Liability Beyond Clinical Walls - Medical Negligence In Tele Consultation Services
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Category: General Law
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LIABILITY BEYOND CLINICAL WALLS: MEDICAL
NEGLIGENCE IN TELE CONSULTATION SERVICES Moesha Kapoor, Symbiosis Law School, Noida Introduction Given the significant growth in the health sector, it is less affected by factors such as remoteness, distance, and inability to consult the medical practitioner physically. Medications and consultations have been accessible to all people through video chats, messaging audio or graphic technologies, and so on. This intersection of healthcare delivery with digital communication systems has given rise to what is commonly known as the concept of ‘telemedicine’, representing an important inter disciplinary advancement combining the elements of law, medicine, technology and most importantly, public policy. .
The concept of telemedicine gained momentum during the COVID 19 pandemic when the medical practitioners, it not only helped in minimizing the spread of infection but also helped to maintain continuity in this sector. Nonetheless there have been complex challenges to which people have been facing when it comes to dealing with the intermingling of principles like technology, particularly, when it comes to legal and ethical standpoints. the absence of physical examination can lead to improper diagnosis of the illness, missed communication, failure to detect medical conditions often leading to dire consequences for the patient. Issues like these reflect on how technological sources need to be critically examined through the lens of legality, necessitating an interdisciplinary approach.
This research paper seeks to examine factors like whether there is medical negligence in tele consultation sector and the legal implications for it. Issue
1. Whether absence of physical examination can lead to medical negligence?
2. Whether current medical negligence laws address the issues of teleconsultation services?
Rule Negligence (Medical)
Negligence is one of the key provisions under the Law of Torts which states that all the people owe a certain duty of care towards each other extending till reasonably foreseeable circumstances. To narrow it down to the paradigm of medical negligence in tele consultation, medical negligence refers to instances where healthcare providers fail to fulfill their professional obligations with reasonable and foreseeable care & precaution. The essentials of medical negligence include:
1. There should be a legal duty
2. Breach of duty
3. An act or omission
4. Damage should be caused
Concept of medical negligence is fragmented across various statutes under Indian substantive law and similarly several landmark precedents are set by the hon’ble courts as in the case of Deepa Sanjeev Pawakeshwar v. State of Maharashtra1 it was held that ‘there is a need of an adequate framework for the legality of telemedicine as an emerging healthcare model which requires a legal framework to ensure accountability and patient safety2. Principle of Vicarious Liability- This principle focuses on holding the employer liable for the acts committed by their employees. There should be a legal relationship between them and the act shall be committed in the course of employment. This principle forms a bridge between the individual mal practice and institutional responsibility in the healthcare sector. Analysis The term ‘negligence’ is primarily used for the fastening the defendant.
This could be done either into civil or criminal law. It is the amount of damages incurred which is determinative of the extent of the liability. Negligence is the omission of the act that a reasonable man would refrain from doing or a man who was assigned a duty and he has not adhered by it. This duty
1 Deepa Sanjeev Pawaskar v. State of Maharashta , 2018 SCC OnLine Bom 1841
2 Sankalp Mirani, 'Telemedicine in India
A Critical Analysis on the Regulatory, Legal, & Ethical Consideration of Telemedicine' (2023) Int'l JL Mgmt & Human 2286. can either be a contractual duty or a duty arising out of tort law. However, the doctor patient relationship has not been established in a proper way, but it has been clearly laid down by the Hon’ble Supreme court that it is the duty of the doctor to bring his task and reasonable degree of skill and knowledge to exercise a reasonable degree of care. This does not make a compulsion on a doctor to check whether each of the patients are treated but he should make sure that a reasonable degree of care is being maintained. Once the doctor has agreed to cure the patient, a relationship between the doctor and a patient is maintained and now the doctor has to maintain a duty of care.
Over a period of time, as technology has evolved, the concept of tele consultations has also been used widely, especially after the COVID 19 pandemic. As described by the World Health Organization, the tele consultation services are “The delivery of healthcare where distance is a critical factor by all health care professionals using communication technology for exchange of valid information for diagnosis, treatment and prevention of a disease. ” This can help the patients to consult a doctor without considering distance as a barrier. However when it comes to tele consultation, there are various challenges that one is more likely to face. For example due to the absence of physical examination, it can lead to a false diagnosis of a disease leading to severe issues to the patient.
Further, the consent of the patient should always be taken irrespective of whether the examination was in person, or not. 3 Laws Pertaining to medical Negligence in Indian Framework Prior to the covid 19 pandemic, there were no specific laws which had existed as far as telemedicine was concerned, in fact in 1996 in the case of Poonam Verma v. Ashvin Patel4 , that the medical practitioner uses a fair and a rational method to undergo the medical procedure for there was absence of any particular legislation or guidelines. Nonetheless, they were later issued which came into existence like that of Telemedicine Practice Guidelines much recently in March 2020. Further national Commission Registered Medical Practitioner act (hereafter referred to as NMC) had brought in new regulations under their powers which sought to govern telemedicine in India.
This focused primarily on 2 kinds of liabilities, namely, holding vicariously liable and second, holding the intermediaries liable.
