 Good evening and after I would say a lot of time we have been requesting Mr. Sham Padman and advocate in the High Court of Kerala to share his knowledge as those who have been connected with Beyond Law CLC they also know that Sham Padman also run a YouTube channel and that's why we initially got connected during the COVID 2019 just as Ram Kumar was also connecting point. Be that as it may being on a Sunday and that too in and around the Deshera when the people join us it gives you a sense of happiness that people are willing to learn the knowledge and someone from like Sham Padman who will be taking his session on the medical negligence under the Consumer Protection Act the critique because we keep keep on reading day in day out even day before yesterday there was a judgment on this medical negligence by Donald Trump. How this issues crept in what are the general defenses or what you can ensure while filing the claim petition in the Consumer Protection Act how it goes about it this is what will be the today's session and meanwhile one Dr. Belgrade's raise God is great dear Sham Padman so wishing you a speedy recovery thank you and I'm seeing a lot of followers who used to come during the COVID they have also logged in it shows that Sham carries his own following and that too and it's already sham in everywhere in India. What do you Sham? Thank you for making this Sham Sham Kenam. Thank you very much because it's wonderful to be back on this platform and the topic which I would like to address or rather share my thoughts on is medical negligence adjudication under the Consumer Protection Act 2019. Before I start off with the topic as such let us get certain clarifications regarding the new Consumer Protection Act I'll take less than five minutes regarding that. Number one is that there was a doubt expressed or doubts were abound that whether medical negligence or health service is covered and governed by the Consumer Protection Act 2019. As you all know the IMA versus VP Shanta case 1986 act there was in unequivocal language the Supreme Court said that as long as services are being rented by the health service or rather the medical men it is covered and governed by the Consumer Protection Act. No change has come in the new act as such the only doubt that was expressed was that in the initial draft even though medical service was specifically mentioned in the definition of service later it was not and it was said that it was some sort of an extrusion but if you go an impartial appreciation of the Consumer Protection Act and if you read IMA versus VP Shanta it would be very clear that services of any description it is not confined to any whether it's legal service whether it is engineering service whether it is any other service all services comes in unless and until it is specifically excluded if you just see the Consumer Protection Act section one itself that is section one four I believe one four save us otherwise expressly provided by the central government by notification this act shall apply to all goods and services and we have couple of couple of decisions that has come up from the Kerala High Court Bombay High Court and to a certain extent blessed by the Supreme Court because even though the actor was not addressed in extent show on merits but the challenge raised against these decisions were in past held that Consumer Protection Act 2019 is equally applicable to medical provision remains unchallenged so that is as far as coverage is concerned now the second aspect or the other aspects which may which we let to keep in mind both as a medical man as well as the legal man in assisting persons to get justice because lawyers does not just appear for patient party alone but also for doctors so in that perspective I would say that few things that everybody has to keep in mind is the change the drastic change that has been brought about in pecuniary jurisdiction and territorial jurisdiction under 2019 act I'm sure that this platform would have witnessed many a debate on this topic but to set things in perspective and to leave the foundation of my presentation I would just say that now it is as good as unlimited pecuniary jurisdiction why because the component of compensation has been taken away earlier it was the value of the good services and the compensation claim now the compensation claimed element has been excluded from the definition or when pecuniary jurisdictions to be reckoned and now it is only the amount paid as consideration for the services availed so to put it in a very simple example somebody I mean let us take medical science itself or doctors and hospitals case itself a patient walks into a hospital he undergoes a treatment he becomes a paraplegic or loses a limb or even his life the total consideration he would have paid would have been 50,000 1 lakh 5 lakh 10 lakh 20 lakhs whatever it is now as you know the pecuniary jurisdiction of the district forum is up to 50 lakhs it is interesting that the act has not been amended by way of a rule it is even the latest barrack if you take you'll find the earlier I mean the pecuniary jurisdiction might misguide persons but after that invoking that proviso to that specific provision the central government has notified that up to 50 lakhs is the pecuniary jurisdiction of the district forum and above 50 lakhs and up to 2 crores is the that of the state commission and above that of the national commission now coming back to the point if somebody avails a treatment and the services has been the amount paid as consideration is less than 50 lakhs he can approach the district commission irrespective of the fact that the compensation claims runs to crores or even above that so it is not the compensation component but it is only the value paid for the service now what is the difficulty that arises I mean the most important thing that comes to my mind regarding this aspect though it may look beneficial but in the long run because I am addressing this august enlightened audience you also think about it for filing an appeal the provision has not been diluted in any manner but only made stringent earlier it was 50 percent of the amount awarded from a district forum to now it's all commissions district commission to state commission it was either 50 percent of the money or the monetary component awarded or 25 000 whichever is less now that aspect has been taken away so it is 50 percent of whatever is awarded now just imagine a complaint is filed before the district forum the consideration paid is below 50 lakhs so I can approach the district commission it so happened that 1 crore 2 crore or 3 crore has been awarded I'm just placing an example then to file an appeal to get even it numbered let alone it being considered on merits what is required is to deposit of 50 percent of the amount you'll have to beg borough steal the amount and deposit it and there is no other way you can even maintain an appeal then alone comes the issue of admission and at that admission stage also there is another hurdle that is almost all state commissions in the country says that you'll have to deposit further amount as a precondition for stay of the order so it works out as if you deposit the entire amount so that is one aspect which might be counterproductive now the second aspect which we as the stakeholders in this one either for the doctor community or for the patient community should keep in mind is regarding territorial jurisdiction territorial jurisdiction has now been made at par with something like intellectual property legislation were in wherever the plaintiff is having the principal place of office etc likewise now in this new act the complainant can file the complaint where he is residing or working for gain the second aspect is very vague the first one of course if he has got a permanent place I'll just take one example I go to I mean I take treatment from Kashmir for that matter and I'm staying at Kanyakumari I can file a complaint in Kanyakumari stating that it is my place of residence and the act says that I can and the doctor or the hospital will have to come all the way to the district commission or if it's above p lax the consideration except the state