Medical jurisprudence

LAW OF MEDICAL NEGLIGENCE AND COMPENSATION: R. K. Bag; Eastern Law House Pvt. Ltd., 36, Netaji Subhash Marg, Daryaganj, New Delhi-110002. Rs. 475.

HUMAN RIGHTS, guaranteed by universal jurisprudence, have a feel of actuality only if human health is free from disease and is freely available to everyone. India, in its sensitive Constitution, has declared "right to life" as a fundamental right. Indeed, in its Directive Principles of State Policy, the State has been obligated to ensure the "health and strength of workers, men and women and the tender age of children". Thus we have constitutional remedies where health is in jeopardy, with Articles 32 and 226 as sentinels on the qui vive! Furthermore, to make freedom from disease effective, statutory provisions have been enacted and consumer tribunals set up. We have, all over the country, several hospitals and plural processes of healing, at the service of the people, some run by the State, others by charitable institutions and yet others by private agencies.

The rich and the poor afflicted by illness or in search of better health, frequent therapeutic sanctuaries with great faith and hope. There are experts, healers and pharmaceutical manufacturers in the field. But what happens when patients who, going in for treatment, do not receive the necessary degree of care, the serious measure of expertise or other requisites of legitimate medical attention, resulting in aggravation contrary to expectation or visited by throes and traumas or other noxious consequences? Maybe, the hospital is ill equipped, the drugs used are ineffective or even deleterious Placebos are not recipes.

It may well happen that negligence of the medical institution and personnel result in the unjust misfortune of the patient becoming a casualty. It is not uncommon to come across victims of medical negligence, institutional or individual, and the helpless patient driven to seeking compensation. Cash is not equal to cure; even so the main methodology of relief is monetary compensation as the ordinary relief the court can give, save when criminal negligence invites stern sentencing.

The law of medical negligence has developed into a full-fledged jurisprudence. Penalogical therapies are a part of judicare when pathological aberrations become culpable. Likewise, pathological conditions command medicare as an aspect of social justice. This blend of medicare and judicare provides the perspective for a remedial jurisprudence governing medical negligence as an inevitable ancillary to the right to health. Integral to social justice, inalienable from human health and functionally auxiliary to the rule of life is delictual law, medico-criminal justice and statutory pharmacopoeia, if I may innovate a jural remedial diction.

This paramountcy of the law of medical negligence is the driving force that has midwifed the exhaustive and excellent treatise, by R. K. Bag, updated and supplemented to make the book a functional friend of the lawyer, judge, law teacher and of course, the doctor.Sometimes doctors have to pay compensation or penalty for proven failure of duty or face prosecution and sentence. So too, hospitals and other homes for the sick which claim expertise of a high order and reputation of five-star equipment and advanced modes of treatment when they fall short of professional efficiency. There are standards of reasonable care even for specialists and reputed hospitals.

The law of medical negligence is indispensable if the right to life is not to be a fleeting breath imperilled by a physician's flaw, surgeon's knife, anaesthetist's indifference or equipmental inadequacy. This is the context in which Bag's authoritative book on Medical Negligence and Compensation becomes a vade mecum for concerned professions and institutions.

The grammar of medical justice is no serendipitous jurisprudence. It is as old as the English law of torts, as vast as the American medical liability case law and as burgeoning as Indian Consumer Protection Act, the Indian Medical Council Act and other statutory fragments. The Indian Courts too have added to the wealth of medico-legal literature and standard books of excellence like that of Bag.

The work under review here has illumined the law collecting and enriching as the author has done, in a manageable volume, all that has to be brought within the ken of the professions and institutions concerned and of the law students to "fresh woods and pastures new". The author claims, with a just boast, that nothing that needs to be said has been omitted and, consequently, his labours have produced a classic. While moderation is a virtue, proud achievement presses some writers to proclaim the glory that is their due.

Consumer courts are a new arrival in India and the rulings, though some are exceedingly good and others a mediocre crowd, have only created huge arrears and proved sad disappointments. Since litigation is slow and the tribunals less creative, imaginative and radical, the suspected negligence of doctors leads to tension in hospitals, not resort to consumer courts.

More awareness of the law among professionals and people generally, is a desideratum, which brooks no delay. Bag's book, lucid in presentation, comprehensive in coverage and meaningful in comparative study, is warmly welcome. Plethoric pathological challenges cannot be met by old legal dogmas and judicial members cradled in dated justicing processes.

The Bag volume is heavy but the learning of 500 pages is weighty. The law of medical negligence and compensation familiar to lawyers fed on English law and of other "common" wealth countries, with appropriate reference to Indian jurisdiction, is a great help. The principles and quantification of compensation under the general, penal and consumer law have been usefully arranged in the book. What is flexible in this branch of law is the concept of reasonable care, standard of skill, proper diagnosis.

The requirement of informed consent in treatment is also important and has portents. Indeed, the entrance of constitutional jurisprudence in the field of medical negligence is wholesome. The scope of negligence in relation to tortuous liability, contractual liability, criminal liability and liability for constitutional wrongs is diverse and demands a clear understanding of the duty of care, the neighbour principle, the chain of causation, the implied obligations in contracts, and propositions of criminal negligence and the emerging rules of consumer jurisprudence under statutory provisions. All these are covered by the book.

Service rendered free of cost &151; does it cast a liability when things go wrong? I see no reason why it should not. The law is a little irrational in the area of service free of cost as distinguished from service rendered on payment. Edifying are the pages dealing with duty towards foetus, especially because abortions are escalating and population control is becoming popular.

The necessity for informed consent touches the common person and this branch of law becomes complicated in the case of treatment of children, mentally ill persons and emergency cases. I skip reference to the rest of the book except to observe that the question of assessment and award of compensation has received the author's exhaustive attention.

We live in times when more and more people rush to hospitals. But their appointments with the specialists turn out to be disappointments on account of a variety of factors. I may call it hospito-pathology. The birth of deformed babies, cretinism and other infantile diseases may be explained; the extensive environmental pollution, exposure to radiation during pregnancy, popular consumption of wrong drugs and other paedogenic infirmities are the price of crazy modernity. Who is liable for these technological culpabilities? Here the rule of law must run faster to defend the right to life.

The author has thoughtfully given in part C relevant provisions from ten enactments.

This adds to the value of the book. Hospitals and doctors beware &151; Bag's book is a caveat. Lawyers and jurisprudents are aware there is an updated, enlarged edition.

V.R. KRISHNA IYER

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