Report No. 201
Duty of Hospitals and Medical Practitioners:
We have noticed the observations of the Supreme Court in Parmanad Katara v. Union of India : AIR 1989 SC 2039 that hospitals and medical practitioners have a duty to provide emergency medical care.
In that case, the Court observed that "the effort to save the persons should be the top priority not only of the medical professionals but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an accident or a situation". The Court said, "it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished". The Court further observed:
"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."
The Court also observed:
"But on behalf of the medical profession there is one more apprehension which sometimes prevents a medical professional in spite of his desire to help the person, as he apprehends that he will be a witness and may have to face police interrogation which sometimes may need going to the police station repeatedly and waiting and also to be a witness in a Court of law where also he apprehends that he may have to go on number of days and may have to wait for a long time and may have to face sometimes long unnecessary crossexamination which sometimes may even be humiliating for a man in the medical profession and in our opinion, it is this apprehension which prevents a medical professional who is not entrusted with the duty of handling medico-legal cases to do the needful, he always tries to avoid and even if approached, directs the person concerned to go to a State hospital and particularly to the person who is in-charge of the medico-legal cases."
The Court directed:
"We are of the view that every doctor wherever he be within the territory of India should forthwith be aware of this position and, therefore, we direct that this decision of ours shall be published in all journals reporting decisions of this Court and adequate publicity should be given by the national media as also through the Doordarshan and All India Radio."
Similar views were expressed in the other cases referred to above.
We are, therefore, of the opinion that it is necessary to impose a statutory duty on hospitals and medical practitioners to attend on a person who has met with an accident or who is in an emergency condition who comes before them or who is brought before them, without raising any objection and without any excuse that it is a medico-legal case and that the person must be taken to a Government hospital.
Apart from this kind of objections, there are other circumstances which are recognised today as being responsible for refusal to treat persons mentioned above. One such objection is that the person is not immediately in a position to meet the expenditure that may be involved in emergency medical treatment. Sometimes, hospitals or doctors want immediate payment. Some others are not prepared to take up cases where the person does not have insurance or has no facility for medical reimbursement either from his employer or under any other medical reimbursement scheme.
These and other objections necessitate that a specific statutory provision must be made imposing a mandatory duty on hospitals and doctors to treat persons who are injured in accidents or who are in other medical emergencies. They have to first treat the patient, screen him, stabilize him and render such emergency medical care as is required or is available in the hospital or the clinic of the medical practitioner. We are also proposing a statutory scheme for reimbursement by the State Governments.
The first few hours are known as 'golden hours' for such patients for if there is no emergency medical care coming soon after the accident or other emergency medical condition, the life of the person may be lost for ever or he may remain crippled and ill beyond repair for all time.
In the United States of America, as stated in chapter III, lack of interest on the part of hospitals to attend on victims of accidents, those in an emergency medical condition and women under labour led to the passing of a law called EMTALA STATUTE (42 USC 1395 DD) (Emergency Medical Treatment and Labour Act) by amending the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). That Act made it a mandatory duty on the part of hospitals to attend on such persons. The Act contains an entire scheme of screening, stabilizing and rendering emergency treatment.
It also deals with situations where the hospital is not sufficiently equipped to provide stabilization or emergency treatment and in that event, the hospital has to transfer the person to another hospital. In certain cases, it cannot transfer unless the patient is stabilized. A number of safeguards are provided in Emtala as to what should be done for transfer of a person to another hospital. The Emtala also creates offences against those who violate the duties envisaged by it.
In this Report and the Bill, we have adopted some of the principles stated in Emtala and we have made suitable changes for our purposes in India.