commission for that matter in Tamil Nadu or for that matter if it's somewhere in Kerala or other places why I emphasize on this to this august assembly is because next time a patient walks in this applies to everybody even to lawyers don't don't think it's just against doctors or medical community if a client comes to me he avails some sort of I'm stationed in Kerala he's let us imagine he's from somewhere north northwest northeast I don't know whatever it is or some other part of the country he can go back the leisurely file here the the the complaint against me the I let go all the way to that place to defend it this may also be counter protected to a certain extent because before if this goes on like this and if it percolates to all level and everybody become conscious of this next time before I or a medical man for that matter I means we the lawyer community or any any service sector community would first insist on seeing the proof of address or rather where exactly your geographical positioning is and unless and until I fancy taking a vacation every now and then to that place I may deny service so this may result in denial of services as well so in this back and for that matter let us also be thankful to the apex code the Supreme Court is seized of the matter in proceedings that is pending before it and in one of the entry models that has been passed it has even mentioned it was even mentioned that there was no proper legislative impact study done and whatever study that was done was during the covid period and that does not make any sense for that matter now let alone all these things let us come to our topic I mean I just wanted this to be said as a introduction because whoever or whatever side we are on these things will have to be kept in mind and when we think of enhancing the performance of the justice dispensation machinery as stakeholders each and every one of us has got a responsibility to proactively participate and see to that requisite changes or or or amendments or for that matter whatever I mean even interpretations can be had regarding this now coming to the the topic that has been assigned to me let us first understand the fact that health or a person's right to have access to health or emergency medicine has been read now read into now means during the course of different decisions have been read into the fundamental rights by incorporating it as a facet of life which is contemplated under article 21 of the constitution the few decisions which might throw light onto it is the earliest one I believe is 1984 Supreme Court 802 it's also reported in 1984 3 SCC 161 that is Bandhu Mukti Morcha versus Union of India and others were in this right to live with human dignity enshrined in article 21 derives its life breath from the directive principles of state policy and particularly clauses E and F of article 39 and articles 41 and 42 and at the least therefore it must include protection of the health and strength of workers men and women and of the tender age children against abuse opportunities of facilities etc etc this was followed in 1989 by Paraman and Katara versus Union of India and others that is 1989 volume 4 SCC 286 were in every citizen brought for treatment should instantaneously be given medical aid to preserve life and therefore and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death and in the event of breach of such direction apart from any action any action that may be taken for negligence appropriate compensation should be admissible that was a doctrine of the golden hour an accident victim who reaches the hospital if he gets the treatment within that short span of time there is always a possibility that his life could be saved but if we are to think of the legal intricacies of giving evidence etc etc and if it's delayed so and you cannot even take up if you are running a hospital that I don't have an emergency unit etc you cannot because the Supreme Court made it a mandate that every citizen in this country has got a right to get emergency treatment and thereafter in Pashim Banga K. Masjid Samadhi versus state of West Bengal that is 1996 volume 4 SCC 37 the court declared that the right to life enshrined in the Indian constitution and article 21 imposes an obligation on the state to safeguard the right to life of every person and that preservation of human life is of paramount importance this obligation on the state stands irrespective of constraints in financial resources the court stated the denial of timely medical treatment necessary to preserve human life in government owned hospitals is a violation of this right later there are many decisions I thought I'll just deal with the decisions that set the trend now regarding medical negligence there is one interesting observation made by the High Court of Kerala in Dr. T. T. Thomas versus Srimati Alissa and others that is reported in AAR 1987 Kerala 52 I'll just read that small paragraph it is eliminating devaluation of standards in professional ethics is a dangerous trend its proliferation in medical profession is more kilometers than in any other professional or occupational areas there can be few if any provisions other than that of medicine about which it is possible to fashion a television series entitled your life in their hands it was in fact a reproduction from low and medical ethics by Mason and McCall Smith failure to make a proper diagnosis sometimes may be the consequence of human error but when diagnosis is correctly made the imperative duty of the medical man to take adequate and prompt curative steps need not be overemphasized for any inertia on his side is at his risk as to all cause and consequences if the allegations in the case are true this would fall within the amplitude of the above proposition we all know that mistakes errors and defaults are prone to occur in all profession medical promotion is no exception but unlike other professions the consequence of such medical default or would be more drastic and deadly as invariably a human life would be at stake either it might be life or limb the issue gets more complicated as medical science is not an exact science and it is accepted starting from decisions like side away volume etc that medical science has not been and is not an exact science in spite of the best care caution and attention on the part of the treating physician there is always a possibility that something may go wrong for no fault of this it's very easy to understand it is like saying that I may not be an I may not be allergic to a particular drug the symptoms I exhibit and XY or said exhibit may be the same but while treating with that drug something can happen it need not necessarily because of any negligence that is what the Supreme Court said and even the Kerala High Court and other High Court said that it's not as something unless the man with the smoking gun syndrome something has gone wrong so somebody should be held fault with so if it happens in an institutional thing then invariably the hospital will be proceeded against and then another aspect which we as the stakeholders of this very important topic should keep in mind is that there is no dedicated health law in the country the different provisions whether it is if you are proceeding against the doctors or the medical man either under the law of thoughts or criminal jurisprudence or anything else is scattered in different for example if you take consent it's very very I mean what is the age of consent or what is the definition of negligence criminal negligence there is no distinction made in IPC regarding partial negligence and occupational negligence but the Supreme Court of course in Jacob Matthew case and other decision said that this has to be seen in two different ways and you cannot equate one with the other and unless and until there is an element of gross negligence which is not there in the statute gross negligence you cannot proceed against a medical man for medical malpractice under the criminal law now what is negligence if if we if we take the historical perspective we have the earliest one as seen from the code of Hammurabi that is the king of Babylon it is stated if the doctor has treated a