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Health Care Laws | June 13, 2024

Health Care Laws in India

INTRODUCTION:

Every human has a certain type of culture of their own. With humans evolving, their cultures are evolving. Culture can be described as an overall package of knowledge, custom, behavior, belief, habits etc passed down by generations to the society.

Culture and health go hand in hand. Health can be called a cultural concept because culture paves the way of how we perceive the world. India provides a vast healthcare system in three tiers: Sub Health Centre, Primary Health Centre and Community Health Centre. India still remains a popular destination for medical tourists.

The health care laws evolved in the 20^th century as a multidisciplinary field that would focus on the policies and statutes governing the health care industry. This field of law basically focuses on legal issues related to medical providers, health insurers, patients and government agencies. It also addresses a wide range of issues including medical malpractice, insurance issues, medicare etc. 

Health care law was made to ensure the quality and safety of medical care along with protecting the rights and interests of all parties involved. Likewise other practice fields, this field also holds multiple areas of legal practices. Different countries have different laws of heath care. While the USA has The Health Insurance Portability and Accountability Act (HIPAA), The False Claims Act, The Affordable Care Act etc, the Government of UK has differentiated the health care acts on basis of children, adults, public involvement acts etc.

These laws were made to protect patients from fraud and abuse within the health care industry.

HISTORY:

Healthcare has been with us for centuries. Out of the four civilizations of the world, Indus Valley Civilization is believed to have medical history and public health care facilities that were considered superior than any other community. For ages, it has been a rite in different cultures for doctors to take an oath like the Charak Samhita Oath    (1^st-2^nd century BC) , Hippocratic Oath(5^th century BC) etc. 5^th century gave us the ‘Father of western medicine’.  Basic needs of medicine can be found in the Vedas. There are written evidences in Kautilya’s Arthasastra about autopsies and forensic medicine. Kautilya was considered the ‘Father of Forensic Sciences’. Later in India the system of medicine created its individual entity by the name Ayurveda, the science of life.  

Early in the 2000 BC, laws and codes for medical practices were formed by Hammurabi, the great king of Babylon. The state regulated the practice of medicine. Malpractice was recognized and punishable by law. Hammurabi’s Code of Law specified: “If a surgeon performs a major operation on an ‘awelum’(nobleman), with a bronze lancet and caused the death of this man, they shall cut off his hands.”  The laws were severe and damages for harmful therapy static. This can be called the first codification of medical practices.

The oath of ethics that highlights the importance of ethical and professional standards called the Hippocratic Oath was laid down in the 5^th century by Hippocrates – a Greek physician. He is widely known as the “Father of western medicine”. Hippocratic Oath states the work ethics and accountability of doctors. The modern version of the Hippocratic Oath (called the Declaration of Geneva) is accepted by international medical fraternity as the international code of medical ethics.

During the period of Buddha and Asoka, about 2200 to 2600 years ago, hospitals existed in ancient India. This was the time when the study of medicine was at peak in India. During the 10^th century, Hakims were brought by invaders that attacked India.

European physicians arrived in India in the 16^th century under the employment of European trading companies. They were trained medical practitioners who took care of the soldiers and officials. It was them who introduced western medicine in India. British East India Company emerged dominancy in the 18^th century. By the mid 18^th century, India had physicians called hakims and vaidyas who practiced Ayurveda and Unani of diverse backgrounds. By the end of 19^th century, western medicine already had a significant presence in cities and towns. Organized training in allopathy was also seen.

After 1857, the physicians and doctors brought by the East India Company needed some discipline and regulations. After the enactment of the law, the British doctors employed in India were registered with the General Medical Council which came with disciplinary regulations. As the number of doctors increased, creation of law for them became necessary. However the laws for the creation of native medical councils took more years for enactment. 

Grant Medical College Society in 1880 passed a Bombay Medical Act and established the Medical Council.  The Bombay Presidency enacted Bombay Medical Act in 1912. The Bengal Medical Act and Madras Medical Act were enacted in 1914. These acts were followed by the Indian Medical Degree Act passed by the Indian Legislative Council and approved by the Governor General in 1916. The Medical Council of India was constituted after the enactment of Indian Medical Council Act 1933. The first legal recognition and registration of Indian medicine came when Bombay Medical Practitioner Act was passed in 1938.

Evolution of Healthcare post 1947

Post 1947, India experienced a new phase of developments in public health care services. Other centers like family planning welfare, community health volunteers and primary health centers were also set up. The state also enacted new laws and modified colonial laws. Unlike UK’s universal health coverage system, India adopted a Five-Year Plan system, where large institutes like AIIMS (All India Institute of Medical Sciences) were found. At the time of independence, the task was to create physical and institutional infrastructure for modernization of India. Gradually, the parliament passed a number of bills and acts to secure the healthcare in India. 

Sine qua non of medical practice

A duly qualified medical professional, i.e. a doctor, has a right to practice medicine, surgery and dentistry by registering himself with the Medical Council of the State of which he is a resident, by following the procedure as prescribed under Medical Act of the State. 

The State Medical Council has the power to warn, refuse the registration or remove the registration of the name of the doctor who has been sentenced by any court for any non- bailable offence or found to be guilty of infamous conduct of any professional respect. The State Medical Council also has the power to re enter the name of the doctor in the register.

