The Supreme Court decision in Jacob Mathew continues to be the leading precedent on the law of medical negligence, which had approved the Bolam test i.e. ‘The test is the standard of the ordinary skilled man exercising and professing to have that special skill’. In Jacob, whilst the Hon’ble Court has clarified that “mere deviation from normal professional practice is not necessarily evidence of negligence”, the Hon’ble Court has also held to the effect that the course to follow would depend on the facts and circumstances of a given case, and that the procedure in fact adopted must be one acceptable to medical science as on that date (i.e. requiring knowledge/correct application of the latest protocols officially prescribed for care, treatment and clinical management of COVID-19 patients by the governing medical bodies and Central/State ministries/departments for health and family welfare).
Information and practice management review/update
In COVID circumstances, the medical professional/practice may need to thoroughly reassess the application of the general and approved practice (eg. Duties of Physicians to their Patients under Chapter 2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics Regulation, 2002) to their services and public dealings, due to the relative unknowns of the virus and its effect on other co-morbidities, unavailability or limited access to resources and emergencies brought about by administrative protocols imposed from time to time. Ensuring prescribed protocols are being scrupulously followed and practice management is updated with the latest developments in science and official administration of the pandemic may provide the best safeguard against an action for medical malpractice, whilst ignorance or contravention of the same would strengthen such action.
Consent forms and one-sided agreements disclaiming liability
“The devil is in the details”, a consent form and other such documents frequently constitute the first line of defence against civil and/or criminal action for alleged medical malpractices. Procuring the relevant person(s) signature on such document(s), as is often the case, may not be enough as the law imposes onerous requirements with respect to such documents, including information to be communicated thereby (which may be unavailable, incomplete or erroneous due to the COVID effect) in order to obtain an informed consent. Since failure to obtain, record or inadequate consent in the circumstances may help prove a case of medical malpractice, the contents of such documents may need to appropriately drafted, revised or at least reviewed to ensure compliance of the standards imposed by law.
Further, using standard form documents may also not suffice as this practice has been heavily penalised by the National Consumer Disputes Redressal Commission (NCDRC). In addition, merely relying on documents executed by the patient/complainant in difficult COVID circumstances and one-sided or favorable terms therein disclaiming or limiting liability, may be ignored and penalised as an “unfair contract or unfair trade practice” under the recently enacted Consumer Protection Act 2019 by the judicial forum adjudicating a case of medical negligence or other such deficiency in services.
Medical and healthcare professionals offering their services through telemedicine must ensure that the general and approved practice prescribed by the governing body is followed (and suitably adapted) despite the switch to a digital/online interface, to supplement the Telemedicine Practice Guidelines, 2020 notified recently (constituting Appendix 5 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics Regulation, 2002)), as these guidelines remain untested in a Court of law.
Where the professional sets up and uses their own online website or portal for telemedicine, the same may also be subject to other regulations requiring compliance and penalty for failure, such as the Consumer Protection (E-Commerce) Rules, 2020, Drug And Cosmetics Act, 1940 with respect to prescriptions, compulsory registration and additional compliances under GST law etc.
Since the practice (eg. hospital, clinic, telemedicine portal etc) is vicariously liable for the acts of negligence committed by other medical professionals engaged or empanelled by the practice to provide such services, telemedicine by the practice may prompt administrative and contract reviews for risk management purposes.
If the professional offers such services through a third-party online portal, risk management would involve a review of the relevant agreement(s) with third-parties and protocol followed by them, to ensure any deficiency or contravention of the law or regulations either indemnifies the professional or appropriately apportions liability for any medical malpractice alleged.
The law places medical professionals on a pedestal by requiring negligence alleged to be of a “gross” nature (see Jacob) and certain preliminary inquiry to be conducted by investigating authority before taking coercive action in the form of arrest and detention of a medical professional in medical negligence cases, as held by a Constitution Bench of the Supreme Court in Lalita Kumari.
However, the above judicial precedents do not provide a medical professional absolute protection from arrest or prosecution, as the Hon’ble Court in Lalita Kumari has also held that the registration of a First Information Report (FIR) is mandatory “if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation”. Furthermore, for the purpose of arrest, investigation and framing of charge leading to a criminal trial, a prima facie case against the accused may suffice, which could be easier to establish in the present COVID circumstances and the concerned Court may not look deep into the possibility of opportunistic or mala fide action by the complainant.
Where services are provided through telemedicine, failure to follow the guidelines, prescribed protocols or even temporary oversight, which results in fatality or other such serious consequences, inference of profiteering at the public’s expense, may justify the denial of interim reliefs (eg. release on bail) to the medical professional, even if such facts prove insufficient to support a criminal conviction for an alleged criminal negligence offence.
In such circumstances, where criminal action is threatened or taken, diligent, accurate and ongoing maintenance of necessary records, including consent forms and recordings of online consultations provided etc. would lend weight to an immediate plea for interim reliefs (eg. anticipatory bail) before a Court of law. These may also constitute uncontroverted evidence and grounds to potentially quash a criminal prosecution, and also support a legal defence against any medical negligence claim before a civil Court or consumer forum.
Author: Anand Chaudhuri | Advocate @Legalrisk | JD (UNSW) LL.B (CLC, Faculty of Law, University of Delhi) | Website: https://legalrisk.in/. | Email: [email protected]
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 Jacob Mathew v. State of Punjab (2005) 6 SCC 1
 Bolam v. Friern Hospital Management Committee  1 W.L.R. 582, 586
 Samira Kohli v. Dr. Prabha Manchanda & Anr. (2008) 2 SCC 1
 Vinod Khanna v R.G. Stone Urology and Leproscopy Hospital & Ors. in Consumer Case No. 428 of 2018
 Section 2(6)(i) of Consumer Protection Act 2019
 Central Goods and Services Tax Act, 2017
 Lalita Kumari v. Government of Uttar Pradesh & Ors.(2014) 2 SCC 1