gentleman with lacy of bronze and has caused a gentleman to die or has opened an abscess of the eye for a gentleman with bronze lacy and has caused the loss of gentleman's eye one shall cut off his hands but very of course but that was the way in which justice was dispensed in in those times now the recent trends it says that the way in which medical negligence is perceived is that in the case of medical men negligence means failure to act by the standards of reasonably competed medical men at that time there may be one or more perfectly proper standards and if conforms to one of these proper standards then he is not negligence I shall come to Bolehm and Bolito later now historical evolution of medical negligence across the world then you will say that from the days of Hammurabi the Babylonian times it progressed to more more what do you call it's not a common calling doctrine that is persons who practice common calling meaning probably a skill provision to act as would any reasonable competent person practicing under like conditions or be liable for an action of trespass of case the words negligence and malpractice was strangers to 14th century common law medieval physicians were made answerable for malpractice and this liability grew from the basic concept of negligence conceptually therefore medical malpractice actions were from their earliest origin no different from ordinary negligence suits the term malpractice did not arise until the early 19th century then based on common calling doctrine that is the reign of Henry 4 which I don't want to dilate now then medical negligence jurisprudence based on professional custom came around then medical negligence jurisprudence based on local rule that is locality rule since 19th century common law provides that a physician's duty is not measured by the ordinary rules of reasonable reasonableness but rather by professional custom now all these things have been later articulated we have cases starting from 1969 or rather we'll say that from Boilum in Boilum what the case says that in that the facts of the case are this electroconvulsive therapy was given that too without using muscle relaxant there were two bodies of opinion one said that it has to be given the other said it need not be given this patient was not given he sustained fractures and some other injury then the court said the the apex court of UK said that following one reasonable opinion body of opinion cannot be said to be negligence just because there is another body of opinion possible now the elements of negligence can be articulated into four number one is duty of care so if you want to establish a case of professional negligence and these four ingredients will have to be proved and established number one is duty of care must have there must have there must be a legal obligation to provide care number two is breach of the duty there should be some actor omission which amounts to breach then what the courts are concerned is not with the consequence but with the causation in the chain of causation this actor omission should have been the main cause for the damage cost and finally it is damaged patient must suffer harm or injury as a result of the breach if you have to establish this before a court of law what is required is expert evidence or literature covering the field which is accepted peer reviewed articles or standard textbooks which would show that the act is not correct so to put it very simply I would say that breach of duty of care resulting in injury or damage is negligence so what the courts will look into is that did the specific doctor act in such a manner which a reasonable and prudent doctor in the given circumstances would not have acted or omitted to do something which a reasonable and prudent doctor in the given circumstances would have done so it's a question of act or omission so in a court of law if one has to succeed or one has to defend either way what has to be shown by the patient party is that there was an act or omission on the part of the treating doctor or the hospital which a reasonable and prudent doctor in the given circumstances would do or would not do likewise the natural corollary or or or the defense possible for the medical man is that he can say that in spite of the best care caution and attention on the part on his part something went wrong and he cannot be found fault with because he has subscribed to the universally accepted standard medical protocol and also there was no act or omission on his part these are the two opposing weighing factors which you may have to establish in a court of law depending on upon which side you are now how do we establish this number one is documentation as far as a medical man is concerned proper contemporaneous document is highly necessary and unless and until you have this proper documentation it is just like saying that no documentation no defense poor documentation poor defense good documentation good defense it is reiterated I shall come to the decisions and authorities later now what we can prove and establish in a court of law is by reducing expert evidence the expert cannot just stop on air he has to base his findings not only on his professional and expertise knowledge in that field but it has to be based on something that the concerned the accused or the opposite party doctor or hospital would have done that is only possible if documentation is there so unless and until there is proper documentation no defense proper defense is possible likewise unless and until you can show from the documents that there was an act or omission on the part of the concerned doctor which amounts to negligence a complainant cannot succeed also it has been reiterated many a times that the court cannot impose or superimpose its wisdom on on these aspects because these are all areas which requires special expertise skill and as long as the medical science is not an exact science and human reaction to different medications is not uniform it depends from person to person and in the same person depending upon his immunological compromise status or any other comorbidities it may it may change from time to time so all these factors has to be taken into consideration and when I come to the different decisions and authorities that is I mean including those of the reason ones you will understand why this assumes importance now it has been emphasized that no court of law can base its decision as far as professional negligence is concerned on surmises conjunctures or for that matter assumptions for one thing one has to keep in mind one important factor a decision against a medical man and for that matter any any any any any any professional of negligence or malpractice amounts to capital punishment it is professional death sentence as far as that person is concerned so like in the ordinary law we say that it is only in the rarest of the rare cases that such a decision will be rendered or returned likewise unless and until there is proper empirical evidence suggesting that the consequence that has been complained of was on account of or an act or omission which was the causation for it to put it very simply unless and until it is specifically proved and established that such and such specific act or omission contributed or resulted in this consequence one may not succeed and likewise unless and until the opposite party there there has been a lot of uncry regarding what exactly is the burden of proof on us of proof regarding medical negligence of course like any other case the initial burden is always on the complainant we need not go to section 101 102 etc of the evidence act but the initial burden to discharge his burden he'll have to prove that such and such things have happened and such and such things would not have happened had there been proper care there he can also take a take request to the principles of raise ifsa locator which says that the thing speaks for itself for example if a mob is left behind or or or a cotton goes or even we have couple of cases in kerala were in certain instruments were left behind the allegation is that it is to be decided so these things are so glaring so once these things are so glaring there is