Holding Healthcare Providers Accountable: Consumer, Civil, and Criminal Mechanisms
Background
The legal mechanisms available to hold healthcare providers accountable for misconduct and negligence in India have not been well studied. Academic discussions revolve around the law laid down through cases brought to the High Courts and the Supreme Court of India. Currently, there is limited exploration of the functioning and effectiveness of the fora more frequently accessed by patients, i.e., consumer, criminal, and civil courts. This study aims to address gaps in the literature by analysing the decisions of these fora alongside the substantive law governing these cases. i.e. consumer protection law, criminal law, and the law of torts.
This report analyses and compares trends across three datasets of judgments which deal with medical negligence. The data was sourced as follows: (a) For consumer law cases, data was sourced from the online portal which officially hosts orders passed by consumer courts across the country (‘ConfoNET’); (b) For criminal cases, data was sourced from ‘eCourts’, the official nationwide online database maintained for district-level court proceedings (c) Civil cases from the High Courts and the Supreme Court were obtained through a partnership with a private aggregator of legal information (Manupatra). The data has been analysed on the basis of issues litigated, alleged violations, outcomes, adjudicatory approaches, the rationale applied to determine guilt or liability, remedies awarded, and the time taken to dispose of cases. These findings are interpreted against the backdrop of established jurisprudence and legal literature pertaining to medical negligence.
Key Trends in the Data
- Most consumer cases in the dataset involve issues with the treatment or care provided, with very few being based on infrastructural defects. The majority of the criminal cases were filed under Section 304A of the Indian Penal Code 1860 (death due to negligence). However, a number of cases also included simultaneous allegations of the offences of forgery, cheating, criminal intimidation, conspiracy, and grievous hurt caused due to a negligent act, as well as a few offences under other laws.
- Lower courts tended to decide in favour of healthcare providers in the majority of cases (consumer and criminal), with particularly low conviction rates in criminal cases. Many criminal complaints at the district level were dismissed before commencing trial – primarily on the ground that the prosecution either failed to obtain an expert medical opinion as per guidelines laid down in landmark rulings, or to establish a prima facie case of medical negligence. Unlike in the criminal and consumer datasets, the healthcare provider was held liable in more than half of the dataset of tort cases adjudicated by the High Courts.
- Consumer complaints were most often filed against individual practitioners jointly with the concerned healthcare establishments, while criminal complaints tended to focus on individual practitioners alone. Most consumer and criminal cases were filed against private healthcare providers. Tort cases before High Courts saw an overwhelming proportion of defendants / respondents being government healthcare providers.
- Criminal convictions usually went beyond a prison sentence, and fines / compensation of widely varying amounts were awarded in addition to imprisonment. Consumer commissions awarded an even wider range of compensation under various heads, such as physical or mental suffering, litigation expenses, and loss of love and affection; notably, most of them did not specify the rationale / principle followed when calculating compensation.
Takeaways and Recommendations
When adjudicating cases of medical negligence or other deficiencies of service in the healthcare context, courts often underscore the need for expert opinion or literature that may be relied upon in coming to a decision. These are, however, not always available or adequate for the task. The outcomes of cases, the rationale followed, and the compensation amounts awarded in cases of medical negligence vary widely across cases and even between different states, leading to significant inconsistencies in outcomes for litigants. More careful and consistent consideration and analysis is required in order to determine which cases require expert medical opinion, as well as the onus and process of producing such opinion. Further, the apparent reluctance of courts to convict healthcare providers of medical negligence under criminal law raises questions as to the role of this mechanism as a tool of accountability in the healthcare space, and possibly warrants further research.
In order to address issues of medical negligence and improve accountability in the healthcare space, emphasis needs to shift from judicial intervention to healthcare reform by executive action and by improving regulatory frameworks. Healthcare establishments need to be incentivised to develop accessible and effective internal grievance redressal mechanisms so that patients’ concerns can be resolved in real-time, avoiding long and expensive legal proceedings. The last chapter of this report sets out key recommendations for the strengthening of grievance redressal mechanisms at healthcare establishments, and the reform of criminal and consumer adjudicatory processes for cases of medical negligence, as follows:
- Issuing guidelines to educate consumer fora, district courts, healthcare providers and establishments about developments in the jurisprudence concerning medical negligence.
