Author Name:   Radhika Shukla

.All medical professionals, doctors, nurses, and other health care providers are responsible for the health and safety of their patients and are expected to provide a high level of quality care. Unfortunately, medical professionals and health care providers can fail in this responsibility to their patients by not giving them proper care and attention, acting maliciously, or by providing substandard care, thus causing far-reaching complications like personal injuries, and even death.

Medical Negligence Liability of Hospitals

According to Salmond’ Law of Torts, negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is the breach of a legal duty of care. A breach of this duty gives the patient a right to initiate action against negligence .All medical professionals, doctors, nurses, and other health care providers are responsible for the health and safety of their patients and are expected to provide a high level of quality care. Unfortunately, medical professionals and health care providers can fail in this responsibility to their patients by not giving them proper care and attention, acting maliciously, or by providing substandard care, thus causing far-reaching complications like personal injuries, and even death. Over the years the function of the hospital has slowly changed from ‘a venue for treatment’ to ‘a provider of treatment.’ It is important to remember that virtually every country in the world operates its own unique legal system. Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of health care providers.

Civil Vs Criminal Negligence And Consumer Protection Act

Hospitals in India may be held liable for their services individually or vicariously. They can be charged with negligence and sued either in criminal/ civil courts or Consumer Courts. As litigations usually take a long time to reach their logical end in civil courts, medical services have been brought under the purview of Consumer Protection Act,1986 wherein the complainant can be granted compensation for deficiency in services within a stipulated time of 90 -150 days.Cases, which do not come under the purview of Consumer Protection Act, 1986 (e.g., cases where treatment is routinely provided free of cost at non-government or government hospitals, health centers, dispensaries or nursing homes, etc.) can be taken up with criminal courts where the health care provider can be charged under Section 304-A IPC 4 for causing damages amounting to rash and negligent act or in Civil Courts where compensation is sought in lieu of the damage suffered, as the case may be.

Liability of Hospitals in Cases of Negligence

Hospitals liability with respect to medical negligence can be direct liability or vicarious liability. Direct liability refers to the deficiency of the hospital itself in providing safe and suitable environment for treatment as promised. Vicarious liability means the liability of an employer for the negligent act of its employees 5.

An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of ‘respondent superior’ meaning ‘let the master answer’. Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per aliumfacit per se", i.e. the one who acts through another, acts in his or her own interests. This is a parallel concept to vicarious liability and strict liability in which one person is held liable in Criminal Law or Tort for the acts or omissions of another. An exception to the above principle is ‘borrowed servant doctrine’ according to which the employer is not responsible for negligent act of one of its employee when that employee is working under direct supervision of another superior employee [e.g. Where a surgeon employed in one hospital visits another hospital for the purpose of conducting a surgery, the second hospital where the surgery was performed would be held liable for the acts of the surgeon]. Other circumstances, it has to be voluntary, i.e., with the knowledge and express written consent of the person as it is necessary to respect the individual’s need to maintain confidentiality 8. Hospitals can be charged with negligence for transmission of infection including HIV, HBsAg, etc. if any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital. As applicable to any other organization, hospitals too cannot blanketly refuse to give employment on the basis of an individual’s HIV status.

It depends on what job a particular person is to be employed for. A sero-positive individual can be employed if there is no question of him/her coming in contact with patients or procedures that can result in spread of infection. If any person on the rolls of a hospital is found to be sero positive or develops AIDS, the hospital should review that person’s staff privileges and determine whether or not the medical condition interferes with the persons’ ability to perform on the job and whether the condition creates a health risk to the patients.

The Centre for Disease Control [CDC] although does not advise that HIV positive individuals be routinely restricted from performing surgery, it does recommend that the restrictions be determined on a case by case basis. The employee could be given other duties in the hospital that involves lesser degree of direct patient care or could be required to use extra safety precautions while dealing with patients. There is no generally accepted medical evidence that HIV can be transmitted through normal day to day contact in typical private workplace setting.

The CDC has issued guidelines that recognize that, with the exception of health care workers and personal service workers who use instruments that pierce skin, no testing or restriction is indicated for workers known to be infected with HIV but otherwise is able to perform their jobs. If any hospital does not follow the guidelines and there results an infection of the patient, it can be held directly responsible for negligence 8. Misleading signboards, prescription slips and advertisements of hospitals can be construed as deficiency in service or unfair trade practice under the Consumer Protection Act,1986 and damages can be awarded for such practices. Wrong claims of availability of certain facilities like some hospitals claiming in their sign boards/ prescription slips that 24 hr emergency services are available in their setup but in fact they lack basic emergency facilities like services of a doctor round the clock, necessary equipment in working order, intensive care facilities etc. construes negligence. Wrong depiction of qualifications of doctor like MD [Gyn.] against a doctor’s name creating an impression and misleading the patients that the doctor possesses PG degree in Gynecology whereas it was obtained from Germany and was equivalent to MBBS as per rules of MCI may also be construed as negligence [1993 (1) CPR 422 (NCDRC)]. Claiming guaranteed results for operative procedures that do not give desired outcome also amount to negligence.