no need for any further discharge of burden on the part of the complainant then the honest completely shifts on to the other party then it is for the hospital or the concerned doctor to prove and establish by reducing including expert evidence that there was absolutely no negligence on the part it is in spite of the best care caution and attention on the part that these things have happened and that they have treated the patient as per the universally accepted standard medical protocol so that is as far as the concept of or rather how to start or how how the honest or burden is concerned now let us assume that it is in a death case so in death cases the importance of autopsy or for that matter post mortem has been emphasized in very many decisions one decision which I can directly lay my hand on is that of the kerala high court were in it is mohammed tarik ak and others versus savera hospital private limited and others 2019 vol 5 khc 88 to fasten liability on a medical practitioner the court has to ascertain whether there was intentional actor omission or failure on his side in administering treatment to one's patient if only there was breach or failure to follow the practice acceptable on the part of the medical professional and follow the and reasonable care attention and requisite skill expected from an expert were not provided to save a patient from acute emergency negligence can be attributed against a doctor a doctor who is treating a patient may only think to relieve him her from his suffering and the well-being of the patient will be the only aim of the doctor and normally with all care and skill the doctor will try their level best to save the patient normally a doctor will be taking the effort and risk even in cases where hard and risk factors are involved with the ultimate aim to save the patient and he will be satisfied only if the best treatment is provided to the patient and regarding autopsy a post mortem examination autopsy is a surgical procedure conducted by the experts in the field which consists of a thorough examination of a cops by dissection of each and every part to determine the cause and manner of death and to evaluate and find out the disease or injuries which resulted in the death of the person when ultimately death occurs a post mortem examination will help the investigation of a crime to find out the cause of death to rule out the various possibilities of death saying all that in a civil suit in this it is in fact a regular first appeal negligence alleged against where treatment was done however death of patient occurring in another hospital absence of post mortem examination and report health is fragile in the absence of an expert opinion regarding the cause of death it is not possible to conclude that death of disease was just because there was no proper diagnosis or proper treatment received just because there was from the hospital against the negligence as alleged now errors in judgment by itself may not amount to negligence there is a ketina of decisions and the exceptions are also there and what is the standard of care expected is that of a average or ordinary practitioner not of the highest nor any lower and also what is expected from and what is to be evaluated by the court and what will be evaluated by the court is the scientific knowledge equipment the treatment methodology methodology etc that were available as on the date of the alleged incident you may not be justified in nobody will be justified in contending that later there were new developments etc which the doctor should have taken into account etc no what is the practice as on that day and one word regarding consent also the Samira coley case which I shall place the decisions to you it has been specifically stated that consent is important so as far as the patient party is concerned unless and until the patient or the patient parties made aware of the possible pros and cons of the proposed procedure and the alternatives of the procedure there is always a possibility that you may not be you may be held liable for the medical man can be held liable for negligence now there is one more thing which is known as cross-pathy or cross medication you may have learned that is very interesting where it is stated in Poonam Verma versus Ashwin Patel a year 1996 Supreme Court to triple one a person who does not have knowledge of a particular system of medicine but practices in that system is a quack and a mere pretender to medical knowledge or to put it differently differently a charlatan the the court held that anatomy of persons may be the same but the pharmacology is different so unless and until you study that particular pharmacology you are not supposed to prescribe any medicine prescribing medicines of another pharmacology gives a cause of gives rise to a cause of action to the patient party and a difficult what you call situation for the concerned doctor this was followed in I'd say that Martin de Souza's case there is a wrong perception that Martin de Souza was completely overruled in Nikhil super speciality no only that element where it was said that Jacob Matthew case was interpreted in such a manner that even in civil cases peer review or a review by a expert body is necessary that aspect alone was overruled the otherwise the judgment stands it a professional may be held liable for negligence on the ground that he did not possess of the requisite skill which he professed to have that's a doctor who has qualification in our way the Qnani or homo apathic medicine will be liable if he prescribes allopathic treatment so let us see the basic principles which we have just seen number one is the legal mandate of the country or any civilized jurisdiction regarding medical malpractice is care and not cure no person will be held liable just because he is unable to cure a patient because cure is not something completely within the hands of the concerned medical man so what is to be proved and established on either side is that either there was or there was no reasonable care caution and attention and the universally accepted standard medical protocol was either followed or not followed but depending upon the factual matrix and the evidence produced and the expert opinion that would be called for by the court a decision of medical malpractice or rather medical negligence will be rented now let us see step by step how a medical malpractice action can be or rather medical negligence action can be initiated as well as defended number one is sending of notice the supreme court has held in i would say couple of decisions that in the country especially in india it is a uphill task for the complainant or the plaintiff or the patient party to institute sustain and succeed in a medical malpractice action because of different reasons including financial implications lack of awareness non-availability of experts and there is a possibility that one medical man may not necessarily speak against another but that i found in my professional practice not to be not fully true because no medical man or a professional worth his name would state anything against accepted scientific principles especially when there is always a possibility of it being contradicted by medical authorities or by another expert so usually it does not happen but these are the things that has been taken note of now as i stated earlier it all revolves around the availability and non-availability of records so as far as the patient party who initiate the complaint it is imperative that he obtains the documents and for that matter it is very interesting to note that earlier even though it was thought that medical records were the property of the hospital it has been continuously held by the apex court and the different high courts and other courts that it is not there is no lien on medical records likewise lawyers also does not have any lien on what you call the case records for unpaid bills if somebody does not pay you a bill whether it's a medical man or a lawyer the only remedy is to sue the other person for recovery of money and going by the present scenario wait for the money to be realized by your son grandson or great grandson for that matter not