|Year : 2016 | Volume
| Issue : 1 | Page : 1-2
Hospital's liability in malpractice suits
Thounaojam Meera, Memchoubi Phanjoubam, Huidrom Nabachandra
Department of Forensic Medicine, Regional Institute of Medical Sciences, Imphal, Manipur, India
|Date of Web Publication||5-Feb-2016|
Department of Forensic Medicine, Regional Institute of Medical Sciences, Imphal - 795 004, Manipur
Source of Support: None, Conflict of Interest: None
|How to cite this article:|
Meera T, Phanjoubam M, Nabachandra H. Hospital's liability in malpractice suits. J Med Soc 2016;30:1-2
Absence of reasonable care and skill or willful negligence of a doctor in the treatment of a patient that causes bodily injury or death is called professional negligence or malpraxis.  In medical practice, a doctor may be sued for civil or criminal negligence. When a doctor fails to exercise reasonable care and skill while causing foreseeable damage to the patient, civil negligence cases may arise; whereas when the negligence of the doctor involves gross incompetence and inattention leading to serious injuries or death of a patient, it is termed as criminal negligence and is culpable. The awareness of medical negligence is on the rise in India and doctor-patient relationship has strained considerably leading to the increasing number of malpractice suits.
On the other hand, corporate negligence deals with the corporate liability in cases involving hospitals and their staff physicians.  In present times, hospitals across the country are often facing malpractice suits. It is a known fact that the legal concept of malpractice is not limited to the conduct of medical doctors, but applies as well to nurses, health care facilities, pharmaceutical companies, other health care providers, etc.  Hence, liability of hospitals in medical malpractice cases may be in terms of direct liability or vicarious liability. Hospitals, government or private, may be held vicariously liable of negligence of their employees. The meaning of vicarious liability or respondeat superior (let the master answer) is that a man may be liable to damages for an act of negligence committed by his servants or agents in the course of their employment or agency. 
Some of the conditions under which a hospital may be held directly liable include: 
- Improper maintenance of the hospital leading to injuries or death to the patient;
- Failure in providing safe and suitable environment for treatment as guaranteed, viz, when the patient care is affected by absence or malfunctioning equipments, inadequate accommodation, incompetent staff, etc., resulting in harm to the patients;
- Deceptive or misleading signboards and advertisements, wrong claims of availability of certain facilities may be construed as deficiency in service or unfair trade practice under the Consumer Protection Act, 1986 and damages can be awarded for such practices;
- Charging for a bed facility, which was not provided, taking surcharges, amount taken as medicolegal charges or charging fees in excess of that mentioned in the list of charges displayed or disclosed or agreed upon;
- Human immunodeficiency virus (HIV) and Hepatitis B surface Antigen (HbsAg) testing are either mandatory or voluntary. When the testing is legally done without the consent of the person, it is known as mandatory testing, e.g., for screening donors of blood, semen, organs, or tissues, etc. Otherwise, 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; and
- Improper maintenance of treatment records and failure to hand over such medical records to the patient or his authorized attendant or legal authorities within 72 h, which are in violation of the Medical Council of India Regulations 2002.
Moreover, if these medical records are not provided to the patients/attendants, it may, in addition, amount to the deficiency in service under the Consumer Protection Act, 1986.
On the other hand, a hospital may be held vicariously liable for damages caused to the patient by negligent act of its employees. Being an employer, it is liable as well under the principle of "qui facit per alium facit per se", i.e., the one who acts through another, acts in his or her own interests. However, there is an exception to this principle which is called "borrowed servant doctrine" according to which the employer is not responsible for negligent act of one of its employees when that employee is working under direct supervision of another employer. 
In certain instances, honorable courts in India have held the hospitals liable in malpractice suits on the ground that persons who run hospitals are in law under the same duty as a doctor, i.e., when they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The courts observed that the hospitals must do it by the staff that they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs others to do his duties for him. 
A hospital 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. 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 - National Consumer Redressal Commission in the case of "Smt. Rekha Gupta versus Bombay Hospital Trust and Anr" [2003 (2) CPJ 160 (NCDRC)]. 
In case of government hospitals, it has been held that the State is vicariously liable for negligence of its doctors or staff or even primarily liable where there is a lack of proper equipment or staff. In a few cases, the Court has passed orders to the effect that the compensation paid to the complainant may be recovered from the government doctors whose negligence has been established. 
Running a hospital is a welfare activity undertaken by the Government but it is not an exclusive function or activity of the Government so as to be regarded as being in exercise of its sovereign power. Hence, the State would be vicariously liable for the damages that may become payable on account of the negligence of its doctors or other employees as per the Honorable Supreme Court verdict in "Achutrao and ors versus State of Maharashtra and Ors case [JT 1996(2) SC 664]." 
The State Government was held vicariously liable in the "Rajmal versus State of Rajasthan (AIR 1996 Raj. HC 80)", where the patient died of neurogenic shock following laparoscopic tubal ligation done at a primary health center. An enquiry committee constituted on the directions of the Rajasthan High Court found that the doctor was not negligent in conducting the operation, nor his competence, integrity, or efforts were doubted. Lack of adequate resuscitation facilities and trained staff was held responsible for the death. 
Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. Failure on the part of government hospitals to provide timely medical treatment to a person in need of such treatment is violation of his right to life guaranteed under Article 21 of the Indian Constitution (death of the patient occurring for not being admitted/given proper treatment for want of bed in a government hospital) "Paschim Banga Khet Mazdoor Samity and Ors versus State of West Bengal [1996 (4) SC 260]" as per the Honorable Supreme Court of India. 
Appointment of practitioners of alternative systems of medicine (Ayurveda/Unani/Sidha) or homeopaths in hospitals giving services in allopathy amounts to negligence. It is the duty of the hospital to provide properly qualified, skilled, and experienced doctors for treatment. All that is allowed to such practitioners is to make use of the various modern advances like radiology reports, laboratory investigations, etc. for the purposes of practicing in their own system (the Honorable Supreme Court of India). However, some States recognize the integrated courses or other qualifications as "sufficient qualification" for registration in the State Medical Register, and such registered practitioners can practice allopathy. In the States where no such privilege is available, such practitioners may prescribe or administer allopathic drugs for common ailments sold over the counter. Even then, the registration of homeopaths is restricted to Homeopathic Practitioners Act, 1959, and they are not allowed to practice allopathy. ,
To conclude, there is a rising trend of medical negligence suits across the world. Hospitals charged with negligence may be sued in the civil or criminal or consumer courts. To err is human and health care providers are no exceptions. However, awareness of the prevailing rules, proper maintenance of facilities and equipment, and proper management of staff, would help in minimizing these problems to some extent.
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