Vicarious Liability

A hospital can be held vicariously liable on numerous grounds on different occasions. Several High Court Judgments have held hospitals vicariously liable for damages caused to the patients by negligent act of their staff. In one judgment of the Kerala High Court in Joseph @ Pappachan v. Dr. George Moonjerly [1994 (1) KLJ 782 (Ker. HC)], in support of the following effect stated that ‘persons who run hospital are in law under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel.

They must do it by the staff which they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs other to do his duties for him. In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)], it was held that it was the hospital that was offering the medical services. The terms under which the hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. It is expected from the hospital, to provide such a medical service and in case where there is deficiency of service or in cases, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability by stating that there is no master-servant relationship between the hospital, and the surgeon who performed the operation. The hospital is liable in case of established negligence and it is no more a defense to say that the surgeon is not a servant employed by the hospital, etc.

In another judgment by the National Consumer Redressal Commission in case of Smt. Rekha Gupta v. Bombay Hospital Trust &Anr.[2003 (2) CPJ 160 (NCDRC)], related to negligence of a consultant doctor, the Commission observed that the hospital who employed all of them whatever the rules were, has to own up for the conduct of its employees. It cannot escape liability by mere statement that it only provided infrastructural facilities, services of nursing staff, supporting staff and technicians and that it cannot suo moto perform or recommend any operation/ amputation. Any bill including consultant doctor’s consultation fees are raised by the hospital on the patient and it deducts 20% commission while remitting fees to the consultant. Whatever be the outcome of the case, hospital cannot disown their responsibility on these superficial grounds. The hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the anesthetists and surgeons, who practice independently but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services.

The terms under which the defendant hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third1986 and damages can be awarded for such practices. Wrong claims of availability of certain facilities like some hospitals claiming in their sign boards/ prescription slips that 24 hr emergency services are available in their setup but in fact they lack basic emergency facilities like services of a doctor round the clock, necessary equipment in working order, intensive care facilities etc. construes negligence. Wrong depiction of qualifications of doctor like MD [Gyn.] against a doctor’s name creating an impression and misleading the patients that the doctor possesses PG degree in Gynecology whereas it was obtained from Germany and was equivalent to MBBS as per rules of MCI may also be construed as negligence [1993 (1) CPR 422 (NCDRC)]. Claiming guaranteed results for operative procedures that do not give desired outcome also amount to negligence.

Vicarious liability a hospital can be held vicariously liable on numerous grounds on different occasions. Several High Court Judgments have held hospitals vicariously liable for damages caused to the patients by negligent act of their staff. In one judgment of the Kerala High Court in Joseph @ Pappachan v. Dr. George Moonjerly [1994 (1) KLJ 782 (Ker. HC)], in support of the following effect stated that ‘persons who run hospital are in law under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel. They must do it by the staff which they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs other to do his duties for him. In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)], it was held that it was the hospital that was offering the medical services. The terms under which the hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. It is expected from the hospital, to provide such a medical service and in case where there is deficiency of service or in cases, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability by stating that there is no master-servant relationship between the hospital, and the surgeon who performed the operation.

The hospital is liable in case of established negligence and it is no more a defense to say that the surgeon is not a servant employed by the hospital, etc. In another judgment by the National Consumer Redressal Commission in case of Smt. Rekha Gupta v. Bombay Hospital Trust & Anr.[2003 (2) CPJ 160 (NCDRC)], related to negligence of a consultant doctor, the Commission observed that the hospital who employed all of them whatever the rules were, has to own up for the conduct of its employees. It cannot escape liability by mere statement that it only provided infrastructural facilities, services of nursing staff, supporting staff and technicians and that it cannot suo moto perform or recommend any operation/ amputation. Any bill including consultant doctor’s consultation fees are raised by the hospital on the patient and it deducts 20% commission while remitting fees to the consultant. Whatever be the outcome of the case, hospital cannot disown their responsibility on these superficial grounds.

The hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the anesthetists and surgeons, who practice independently but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services. The terms under which the defendant hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. The patients go and get themselves admitted in the hospital relying on the hospital to give them medical services for which they pay the necessary fee. It is expected from the hospital, to provide such medical service and in case where there is deficiency of service or in cases like this where the operation has been done negligently without bestowing normal care and caution, the hospital must also be held liable.

Conclusion
The complex legal relationship between hospitals, doctors and paramedical staff leads to issues, which the courts find difficult to resolve. However, certain trends have emerged in modern medicine:
1. There is a need to provide competent care based on a national standard.
2. Competent care is no longer predicated on ‘locality rules’. The state has to intervene with statutes and regulations to ensure that a ‘standard’ of practice is established in hospitals.
3. The hospital has both a vicarious as well as an inherent duty of care (corporate obligation) toits patients.
4. The statutory regulations result in doctors being involved directly in setting of standards. This brings a separate liability upon the doctors independent of their professional liability.
5. There is a demand not only for establishing initial standards of care, but for continuous monitoring of these standards and proactive measures to ensure that they are updated.

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