otherwise you cannot withhold the the case sheet or for that matter case records it has been settled it's a settled position and moreover it is also necessary and it is a duty cast on the hospital that once a request is made by the patient for his case records it has to be made available to him at the shortest possible time not more than 72 hours it has to be given so getting medical records is in that manner is possible and another way in which you may get the medical records or medical records could be compulsorily shared is if you are initiating a police complaint if you say that there is gross negligence so for referring the matter to the peer committee as envisaged by the jacob matthew case the police will have to take into custody they let to cease the concerned medical records to be forwarded to the district medical officer or the concerned authority who constitutes the local body the expert panel for evaluation and to give advice to the investigating officer whether was gross negligence that is another way of ensuring that the records are made available to you and the possibility of any manipulation the records could be avoided and the regarding manipulation of records you can rest assured because nowadays it is very rare because almost all the hospitals with their name have got different accreditations and there are periodic audits etc and EMR is almost implemented electronic medical records any change or any manipulation done in that can be traced out so nowadays even though it is happening I am not very sure about that but the possibility of manipulation is or tampering or doctoring the records is very low so that is one way of getting records once you get the records instead of rushing to the court because many a medical legal case is dismissed or even dismissed with cause because there is no proper cause of action and there is no element of negligence except for the perception of being wrong or the grievance individual grievance of the concerned patient party there is I would say no way unless and until you are able to get proper instructions or rather opinion from anybody who is learning this field or you yourself doing your homework once you get the medical records it's better not to rush to the court even to a consumer fora but once you get all these things and you are sure that you feel that there is a cause for to be agitated before the court it has to be proceeded with then there are two options it is not mandatory that you should be sending notice of course government institutions etc section 80 CPC is there I am not on that but as far as consumer protection is concerned there is no mandate that a complaint should be preceded by a notice but it is always advisable that a notice be sent so that we can get the version of the hospital or the medical man also and likewise in the defense also the medical man also gets an opportunity if it's a genuine case he can explore the possibility of a settlement because the new consumer protection act gives much weightage to mediation and mediation settlements of course there are some restrictions in the rule regarding that institutionalized mediation may not be possible for some medical negligence which results in death etc but that's all when you go to the consumer court here we are not reached the consumer court so it is always possible that a opportunity a window can be open for mutual understanding and a possibility of an amicable settlement end of the day whether it is by litigation or otherwise what as far as consumer protection act is concerned it is only the compensation component that is relevant it's only the criminal prosecution were in a doctor or the accused will be punished then we can file once all the details are there we can file the consumer complaint with all the documents that we have and likewise in defense the doctor also can request the patient party to submit the documents in the custody because the patient would have taken further treatment elsewhere and saying that it was on account of the earlier treatment then the latter treatment or any other treatment records which might be in the position of the complainant or the patient party could be called for so that a comprehensive reply can be given and once the comprehensive reply is received the patient party will be able to proceed further on that then while filing complaint it has been asserted in very many decisions that the specific act or omission of negligence has to be which which is claimed to be negligence has to be stated because then and then alone a proper adjudication is possible I have seen couple of decisions were in it has been said that only because the specific instances of negligence has not been narrated the complaint is liable to be dismissed because from the common evidence nothing could be brought out now it comes to the evidence stage in the evidence stage the complainant generally is examined once that is done it is equally important for both the parties to reduce expert opinion or evidence either in the form of an expert evidence in the box or by authoritative textbooks or decisions covering that to prove and establish the different stance once that is done the final arguments will be heard and of course as all of you are available a decision will be rented and regarding compensation component I'll say one of the cases that is the highest compensation not just highest one of the high compensation that was given was Kunal Sahas case that is 2014 one SCC 384 you may have a reference to that while computing the compensation component and in that interest act 1978 was interpreted and it was stated specifically found that interest from the date of complaint has to be paid and not from the date when the decision was rendered because a special and specific portion of the interest act 1978 mandate so that is Kunal Sahas case 2014 one SCC 384 you may also refer to we Krishna Kumar versus state of Tamil Nadu and others that is AIR 2015 Supreme Court 836 if you want the CPJ volume 3 2015 CPJ 1515 Supreme Court or SCC for that matter 2015 9 SCC 388 the Supreme Court has reasserted or reiterated that payment of compensation not only just in medical legal cases but in any case that comes before a consumer fora is not just to recompense the complainant but also to bring about a qualitative change in the attitude of the service provider so to it is too prompt whatever expenses whatever loss damage injury that has been sustained by the patient party will have to be recompensed and also a further compensation just to make sure that such incidents may not recur in future and to bring about a qualitative change in the attitude of the service provider execution then comes execution once once you get a judgment in a favor execution now 72 71 and 72 unlike the confusion we had regarding 25 and 27 of the 1986 now the order 21 the provision relating execution as far as CPJ is concerned has now been incorporated in our consumer protection act so that can also be proceeded with now let us see couple of decisions and now when I refer to the decisions what I want you to keep in mind and my request is that the ratio of these decisions can be utilized by both parties by the patient party as well as by the doctor community the medical community why because fact situation determines the application of this legal proposition and before that there was one another doubt that has been expressed by one of the participants that is a patient sustains injury in a motor accident and later he is treated in a hospital he claims he gets a claim under the motor accidents claims tribunal will it oust or will it in any way effect the the claim made before the consumer protection act for medical negligence there you may kindly note one decision which I could lay my hand on volume 3 2006 CPJ one of the national commission Gidu Sapra and others versus doctor BL Kapoor Memorial Hospital where it was held claim before motor accidents claims tribunal pending present claim not based on accident but on alleged negligence of treating hospital and doctors two different causes of action for above set claims cause of action before MACT related to accident arising out of negligence of driver of vehicle