Emergency Healthcare and laws

No hospital or nursing home can refuse emergency treatments, even if the case is medico legal. The Supreme Court has ruled that denying emergency services violates Article 21 of the Constitution. But there isn’t any specific law in India that provides for emergency medical care. It is often interpreted as a right by the Supreme Court and High Courts under Article 21 of the Constitution of India. In the landmark judgment of the case Parmanand Katara v UOI & Ors 1989 AIR 2039, the Supreme Court held that Article 21 of the constitution casts the duty on the State to preserve life. The facts of the case are, a scooterist was knocked down by a speeding car. The petitioner claims himself a human rights activist and filed a writ petition in public interest on the basis of a newspaper report of the accident of the scooterist. The report further stated that the scooterist was taken to a nearby hospital, but the doctors refused to treat him saying it was a case of medico legal and they were not authorized to treat such a person. The injured was told to take to another hospital which was 20kms away and he died while being transported. The Supreme Court in its judgment also added that every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No State action or law can interfere to avoid or delay the discharge of the paramount obligation cast upon members of the medical profession.

 Liabilities in Healthcare

Civil liabilities for malpractice may occur when a patient is harmed because of negligence on the part of hospital authorities.

In Kusum Sharma v Batra Hospital and Medical Research Center and Ors.the court observed that when the medical practitioner failed to maintain the standards of reasonable care, he/she was held for medical negligence. 

In Dr. Laxman Balakrishna Joshi v Trimbak Bapu Godbole and Anr, the Supreme Court observed that the appellant, Dr. Laxman, was guilty of negligence while treating the patient and also committed wrongful act as the appellant did not use anesthesia to reduce the fracture instead of immobilizing with light traction.  

Where the Consumer Protection Act ends, the Tort Law begins. People generally file a complaint for compensation under tort law. If there is a breach of duty to care, then the hospital will be liable to pay compensation for damages.

In Lakshmi Rajan v Malar Hospital Ltd, a 40 year old married woman went to Malar Hospital Ltd for examination after noticing a painful lump on her breast. Her uterus was removed which ended the hope for a child to her. The lump had no effect in it. The hospital was liable for 2 lac rupees of compensation. 

In A. S. Mittal v State of UP, the court ruled that the necessity of maintenance of the highest standards of septic and sterile conditions at places where ophthalmic surgery or any surgery is conducted cannot be over-emphasized. It is not merely on the formulation of the theoretical standards but really on the professional commitment with which the prescriptions are implemented that the ultimate result rests.

The law of Res Ipso Loquitur deals with the matters which speak for itself. This is used in case of gross medical negligence.

In Gian Chand v Vinod Kumar Sharma, the patient was shifted by the hospital authorities from one room to another instead of changing the process of treatment. This resulted in damage to the patient’s health and the authorities of the hospital were held liable.

In Nizam Institute of Medical Sciences v Prasanth S. Dhananka & Ors, the respondent was admitted to the hospital because he had a tumor in his chest. The staff without consulting a specialist performed surgery removing tumor damaging neurological blood vessels, paralyzing the patient. The Hon’ble court awarded an exemplary compensation of one crore rupees to the respondent for all the torment he and his family had undergone as it was medical negligence on behalf of the hospital.

Criminal Law comes into show when the doctor is held liable of incompetency of his duties where the patient’s right to life and right to safety comes at stake, it happens to be a crime against the state. 

In State of Haryana v Smt. Santa, the Supreme Court stated the degree of negligence is a factor for determination of criminal liability. However, motive or intension, degree of offence and the character of the offender must be established to determine criminal liability.

In Dr. Kunal Saha v State of West Bengal,  Anuradha Saha, a child psychologist, developed a severe allergic skin reaction and was treated at AMRI. The treatment involved excessive and inappropriate administration of steroids, leading to her condition worsening and eventually death. The Supreme Court in 2013, awarded Dr. Saha a compensation of 5.96 crore rupees, which was the highest compensation for medical negligence in India. The Court held the hospital and the doctors responsible for improper treatment and lack of due care. 

The disciplinary actions and punishment for medical negligence and misconduct are mentioned in chapter 8 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 made under the Indian Medical Council Act, 1956.

If a medical practitioner is found guilty punishments will include-

1. Removing the name from the register forever or for a specified time.
2. During the pendency of the complaint, the council may restrain the practitioner from practicing.
3. The removal is published in local press and publications of different medical bodies.

Some defenses available for a doctor under Indian Penal Code

Section 80 – Accident in doing a lawful act

Section 81 – Act likely to cause harm, but done without criminal intent, and to prevent other harm

Section 88 – Act not intended to cause death, done by consent in good faith for person’s benefit

Section 92 – Act done in good faith for the benefit of a person without consent

 

 Laws affecting medical profession

Article 21 of the Indian Constitution – Protection of life and personal liberty

Article 32 of the Indian Constitution -   Right to constitutional remedies

Article 41 of Directive Principles of State Policy – Right to work, to education and to public assistance in certain cases

Article 42 of Directive Principles of State Policy – Provision of just and humane conditions of work and maternity leaves

Article 47 of Directive Principles of State Policy – Duty of the state to raise the level of nutrition and the standard of living and to improve public health

Section 90 of the Indian Penal Code – Consent known to be given under fear or misconception

Section 304 A of the Indian Penal Code – Causing death by negligence

Section 337 of the Indian Penal Code - Causing hurt by act endangering life or personal safety of others 

Section 338 of the Indian Penal Code - Causing grievous hurt by act endangering life or personal safety of others

 

Conclusion

In a survey it has been reported that eight out of ten doctors feel that the medicals laws in India are outdated and a higher number of doctors say that too many licenses are to be kept for the medical practices to be ongoing. Also compared to the size of the problems, the laws regarding health are very few. There is a need for having intense and comprehensive laws to gear the health care sector to the objectives laid down in different policies in India. Most of the common medico legal situations arise out on noncompliance with these rules and regulations. If a hospital or doctor acquaints well with these rules and follows them sincerely, he/she would be on the right side of the law.