3 Amrutha K, 'Digital Healthcare during COVID-19 Pandemic
Application and Regulatory Aspects of Telemedicine' (2021) 2 Indian JL & Legal Rsch 1
4 Poonam Verma v Ashvin Patel 1996 SCC (4) 332
Apart from these guidelines there are some statutory guidelines also which have been framed. For example, section 2(11) of the consumer protection act, 5 states that the practitioner can be held liable for a loss or injury for any act, omission or any deficiency in service. Nonetheless, it becomes extremely difficult for the doctors to diagnose correctly because of the lack of physical examination On a similar note, intermediaries can be held liable under IT Act 2000, but since it has not been clearly stated about tele medicine per se, there still remains a room for unambiguity and interpretation by the courts. Despite the fact that both these laws provide us with the legal base, foundation and a framework, the fail to clear definitions and enforcement mechanisms, which can further lead to problems in regulating issues brought up like that of medical negligence.
Further when they would be made, both the plaintiff and the defendant shall also be aware of the remedies provided as well as the defenses respectively. 5 Comparative Analysis In contrast to Indian provisions, other countries, laws on telemedicine and tele consultation had come into existence a long time ago. Singapore serves as the best paradigm where in 2015 itself, National Telemedicine guidelines were formulated. Not only this but also, the European Union, e health plans adopted in 2004, which was after followed by the E action plan for the years 2012 to 2020 as well. Further delving into United States of America, stated several provisions like that of Washington DC (Telemedicine Reimbersement Act 2013). California and Louisiana, on the other hand have ‘Informed Consent medicine made for Telemedicine.
’ India, by comparison, is still in the nascent stages of such interdisciplinary integration. Application The Hon’ble Supreme court has stated that the damages in a civil suit would be given according to the damage which has been incurred, whereas in criminal law, damages are given according the recklessness as distinguished in the case of Poonam Sharma v. Ashwan Patel. 6 A negligent person is a person who commits an act or an omission. A rash person knows the consequences of the act but thinks foolishly, whereas a reckless person despite knowing the consequences of 5 Chhavi Sharma, Reeta Sony & Meera Mathew, 'Integrated Healthcare Delivery and Telemedicine: Existing Legal Impediments in India' (2021) 2
6 ibid
the act, but he does not care. But in case of medical negligence specifically under tele consultation services, the professional cannot fall in either the category of a reckless person or in the category of rash person. There have been a variety of cases where the doctors have been held liable because of the reckless behavior’s as shown by them during the practicing. The best suited example is of Deepa Sanjeev Pawaskar v. State of Maharashtra. 7 In this case, the patient had undergone a caesarian section. However, after the discharge there were issues which had arisen leading to readmitting. . The next day she had to be taken again due to the complications within 24 hours of discharge.
Therefore the staff of the hospital had given her medications as per the instructions given by the doctors over telephonic conversation The issue was primarily because of the lack of physical checkups and examination before the treatment. Hence, this lack of proper examination had led to gross negligence and recklessness on part of the medical examiner. The issues framed included the aspect that whether prescription without diagnosis amounts to criminal negligence on part of the medical practitioner and whether this case would lie under civil liability or not. The Hon’ble Bombay High court ruled that the doctors would be held criminally liable for gross negligence and recklessness covered on their part.
This was not just a civil liability but a criminal liability because of providing in accurate medicines over telephonic conversation without the regard of repercussions, the practitioner was declined anticipatory bail, further being held liable under grounds of culpable homicide not amounting to murder under section 304A of IPC 7. If we critically examine the aforementioned case, the essentials of medical negligence are there should be a legal duty, breach of that duty and damage caused. In the above case there was a medical practitioner, he had the legal duty, and had breached that duty because had prescribed without properly examining the patient, medications were given.
secondly a reasonable care is expected from the practitioner, but neither the hospital was able to arrange for doctors to examine properly nor a standard of care was taken care of posing the plaintiff to unnecessary exposure of risk factor. This was laid down in Jacob Mathew v State of Punjab8 that in order to prove medical negligence, it should be gross rather ran mere failure to perform the duty.
7 ibid
8 Jacob Mathew v. State of Punjab (2005) 6 SCC 1
Further, since the negligent act was carried during the course of employment, and it was related to the professional duties of the medical practitioner, therefore the hospital can be held liable for the same. Lastly the medical practitioner shall be held liable under section 304 of IPC, for culpable homicide not amounting to murder because of the gross negligence which was caused. Conclusion With the advancement in the technological field physical barrier like that of distance are not considered as obstacles anymore. People can consult their medical practitioners with the help their electronic devices like that of mobile phones via voice or video conferencing. However sometimes, this absence can lead to certain repercussions and damages which make it very hard to restore the original position.
The essentials like that of proper duty of reasonable care, and expertise should be followed while consulting the patients on an online platform. On making a comparative analysis with other countries we have come to realize that there have been various countries which have issued guidelines for the medical practitioners and staff which are to be adhered while examining the patient to decrease and minimize the risk of any gross negligence. More recently, we have also discovered how such similar guidelines have been issues in India too to maintain a a duty of care. Further by the courts’ precedents we have also skimmed through the liabilities the medical practitioner would face or whether the hospital would be held liable vicariously.
It is an important tool to face many challenges, however, to use it properly it becomes extremely crucial for us to make sure of duty of care, ethical responsibility and continuous regulatory advancements as and when they are required.