that before consumer fora for deficiency in rendering service or treatment by hospital and doctors complain for such deficiency is maintainable so it may not be a defense saying that you had already approached the motor accidents claims tribunal and you have got a requisite relief likewise another doubt that has been expressed is that whether free service given from hospitals is it covered of course IMA versus VP Shanda is a complete answer and also there are a couple of decisions which says that unless and until the hospital or the institution or that individual treats everybody free of charge if we treat somebody I mean charges some some patients and only treat some of free even the free patients are consumers but regarding government hospitals if it's completely free of charge you can you may refer to 2015 for CPJ 619 free service from government hospital and regarding ESI hospitals you can refer to the Supreme Court Kishore Lyle versus ESI Corporation that is volume to 2007 CPJ 25 Supreme Court corresponding citation is AAR 2007 Supreme Court 1819 and also 2007 for SCC 579 members of the scheme and our family consumers it is not gratiges then in that decision there is one more very important aspect which says that cause of negligence arises only when damage occurs claimant has to satisfy the three ingredients before claiming damage for medical negligence that is regarding free services etc rendered by government hospital you may also refer to volume one latest one volume one 2022 CPJ 69 Supreme Court Nivedita Singh versus Asha Bharati and others volume one 2022 CPJ 69 Supreme Court Warren a reading of the above para shows that a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service is rendered by the hospital does not fall within the ambit of 21 0 that's 1986 act of the act being free of charge the same service cannot be treated as service under section 21 0 for the reason that it has been rendered by medical officer in the hospital who received salary for the employment in the hospital it was this concluded that the services rendered by employee medical officer to such a person whom such a person would therefore continue to be service rendered free of charge and would be outside the purview of section 21 0 of the act in view thereof we do not find any merits in the present appeal and the same is dismissed that is the one of the latest Supreme Court ruling in 2023 there is one let me just see one another later ruling is volume 2 2023 CPJ 327 National Commission Manish Kumar versus all India Institute of Medical Sciences and others that also may be looked into now regarding expert evidence expert evidence is necessary but one judgment which took a different view to but because of the facts and circumstances may also be kept in mind that is Maharaja Agrasen hospital and others versus master Rishabh Shree and Shrin and others volume one 2020 CPJ 3 Supreme Court weren't was held court is not bound by evidence of expert court should derive its own conclusions after carefully shifting through medical records standard protocol followed etc and when the negligence is so palpably visible or rather it is on the face of it evident there is no need for any further expert evidence in a specific case were unreasonableness in professional contact has been proven with regard to circumstances of that case a professional cannot escape liability for medical negligence merely relying on body of professional opinion that is volume 3 2019 CPJ 1 Supreme Court Arun Kumar Manglik versus Chireyu Health and Medicare private limited and others and if there is an unreasonable decision that also can be looked into by the court and decision rented that is volume 2 2019 CPJ 1 24 Supreme Court Nand Kishore Prasad versus Dr. Mohib Hamidi and others now let us see why this medical malpractice actions or medical jurisprudence is not developing in our country or rather we find it unsurmountable number one is lack of awareness many people in the country are not aware of the rights in cases of medical negligence and may not know how to take action legal action then of course high cost of legal proceedings even though we may say that consumer protection is cost effective etc but once you start the litigation you know that it entails expenses then lengthy legal process so many many persons are dissuaded from then limited access to medical records in spite of all this legal mandates it's next to impossible at times to get the relevant medical records treatment records then insufficient evidence because we go by the grievance and not by empirical evidence as far as the patient part is concerned then of course there is lack of support also is there now let us see some of the recent decisions and before that let us put things in perspective by looking into the difficult situation in which medical men are placed in Mrs. Shandab and Muljibai Patel and others versus Breach Candy Hospital and research center that is Vol. 1 2005 CPJ-10 the National Commission held in a high-risk case accidental eventuality cannot always be controlled hence conclusion of deficiency in service cannot be drawn likewise the words of Lord Denning in Roe versus Woolley versus the Roe and Woolley versus the Ministry of Health and other 1954 Vol. 2 All England reporter 131 which has been reproduced in many of our judgments Supreme Court inclusive every surgical operation is an is attended by risk we are not we cannot take the benefits without taking the risk every advanced in technique is also attended by risk doctors like the rest of us have to learn by experience and experience often teaches in a hard way few of the recent decisions which one has to look into if we are to move ahead in this specialized field would be Dr. Mrs. Chandrarani Akkori and others versus Dr. M. A. Meethu Sethupati and others that is Vol. 2 2022 CPJ-51 rendered by the apex court supreme court Vol. 2 2022 CPJ-51 wherein the death of the patient was taken up to the apex court the court said that has to be kept in mind because a decision has to be rendered from the head and not from the heart the supreme court said in these words we realize the pain of losing her husband and the trauma she has suffered but that cannot translate into a legal remedy even death of a patient cannot on the face of it be considered to be medical negligence in the same vein Bombay Hospital and Medical Research Center versus Asha Jay Swal and others Vol. 1 2022 CPJ-3 Supreme Court unless and until there is expert evidence or medical records which shows negligence a decision cannot be rendered against the medical man the supreme court said sufficient material or medical evidence should be available before adjudicating authority to arrive at conclusion that death is due to medical negligence here the race Ipsa Locketer principle was analyzed and the Supreme Court said thus for the application of the maxim Ray Ipsa Locketer no less important a requirement is that the rest must not only bespeak negligence but pin it on the defendant it is not just by showing that something which ordinarily would not have happened has happened hence negligence has to be in front of negligence has to be drawn the supreme court said it is not it should not only bespeak negligence but it should pinpoint on the defendant and likewise the national commission has taken note of the fact that infection is a risk of all surgeries just because there is infection unless and until it could be shown that it was on account of any actor omission on the part of the hospital doctor or the staff of the hospital that the infection happened just because infection happened it cannot be said that it all depends upon the patient so that is vol. 2 2022 CPJ 509 national commission upendra kumar versus nandip I research and research center and others likewise the supreme court in Vinod Jain versus Sandoka Durilapji Memorial Hospital and others that is AIR 2019 Supreme Court 1143 a doctor could not be said to be negligent if he was acting in accordance with a practice accepted as proper by a reasonable body of medical man in another case when the court said that we have sympathy for the appellan but sympathy cannot translate into legal remedy it is