Report No. 201

Emergency Medical Care to Victims of Accidents and During Emergency Medical Condition and Women under Labour

Chapter I

Introductory

The Law Commission of India has taken up the subject of 'Emergency Medical Care to Victims of Accidents' and other Emergencies' in the light of the observations of the Supreme Court of India in Paramanand Katara v. Union of India: AIR 1989 SC 2039 and in Paschim Banga Khel Mazdoor Samiti v. State of West Bengal: 1996(4) SCC 37 regarding the refusal of hospitals to grant emergency relief to patients who are injured in accidents and are in emergency medical condition. There are also certain judgments of the National Consumer Redressal Forum in this behalf.

The Commission is aware of the ground reality that in spite of the observations of the Supreme Court and certain provisions of the Motor Vehicles Act, 1988, it is a fact of life that there is no proper pre-hospital medical care and that private hospitals and medical practitioners who are nearest to the place of accident refuse to admit victims even for emergency medical care, on the plea that the cases are medico-legal cases and they direct the victims to go to government hospitals, howsoever far they may be. Some private hospitals refuse purely on monetary grounds, if the victim is either poor or is not immediately in possession of funds.

The medical literature on the subject states that the 'GOLDEN HOUR' is the first hour immediately after the accident in which 'emergency medical care' is necessary and most victims die if no such care is available or is not given soon after the accident. The purpose of emergency medical care is to 'stabilize' the patient and this, unfortunately, is not done. In the public interest case filed in the Supreme Court on the need for emergency care of victims of accident, the Supreme Court of India stated in Parmand Katra v. Union of India : AIR 1989 SC 2039 as follows:

"Every injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death. There is no legal impediment for a medical professional when he is called upon or requested to attend to an injured person needing his medical assistance immediately. The effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation."

"Preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment.

A doctor at the Government hospital positioned to meet the State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession.

The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. Every doctor should be reminded of his total obligation and be assured of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others.

Zonal regulations and classifications cannot also operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee on Forensic Medicine (set up by the Ministry of Home Affairs of the Government of India) is to become operative."

"It is expected of the members of the legal profession which is the other honourable profession to honour the persons in the medical profession and see that they are not called to give evidence so long as it is not necessary. It is also expected that where the facts are so clear it is expected that unnecessary harassment of the members of the medical profession either by way of requests for adjournment or by cross examination should be avoided so that the apprehension that the men in the medical profession have which prevents them from discharging their duty to a suffering person who needs their assistance utmost is removed and a citizen needing the assistance of a man in the medical profession receives it."

In Paramanand Katara v. Union of India 1989 SC 2039, the Supreme Court observed that,

"every injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death"

"It is further submitted that it is for the Government of India to take necessary and immediate steps to amend various provisions of law which come in the way of government doctors as well as other doctors in private hospitals or public hospitals to attend to the injured/serious persons immediately without waiting for the police report as completion of police formality. They should be free from fear that they would be unnecessarily harassed or prosecuted for doing their duty without first complying with the police formalities.

It is further submitted that a doctor should not feel himself handicapped in extending immediate help in such cases fearing that he would be harassed by the police or dragged to court in such a case. It is submitted that Evidence Act should also be so amended as to provide that the doctor's diary maintained in regular course by him in respect of the accident cases would be accepted by the courts in evidence without insisting the doctors being present to prove the same or subject himself to crossexamination/harassment for long period of time."

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal,1996 (4) SCC 37, the Supreme Court further held (para 9) that,

"in this context Shri Dhavan has invited our attention to the recent developments that have taken in this field in the United States. There it was found that private hospitals were turning away uninsured, indigent persons in need or urgent medical care and these patients were often transferred to, or dumped on public hospitals and the resulting delay or denial of treatment had sometimes disastrous consequences.

To meet this situation the US Congress has enacted the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) to prevent this practice of dumping of patients by private hospitals. By the said Act all hospitals that receive medicare benefits and maintain emergency rooms are required to perform two tasks before they may transfer or discharge any individual:

(i) the hospital must perform a medical screening examination of all prospective patients, regardless of their ability to pay;

(ii) if the hospital determines that a patient suffers from an emergency condition the law requires the hospital to stabilize that condition and the hospital cannot transfer or discharge an unstabilise patient unless the transfer or discharge is appropriate as defined by the statute.

