2009 February - Note 4

Supreme Court reiterates its viewpoint on medical negligence – Nothing new (Dr. Martin F. D’Souza v/s Mohd. Ishfaq) - Aman Vachher, Advocate, Supreme Court of India

The recent judgment of the Supreme Court in the case of Martin F. D’Souza v/s Mohd. Ishfaq merely reaffirms the existing legal position in cases of medical negligence. But media all over the country has portrayed it as a judgment that has drastically changed law of medical negligence, which is not true.

The only change that this judgment has brought is in the Consumer Courts and that too very insignificant. It has directed all the Consumer Courts (District, State, and National) to issue notice to doctors in cases of medical negligence only after getting medical opinion pointing out to prima facie negligence.

All those who appear in Consumer Courts are well versed with the fact that in cases of medical negligence where the scientific aspect of medicine is involved, independent medical opinion is invariably sought by the courts from reputed institutions. In fact, even in the present case the National Consumer Commission, where the dispute was originally filed by the patient, had also sought opinion of AIIMS. It was only after getting medical opinion that the judgment was passed and this judgment was in appeal before the Supreme Court.

So, practically no change will be felt in the Consumer Courts. A procedure that was usually followed by the courts will now have to be compulsorily followed. The problem will arise where certain nonmedical or purely legal issues are involved, where medical opinion is not required to come to a decision. For example, a patient alleges negligence on the ground that consent was not taken or that confidentiality was breached by the doctor or that medical records were not supplied. Even in such matters medical opinion will have to be taken by the Court as no discretion is now left with the Court. What would be the medical opinion in such cases is anybody’s guess.

As far as Criminal Courts are concerned, issuing notices to doctors after getting medical opinion was made mandatory by the Supreme Court in 2005 in the case of Jacob Mathews v/s State of Punjab. Arresting doctors were made difficult by the same judgment. In this judgment, the Supreme Court has merely reaffirmed the legal position.

There is one interesting aspect to note. The Supreme Court has been continuously commenting on the falling professional standards of doctors in a series of decisions right from Suresh Gupta’s case, Shiv Ram’s case, and Jacob Mathew’s case to the present case. But at the same time, it has been giving special concessions and privileges to doctors which perhaps are unheard in any other legal jurisdiction in the world. It is therefore imperative that doctors in India must suo-motto take upon themselves the task of self-regulation at the earliest, or else this wheel may even turn the other way round. Law is dynamic and changes very fast.

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