interesting to note that a parallel has been drawn in Martin de Souza case which has been reproduced continuously in the subsequent judgments I'll just read that relevant portion it's very interesting and illuminating in paragraph 42 there is a tendency to blame the doctor things have gone wrong and therefore somebody must be punished a lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions we are put to task and an example is drawn a parallel is drawn saying that just because a lawyer loses his case or a doctor loses a patient that does not by itself if so facto indicate negligence unless and until it is able to be shown with empirical evidence expert evidence and legal principles which are applicable that it was on account of any actor omission on the part of that particular doctor that this which form part of the causation which resulted in the consequence I see Dr. Kanthikar sir also here and I was just referring to one of your decisions right now wherein you had put it in a very very interesting manner that that infection is always a it's possible and that by itself cannot be taken as an indication of negligence thank you sir and there is regarding consent after the the initial judgment we also have SK Junjanwala versus Dr. Dhanvanti Kumar and another that is Vol. 2 2019 CPJ 41 we need not no need for separate consent for substitute surgery suffering of ailment by patient after surgery is one thing whereas suffering of any such ailment as a result of improper performance of surgery and that too with degree of negligence on the part of doctor is another thing so these are the recent developments and the way in which the justice dispensation machinery is is viewing this particular aspect so when I say or when I asked how a medical legal action can be initiated and continued I would say that these principles may be kept in mind in the same vein I will also say that these principles also apply as far as defense is concerned and to conclude I would say few would agree or disagree rather that delinquency like in any other profession need also to be dealt with sternly in the field of medicine the reasons are not far away we require a judicial intervention because that is the only place wherein an agreed party just imagine why should the doctors or the medical men and for that matter if somebody is suing me as a lawyer why should I be agreed because if I have a problem the most civilized way and the only way available and the Indian constitution is to approach or to take request to legal remedies so once a person has a genuine grievance it is only natural that he takes request to legal remedies so if there is proper documentation if there is proper expert evidence in the matter and if you are subscribed to the universally accepted standard medical protocol and there was no actor omission which a reasonable and prudent doctor in the given circumstances would or would not have done there is no need to worry it's only litigation is part and parcel of the profession any profession because it is the only way in which a dispute can be resolved what else can do we have any other alternative and in Kusum Sharma and others versus Batra Hospital Medical Research that is 2010 3 SCC 2010 volume 3 SCC 480 the law of negligence has to be applied according to facts and circumstances of individual case no one can ignore that medicine is an evolving science I emphasis it again because that will be my concluding remark 2010 3 SCC 480 Kusum Sharma and others versus Batra Hospital Batra Hospital and Medical Research the law of negligence has to be applied according to facts and circumstances of individual case no one can ignore that medicine is an evolving science and there is no precise outcome of effect for every person the operations involves certain calculated risk which cannot be denied because of complication in the operation if some risk is done the doctors cannot be held liable for negligence as the patient himself has consented to the risk involved in the operation so I would conclude my presentation and open up for discussions if any by saying that as far as India is concerned we got a well-balanced administration of justice dispensation machinery as far as medical negligence or malpractice actions are concerned the decisions which have contempt the medical man who has erred beyond the scope of permissibility under law is also the whereas sufficient protection has been and is being afforded to those persons who acted bona fide and in spite of that something has gone wrong just because something has gone wrong nobody can hold just like in what is the suicide has been said that no lawyer can be held liable just because he lost the case he loses the case because he cannot win it there is always a third party element coming in for us it is the judge for them it is the I mean God and as well as the comorbidities or the specific characteristics of that particular patient thank you for the patient here thank you thank you I'm just checking you out Sandeep wanted to ask something Sandeep sir you are not audible you may have to unmute oh that's fine now actually today I was just checking it out they changed some settings yeah yeah very good evening sir first of all a lot of thanks for giving this wonderful talk I would just like to you know ask question in the sense from the very beginning you have started with the Bholam case and you have discussed four points where you discussed some error should be there and to prove that error some omission or commission that needs to be proved and accordingly the case will be you know weighed and it will be helpful in the concluding the remarks but my point is that sir because patients they are not I'm talking about the patient perspective not from the doctor perspective my point is that that patients they're not well versed with the medical terminology and it is very likely that it is difficult to prove cases where some omission or commission has not been done or done and it will be difficult and because this and second point I would like to say because you have said that in case of Jacob Matthews this your local area administrator will have to induce some the first they will have to see whether some error has been commissioned or not but in a if you take I'm not talking about the metros if you take the cases on the district level there are not the expert evidences are there so the benefit of doubt is going giving to the doctors only so in such circumstances what would be the best from the patient perspective how he will deal although the documentation they are available with the hospitals only but what else documentation will be required and how it will be helpful for a patient to fight a good case sir I could I can only answer in this manner because rights and responsibilities Western everybody so whether you are the complainant or the opposite party there are certain obligations or certain responsibilities of assisting the code to come to a correct conclusion so the liability or the responsibility to discharge the initial burden scholarly faults on the complainant but it can be discharged in very many ways including like I said there are certain legal principles which could be utilized by saying that the thing speaks for itself or you can say that it's so glaring that nothing need be done I walked into the hospital now I am in a persistent for my the patient is in a persistent vegetative state all those things it is for the doctor and the hospital to explain but when once you make an allegation that there was a negligence on the part of a doctor like I said earlier it is akin to asking seeking capital punishment you're asking for professional death sentence of that party he would have practiced for 30 40 years built up his carrier build up his reputation and now on account of this specific allegation one cannot justify in requesting that for me the evidence act or for that I mean the way in which adjudication has to be diluted there you will have to educate yourself a responsibility is cast I am ignorant I will always remain ignorant cannot be heard it has to be in such a manner that you got a grievance there are avenues there are bodies which will assist you and there