Provision is made for imposing penalties against hospitals or physicians that negligently violate COBRA. In addition, the individual who suffers personal harm as a direct result of a participating hospital's violation can bring a civil suit for damages against that hospital."

The Supreme Court further held (para 9) that,

"the Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the government is to serve the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the government in a welfare State. The government discharges the obligation by running hospitals and health centers which provide medical care to the person seeking to avail of those facilities. Art. 21 imposes an obligation on the State to safeguard the right to life of every person."

The Supreme Court referred to the Union of India through an affidavit) in Paramanand Kumar Katara v. Union of India, AIR 1989 SC 2039 (para 6) as follows, namely, that:

"there are no provisions in the Indian Penal code, Criminal Procedure Code, Motor Vehicles Act, etc., which prevent doctors from promptly attending on seriously injured persons and accident cases before the arrival of police and thus taking into cognizance of such cases, preparation of FIR and other formalities by the police. However, the deponent most humbly submits that the respondent shall always abide by the directions and guidelines given by the Hon'ble Court in the present case."

Though the life and liberty of a person is very much protected under Part III of the Constitution (under Art. 21), and though there is a Supreme Court direction that in all accident cases irrespective of the police complaint, it is the fundamental duty on the part of the hospitals (where the injured were taken) to attend on the patients, unfortunately nothing is done in the matter. As a result, many people have been dying without any care or attention.

Doctors point out that at least 50 per cent of the fatality can be averted if the victims are admitted to a hospital within the first one hour. For an accident victim, it is important that he is provided basic first aid which enables him to survive till he reaches the hospital.

With increasing vehicle population, there is an ever-increasing number of accidents on our roads. Though our vehicles travel much more slowly compared to global standards, our accident rate per 1000 vehicles is among the highest in the word.

The National Consumer Disputes Redressal Commission in Pravat Kumar Mukherjee v. Ruby General Hospital & Others (25.4.2005) declared that a hospital is duty bound to accept accident victims and patients who are in critical condition and that it cannot refuse treatment on the ground that the victim is not in a position to pay the fee or meet the expenses or on the ground that there is no close relation of the victim available who can give consent for medical treatment. Sumanta Mukherjee, a 20 year old student was injured when a Calcutta Tramway Corporation bus hit his motorcycle. The victim was taken to the nearest hospital, the Ruby General Hospital.

The victim was conscious when he reached the hospital and showed the doctors his medi-claim policy insuring him for Rs. 65,000/-. He assured the hospital that all the bills would be cleared and requested that treatment be given. The doctors started emergency treatment but soon demanded Rs.15,000/- from the persons who brought Mukherjee in. Those persons immediately pooled Rs.2,000/- and informed that they had contacted the parents of the victim and the parents were willing to pay the balance. However, since the amount of Rs.15,000/- was not arranged, the hospitals discontinued treatment. The victim died.

The National Consumer Commission while imposing damages in a sum of Rs.10 lakhs on the Hospital observed that doctors at the hospitals cannot first demand fees before agreeing to treat the patient and they cannot also insist on consent of relatives of the victim before starting emergency treatment. The National Commission relied on Paramanand Katara decided by the Supreme Court, referred to above. It held that the preservation of human life is of paramount importance. That is also in consonance with the Code of Medical Ethics. Recovery of fees can wait, but treatment cannot be denied.

The Supreme Court in Indian Medical Association v. V.S.Shanta:1995(6) SCC. 651 observed that a hospital has generally two categories of patients, those who pay and those who are treated free, the free patients acquire the status of consumers because it is deemed that the treatment to free patients is deemed to be met by the paying patients.

In view of the above judgments of the Supreme Court and the National Consumer Redressal Forum and the fact that there is no appropriate legislation on the subject, the Law Commission of India has taken up the subject suo motu. It proposes to give recommendations and also a draft Model Bill for the purpose of emergency treatment of victims. The Bill will cover medical treatment to victims of all types of emergencies requiring immediate medical help, including motor, fire and other accidents, which take place during earthquakes, floods, etc. It can also be in respect of a woman under labour.

Further, we are adding a chapter on 'Ambulance' to given an idea about what law can be made for regulating ambulances. We are not, however, making any recommendation so far regulation is concerned.