- Framing rules under the Consumer Protection Act, 2019 to guide the use of expert opinion and the calculation of compensation in such cases.
- Drafting rules to replace the Supreme Court’s guidelines in the landmark judgement in Jacob Mathew v State of Punjab (2005) 6 SCC 1 : MANU/SC/0457/2005 (Jacob Mathew).
- Setting up permanent district medical boards to provide expert opinion in medical negligence cases, as per Jacob Mathew.
- Framing rules under the Clinical Establishments (Registration and Regulation) Act, 2010 and analogous legislations mandating internal grievance redressal systems at all healthcare establishments.
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About the Authors
Shreya was a Senior Resident Fellow working in the area of Health and Education. She worked on research projects related to public health, patient rights and inclusive education. Her areas of interest include Public Health, Right to Education, Constitutional law, Cyber law, and the intersection of Health and Technology. Shreya graduated with a B.A. LL.B. (Hons.) from Hidayatullah National Law University, Raipur in 2018. She has been published in newspapers and websites like The Hindu and The Wire. She has co-authored the Centre for Civil Society’s ‘Compendium of laws to be repealed in Chhattisgarh’. In collaboration with the Centre for Communication Governance (CCG), she submitted an academic paper to MEITY on ‘Non-Consensual Obscene Content and Indian Law’. Prior to joining Vidhi, she has interned with policy organisations like CCG and the Land Rights Initiative at the Centre for Policy Research, in the Chambers of Senior Advocate Prashant Bhushan, and with law firms like Karanjawala & Co and Samvaad Partners.
Tarika was a Senior Resident Fellow with the Health Team at Vidhi. She has also previously worked with the JALDI initiative and the Climate & Ecosystems Team, where she researched on efficiency, accountability and transparency in the judiciary with an empirical lens. She has written for leading journals and newspapers like Economic and Political Weekly, the Economic Times and the Indian Express. Tarika graduated from Gujarat National Law University with B.A. LL.B. (Hons.) in 2017 and has completed her postgraduate studies in Public Policy from University College London in 2021. She enjoys anime and rock music.
Kim D’Souza is a Senior Resident Fellow at Vidhi. She is currently working on research relating to public health legislation. Prior to Vidhi, Kim worked in real estate and conveyancing law and general corporate advisory for six years, as well as advising organizations in the social sector on contracts and regulatory compliance. She has an LL.B. from Government Law College, Mumbai, and a Bachelor’s in Life Sciences and Biochemistry from St. Xavier’s College, Mumbai.
Shreyashi is a Research Fellow at Vidhi, and works in the area of public health. Her interests include public health, gender & sexuality, mental health, labour, and migration. She completed her B.A., LL.B. (Hons.) from the West Bengal National University of Juridical Sciences, Kolkata in 2016. Prior to joining Vidhi, she was engaged as a consultant to the District Administration, Ranchi. She worked on public health, nutrition, and education in mining-affected and other under-served areas of the district. As part of this engagement, she drafted the Guidelines on COVID-19 Preparedness and Control in Ranchi - and coordinated planning and implementation of health and social support mechanisms (domestic violence, mental health, migrant workers’ rights) during the pandemic. Apart from this, she has close to three years' experience as a researcher on open science and knowledge sharing with the Centre for Innovation, Intellectual Property and Competition at National Law University, Delhi. She co-authored the Open Science India Report, which seeks to guide government/ institutional policies for implementation of open science practices and inclusive research & knowledge ecosystems, especially in the Indian context.
Nihal is a Research Fellow at Vidhi in the Health team. His interests include jurisprudence, technology, and public health. Nihal graduated from the National University of Advanced Legal Studies, Kochi in 2023. He enjoys chess, modern political history, and English fiction.
Rituparna is a Research Fellow at Vidhi and works in the area of health. Her interests include public health, data protection and privacy, and mental health. Prior to joining Vidhi, she was engaged as a Policy Research Associate under Mr. Kashish Aneja, a practicing advocate & consultant with the O’Neill Institute for National and Global Health Law, Washington D.C., where she worked extensively on topics including One Health, global regulation of e-cigarettes, and misleading advertisements related to high fat, sugar and sodium (HFSS) foods and beverages. Rituparna graduated from the National Law University Odisha (NLUO) in 2022 with a B.A., LL.B. (Hons.), and received a Merit Gold Medal in the subject of Personal Law.