are doctors who feel that if something has gone that doctor is not speaking against any other doctor is only speaking for the medical profession there are and these persons these experts will not in my experience I have found that 90 percent of these persons 10 percent of course will always be there will never speak against the truth or the basic scientific data because they risk their reputation they put their reputation at stake when they enter the box once they give an opinion it can always be evaluated it can be contradicted and it can be supported or negated by further evidence by way of textbooks or by way of other evidence so that can be done and of course they speak a different language altogether just imagine a doctor coming to the hospital I mean a doctor coming to the court we speak an entirely different language we say in execution delivery with police aid will a doctor understand that so difficulties are there on both sides it has to be found we let educate ourselves and we'll have to learn from I mean something the court is also very compassionate as far as reducing of evidence that compassion cannot translate itself into a verdict because a decision has to come from the heart from the head and not from the heart so I am sure that any properly instituted medical negligence case if there is a negligence on the part I'm sure that I think that sir is also that he has rendered decisions either way in the national commission and in that it all depends upon the facts and circumstances of the matter because sir can you just unmute Dr. Kanthikas you'll have to unmute sir please unmute hi sir I don't get some can I add something for sure please sir the query was the patient cannot prove because he is handicapped by not getting the expert opinion that is the that is the notion yes because if the patient is not getting in the Jacob Matthew it is clearly said the case to be referred to the district authority or any if it is a big city that will be referred to district authority or a health department or medical college yes now even then the if the patient is unable to get the opinion the bench can decide when the case is on the adjudication the bench can decide and bench will request a bench will request the constitution of expert board from the some medical college in that case the patient or the complainant should should apply or request the code or the bench send the matter for the opinion because he certainly he no doctor will give opinion in the other cases few doctors few experts are giving but for the fair justice if the bench feels bench will send because because in the Nikhil super speciality it has clearly defined no every case need not be referred for the expert opinion the bench will take the decision and it will send sir in Nikhil super speciality case it only clarified Martin de Souza by saying that it is not necessary for instituting but yes yes prohibition in sending yes yes so very nice after a long time after last time we met in Bangalore we are not met we'll meet sir yes okay thank you sir yes Vikas yeah good evening sir my question is regarding the number rising number of segerian operations in the country and the future of medical jurisprudence regarding this yes sir i can straight away answer of course the medical men are also here the problem which we had a study on a different platform all together were in this rising number of cesarean need not necessarily because of the recommendation of the medical fraternity but by the patient party or the the pregnant woman who does not want to undergo the agony of a normal delivery they at times they request because we have birthing boutiques now just imagine how can they come unless and until there is demand for it of course there might be stray incidents were in unnecessary cesarean operation has been insisted and done but that can be i mean unless and until there is a fetal distress or a cord around the neck etc there are certain indications were in that the life of the fetus is compromised it requires intervention or there will be certain situations were in the mother also have certain conditions which may not be what you call in conformity in having a regular labor it is being done but like you said if it has been unnecessarily done it is a act which a reasonable and prudent doctor would not have done in the given circumstance and so squarely falling within the definition of deficiency in service and negligence which can be taken to task but a concerted movement regarding that i'm not very sure whether it is possible because there is no empirical data which says that there is a what you call concerted move in substituting cesarean surgery for regular surgeries i'm not aware of that hello good evening everybody am i audible i'm in Dubai Dubai Dubai my question is regarding the infertility that is IVF procedures as india is having a lot of infertility issues so many of the aged and unaged i mean you know old age people also go for the infertility procedures so what is your take on that if there is no conceiving of the baby and they have to pay loan they take loan on the respective procedures so do you have some insight on that thank you thank you for putting that question we have one or two decisions printed we're in no cure means negligence or no result means negligence is not something that can be applied in medical science so IVF etc you run the risk and what certain protocols and procedures in place how it is to be done when it is to be done who all can undergo what all should be the formal we got strict procedures applicable if the concerned institution has followed all the procedures that has been established by law and no element of evidence negligence could be brought out in implementation or in the procedure that has been done then just because the party did not conceive or did not give the required or resultant result will not be an indication of any negligence and you may not be able to proceed but otherwise if you are able to show that some actor omission on that part or if there was any failure to follow the procedures and protocols which are in place in India we have got strict procedures who all can undergo what all can undergo and IVF all those things it is covered and governed by strict rules if that is being followed and no element of negligence otherwise could be attributed merely a fact that the patient did not get the result or there was no the patient did not conceive may not be available for you to initiate an action against the hospital or the doctor but rest assured that there are monitoring agencies authorities they are looking into it and any aberration or any sort of inadequacy or any any sort of violation is taken strict action against. Yeah thank you Shyam and thank you we started the Shyam was quite rangine with full of knowledge and we have all gained from Shankar. I unmuted him but there was a lot of aberrations I can just check it out Shankar has a good question sir am I audible yeah yeah of course if at all a government hospital offering paired services refuses to provide emergency treatment can I invoke both article 226 and the provisions of Consumer Protection Act and if at all I have to choose only one which would be the most efficacious remedy. I would say that you can adopt the procedure before the high court that is 226 for that matter 32 returstition because that may be speedy and most cost effective and that too when it is stopped and regarding compensation component maybe you may have to approach the consumer for a because a proper as gracia payment and other things may be possible in public law remedy but an adequate compensation for the loss etc if it requires adjudication and adusing of evidence then the high court may not or the reduced section may not give you that relief but it can definitely be taken up and the judgment rendered by the high court can be utilized in the consumer case or other case which you would like to proceed. So those were the questions thank you Shyam for sharing your knowledge and thank you to all the participants who have been watching us live on the YouTube as well as on this platform thank you everyone stay safe, stay blessed, Namaskar. Thank you.