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p://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 25
withstanding the logical analysis, the court would be entitled to hold
that the body of opinion is not reasonable or responsible.
In Indian Medical Association vs. V. P. Shantha - 1995 (6) SCC 651, this
Court held :
"The approach of the courts is to require that professional men should
possess a certain minimum degree of competence and that they should
exercise reasonable care in the discharge of their duties. In general, a
professional man owes to his client a duty in tort as well as in contract
to exercise reasonable care in giving advice or performing services".
Neither Achutrao nor Vinitha Ashok referred to the American view
expressed in Canterbury.
26. In India, majority of citizens requiring medical care and treatment
fall below the poverty line. Most of them are illiterate or semi-literate.
They cannot comprehend medical terms, concepts, and treatment
procedures. They cannot understand the functions of various organs or
the effect of removal of such organs. They do not have access to effective
but costly diagnostic procedures. Poor patients lying in the corridors of
hospitals after admission for want of beds or patients waiting for days on
the roadside for an admission or a mere examination, is a common sight.
For them, any treatment with reference to rough and ready diagnosis
based on their outward symptoms and doctor’s experience or intuition is
acceptable and welcome so long as it is free or cheap; and whatever the
doctor decides as being in their interest, is usually unquestioningly
accepted. They are a passive, ignorant and uninvolved in treatment
procedures. The poor and needy face a hostile medical environment -
inadequacy in the number of hospitals and beds, non-availability of
adequate treatment facilities, utter lack of qualitative treatment,
corruption, callousness and apathy. Many poor patients with serious
ailments (eg. heart patients and cancer patients) have to wait for months
for their turn even for diagnosis, and due to limited treatment facilities,
many die even before their turn comes for treatment. What choice do
these poor patients have? Any treatment of whatever degree, is a boon or
a favour, for them. The stark reality is that for a vast majority in the
country, the concepts of informed consent or any form of consent, and
choice in treatment, have no meaning or relevance.
The position of doctors in Government and charitable hospitals, who treat
them, is also unenviable. They are overworked, understaffed, with little or
no diagnostic or surgical facilities and limited choice of medicines and
treatment procedures. They have to improvise with virtual non-existent
facilities and limited dubious medicines. They are required to be
committed, service oriented and non-commercial in outlook. What choice
of treatment can these doctors give to the poor patients? What informed
consent they can take from them?
27. On the other hand, we have the Doctors, hospitals, nursing homes
and clinics in the private commercial sector. There is a general perception
among the middle class public that these private hospitals and doctors
prescribe avoidable costly diagnostic procedures and medicines, and
subject them to unwanted surgical procedures, for financial gain. The
public feel that many doctors who have spent a crore or more for
becoming a specialist, or nursing homes which have invested several
crores on diagnostic and infrastructure facilities, would necessarily
operate with a purely commercial and not service motive; that such
doctors and hospitals would advise extensive costly treatment procedures
and surgeries, where conservative or simple treatment may meet the need;
and that what used to be a noble service oriented profession is slowly but
steadily converting into a purely business.
28. But unfortunately not all doctors in government hospitals are
paragons of service, nor fortunately, all private hospitals/doctors are
commercial minded. There are many a doctor in government hospitals
withstanding the logical analysis, the court would be entitled to hold
that the body of opinion is not reasonable or responsible.
In Indian Medical Association vs. V. P. Shantha - 1995 (6) SCC 651, this
Court held :
"The approach of the courts is to require that professional men should
possess a certain minimum degree of competence and that they should
exercise reasonable care in the discharge of their duties. In general, a
professional man owes to his client a duty in tort as well as in contract
to exercise reasonable care in giving advice or performing services".
Neither Achutrao nor Vinitha Ashok referred to the American view
expressed in Canterbury.
26. In India, majority of citizens requiring medical care and treatment
fall below the poverty line. Most of them are illiterate or semi-literate.
They cannot comprehend medical terms, concepts, and treatment
procedures. They cannot understand the functions of various organs or
the effect of removal of such organs. They do not have access to effective
but costly diagnostic procedures. Poor patients lying in the corridors of
hospitals after admission for want of beds or patients waiting for days on
the roadside for an admission or a mere examination, is a common sight.
For them, any treatment with reference to rough and ready diagnosis
based on their outward symptoms and doctor’s experience or intuition is
acceptable and welcome so long as it is free or cheap; and whatever the
doctor decides as being in their interest, is usually unquestioningly
accepted. They are a passive, ignorant and uninvolved in treatment
procedures. The poor and needy face a hostile medical environment -
inadequacy in the number of hospitals and beds, non-availability of
adequate treatment facilities, utter lack of qualitative treatment,
corruption, callousness and apathy. Many poor patients with serious
ailments (eg. heart patients and cancer patients) have to wait for months
for their turn even for diagnosis, and due to limited treatment facilities,
many die even before their turn comes for treatment. What choice do
these poor patients have? Any treatment of whatever degree, is a boon or
a favour, for them. The stark reality is that for a vast majority in the
country, the concepts of informed consent or any form of consent, and
choice in treatment, have no meaning or relevance.
The position of doctors in Government and charitable hospitals, who treat
them, is also unenviable. They are overworked, understaffed, with little or
no diagnostic or surgical facilities and limited choice of medicines and
treatment procedures. They have to improvise with virtual non-existent
facilities and limited dubious medicines. They are required to be
committed, service oriented and non-commercial in outlook. What choice
of treatment can these doctors give to the poor patients? What informed
consent they can take from them?
27. On the other hand, we have the Doctors, hospitals, nursing homes
and clinics in the private commercial sector. There is a general perception
among the middle class public that these private hospitals and doctors
prescribe avoidable costly diagnostic procedures and medicines, and
subject them to unwanted surgical procedures, for financial gain. The
public feel that many doctors who have spent a crore or more for
becoming a specialist, or nursing homes which have invested several
crores on diagnostic and infrastructure facilities, would necessarily
operate with a purely commercial and not service motive; that such
doctors and hospitals would advise extensive costly treatment procedures
and surgeries, where conservative or simple treatment may meet the need;
and that what used to be a noble service oriented profession is slowly but
steadily converting into a purely business.
28. But unfortunately not all doctors in government hospitals are
paragons of service, nor fortunately, all private hospitals/doctors are
commercial minded. There are many a doctor in government hospitals
