August 30, 2020 marks seven months since the declaration of a global health emergency, Covid-19. As the sorry state of affairs ensued by it continues, humankind is reflecting and working towards improvising systems to be better equipped in similar future events. Jurisdictions around the globe are making efforts to flatten the curve of infection and the only hope for the world is a vaccine or a cure coming from the medical community. India has also ensured a proactive response and the government is striving to leave no stones unturned to contain the spread of the virus.
Nevertheless, the pandemic and the consequential governmental response have stimulated an exponential upsurge in the business of healthcare sector. Not only masks and sanitizers were classified as essential commodities due to shortage of supply, hospital beds and treatments are also having overwhelming demands. Although, the services of the medical professionals, health workers and other related staffs are worthy of commendation, we can also, on the other hand, notice rising instances of institutional mismanagement of Covid-19 patients in this sector. These factors surely raises concerns about commercialization and exploitation of the current scenario at the hands of healthcare service providers and institutions.
The role of law and judiciary increases in such times of turmoil because it is still expected to evolve and preserve the constitutional fabric. This article is a discussion on the civil liabilities emanating from practices such as non-adherence to safety protocols, raising exorbitant bills, denying medical assistance or hospital beds etc. inter alia and on the possible way forward.
Negligence, Maladministration & Civil Liabilities
Negligence, simply put, is failure to exercise duty of care which results in an injury. Medical negligence is no different except that a higher degree of care is expected as in these cases the defendant is a specialized professional discharging a crucial role. Civil liabilities for medical negligence or malpractice can be attributed either to a medical institution or a doctor. They may arise from various causes which may involve any act or omission that has resulted in an injury to a patient. The burden of proof in such cases lies with the plaintiff and the law generally requires a higher degree of evidence to support a claim of medical negligence.
While a doctor running his individual medical practice has complete civil liability for the treatment he gives, a hospital on the other hand, has to assume liability for the mis-treatment done by its employees which includes doctors and as well as other staff personnel. This is because hospitals are covered under the provisions of the Indian labour laws which recognize an employer employee between them and their doctors, subject to certain conditions.
Insofar as the judicial stance is concerned, causation is given due regard. The Courts have held that of all possible reasons due to which the patient might have suffered injury, the breach of the doctor's duty was the most probable cause. Also, such matters are usually taken under the consumer protection laws. However, it is true and acknowledgeable that even the most qualified medical professional could make a mistake in treatment and expecting any kind of warranty for perfection is extremely impracticable. Thus, the Supreme Court ('SC') in the case of Indian Medical Association v. V.P. Santha (1996), had come up with certain exceptions to the cases where the doctors are made liable for their services individually or vicariously.
The latest 2015 survey by the National Sample Survey Office indicates that the state of public healthcare services in India has caused people to depend on private healthcare services for medical attention in more than 70 percent of the illness. This is enough evidence to compel us into thinking that the sector cannot be left unregulated. Thus, 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 false pretext of non-availability of beds and ventilators.
How COVID-19 changes this position?
The need to protect the medical practitioners from frivolous and unjust prosecutions has been highlighted by the SC in Jacob Mathew v. State of Punjab (2004), while framing guidelines for the cases of alleged negligence against them. However, the operational circumstances of the present times are totally different from what an ideal scenario normally is. During, the pandemic there have been suggestions that medical practitioners should be temporarily absolved from medical negligence in view of the trying conditions under which the doctors are working.
Jeremy Samuel Faust, an emergency physician and an instructor at Harvard Medical School, suggested that an urgent executive order to relax the legal standard of medical malpractices would be dramatically instrumental in freeing up hospital beds for Covid-19 treatments. Dr. Faust, in his Washington Post article, has described the working rationale of the doctors and how their inclination has shifted from keeping a stable patient in hospital observation to discharging less sick patients for admitting critically ill ones. However, departing from the usual course of action costs the practitioners the risk of negligence which, if happens even in 1 of 1000 cases, would ruin the medical career and thus the fear of lawsuits needs to go away for now.
The state of affairs in India is no different as we have been frequently witnessing news reports on problems relating to hospital bed shortage. However, the opinions of temporary limitation on medical malpractice claims itself begs the question whether it would act as a panacea for the problems posed by this pandemic. It boils down to the desirability of the measure in healthcare infrastructures that has already been facing setbacks in the form of administrative mismanagement, unethical practices and lapses in basic facilities. It would not be an exaggerated apprehension that if given a leeway, medical institutions may misuse it thereby aggravating the problem further.
Conclusion and Suggestions
Although, the current emergent pandemic is extraordinary and certainly call for diverse actions but the practicability of putting an absolute embargo on the legal standards of medical practice don't seem to be justified. The solution may lie in a separate set of directives being issued in light of the prevalent situation so as to balance the interests of the patients, doctors and other stakeholders. Such directives should be issued specifically for regulating medical activities and treatments in times of coronavirus and bear in mind the following: The government, in consultation with the Indian Council of Medical Research, may prescribe the minimum standard of care for patients infected with Covid-19.
- Discharge policies of medical institutions with respect to infected patients can be revised as per the latest research carried out by the WHO and ICMR on Covid-19.
- A civil liability claim may be initiated against doctors for negligence but they may not be made liable for culpable or criminal negligence in all cases of error in judgements insofar as Covid-19 treatments are concerned. However, gross negligence, indifference and recklessness can be carved out as exceptions to the said rule.
- States may be directed to ensure transparent allocation of medical assistance by creating a unified public portal for updating the availability of beds, ventilators and the like. for the period of pandemic.
- Clinical Establishments (Registration and Regulation) Act, 2010 which has till date been adopted by 14 states throughout India can be brought into force across the country and it's strict implementation can go a long way in checking corruption and latches in the healthcare industry.
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