would be keen to rectify any cases of overcharging by the hospitals.

  • You can also file a complaint with the consumer court in your district. Determine whom to sue or against whom you should proceed for taking appropriate legal action. Also, Determine the damages and the quantum of compensation. For any legal action against the hospital, you can also approach a lawyer through whom you can file a case against the hospital at fault.

  • You can contact the Office of the Controller of Legal Metrology in your state either through a letter or an email.

  • You can contact the state or Central Health Ministry which can address your concern.

  • You can also write to the Medical Council of India and the Drug Council of India.

  • You can also file a complaint with the consumer court in your district.

Conclusion:


Covid-19 is surging uncontrollably throughout India, causing disruption in big and small cities and loss to rich and poor alike. There is a huge outcry for lack of medical facilities where people have been succumbing to the pandemic without for want of necessary medication at the right time. In such a scenario, it is highly unjust and unreasonable if a person has to face personal or financial loss due to several medical malpractices like negligence and overcharging. Doctors and Hospitals should not assume themselves in a commercial business rather they should devote themselves to the service of mankind. Profits from these hospitals, which go into paying the high salaries of doctors and top executives, should not take precedence over attempts to regulate them or stop malpractice, such as overcharging patients or unnecessary surgeries.


The Government of India, though after much delay, has been making efforts to reduce prices of life-saving medical devices and medicines which are still being heavily charged by hospitals. As per law, packaged commodities cannot be charged over their maximum retail price or MRP. So as a consumer, you can now sue any hospital which is overcharging you for any such commodities above their MRPs.


Though for any patient and his or her family, being admitted to the hospital is a testing time, it is important that you stay aware and take timely action to avoid being exploited by hospitals. Always remember, awareness is your best recourse.


[1] Meghna Mishra and Ankit Rajgarhia, India: The Law, Medical Malpractice and A Global Pandemic, Mondaq: connecting knowledge and people (May 27, 2021, 03:15 pm), https://www.mondaq.com/india/healthcare/979324/the-law-medical-malpractice-and-a-global-pandemic [2] Laxman Balkrishna Joshi vs Trimbak Bapu Godbole and Anr, 1969 AIR 128, 1969 SCR (1) 206, 2 May, 1968 [3] State Of Haryana & Ors vs Smt. Santra, (2000) 5 SCC 182, 24 April, 2000 [4] Sri Vaishnavi, Medical Negligence, Ipleaders: Intelligent Legal Solutions, (May 27, 2021, 04:20 pm), https://blog.ipleaders.in/medical-negligence-2/ [5] Indian Penal Code, s. 304A (1860) [6] Indian Penal Code, s. 337 (1860) [7] Indian Penal Code, s. 338 (1860) [8] Center For Disease Dynamics, Economics & PolicyKapoor G, Sriram A, Joshi J, Nandi A, Laxminarayan R. Covid-19 in India: state-wise estimates of current hospital beds, intensive care unit (ICU) beds and ventilatorsCenter For Disease Dynamics, Economics & Policy. 21 Apr 2020. https://bit.ly/3m3V4th. [9] Government of India. Key indicators of social consumption in India: Health. Nov 2019. http://mospi.nic.in/sites/default/files/publication_reports/KI_Health_75th_Final.pdf.

[10] '4 private hospitals booked for overcharging', The Tines of India, (June 2, 2021, 11:30 am) https://timesofindia.indiatimes.com/city/gurgaon/4-private-hospitals-booked-for-overcharging/articleshow/83048734.cms

[11] 'Ambulance Charges ₹ 1.2 Lakh For Carrying Patient 350 Km, 1 Arrested', (June 2, 2021, 11:30 am) https://www.ndtv.com/india-news/ambulance-charges-rs-1-2-lakh-for-carrying-patient-350-km-1-arrested-2437175

[12] 'Private hospitals overcharging Covid patients won’t be spared: Punjab health minister', (June 2, 2021, 11:30 am) https://indianexpress.com/article/cities/ludhiana/private-hospitals-overcharging-covid-patients-wont-be-spared-punjab-health-minister-7319223/d patients won’t be spared: Punjab health minister

[13] 'India Coronavirus Dispatch: Pvt hospitals overcharge despite govt orders' (June 2, 2021, 11:30 am) https://www.business-standard.com/article/current-affairs/india-coronavirus-dispatch-pvt-hospitals-overcharge-despite-govt-orders-120081100888_1.html [14] The Consumer Protection Act, s. 2(1)(2019) [15] (1995) CPJ 1(SC). [16] Kusum Sharma & Ors vs Batra Hospital &Med.Research, NCDRC, 10 February, 2010. [17] Dr. Balram Prasad v.Dr Kunal Shah and Ors., (2014) 1 SCC 384. [18] M. Ramesh And Co. vs State Of Andhra Pradesh, on 3 April, 1975 [19] Lakshmi Rajan v/s Malar Hospitals Ltd. & Another O.P.No. 379 of 1993 [20] Supra at 3. [21] Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005 [22] Poonam Verma vs Ashwin Patel & Ors on 10 May, 1996 [23] R vs Adomako, 1994 3 All ER 79 [24] Supra at 4.


Author: Gaurav Kulkarni, Intern at S&D Legal Associates.

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