Dr K K Aggarwal
President Confederation of Medical Associations of Asia and Oceania, HCFI, Past National President IMA, Chief editor Medtalks
787: Round Table Expert Meet of Medical Liability in COVID Era
May 2, 2020 , 11am- 12 noon
Dr KK Aggarwal, President CMAAO
Dr Rajan Sharma, National President IMA
Dr RV Asokan
Dr Jayakrishnan Alapet
Dr Girish Tyagi
Dr Ashok Gupta
Dr PN Arora
Dr Narasinga Reddy Toutireddy
Dr Raman Kapur
Dr Marthanda Pillai
Shobha Mishra Ghosh
Prof Mahesh Verma
Dr Omkar Gokhale
Dr Shiv Kumar Utture
Dr Anoop Misra
Dr Ambrish Mithal
Dr Narottam Puri
Dr LK Bharti
Dr NK Pandey
Dr Ashok Gupta
Dr Alok Roy
Dr Harsh Mahajan
Dr Gangadhar Rao
Dr Mohsin Wali
Dr Suneela Garg
Dr AK Agarwal
Dr Sudhanva Kariganoor
Dr Angeli Misra
Dr Alexander Thomas
Dr DR Rai
Dr Arnab Gupta
Dr Gyani Girdhar
Dr JA Jayalal
Dr Naveen Malhotra
Dr Prabhakara GN
Dr Jaya Dhaka
Dr Atul Pandya
Dr Mahima Gupta
Dr NK Pandey
Mini Thomas, The Week
Dr Ganesh K Mani
Dr Maulik Vyas
Dr Apurva IE
Dr Shashank Joshi
Ms Ira Gupta
Dr K Kalra
Dr Sanchita Sharma
Justice AK Sikri, Retd. Supreme Court Judge
Mr Mukul Rohatgi, Former Attorney General for India
Acts currently applicable during the Covid pandemic are the Disease Management Act, 2005 at the national level and the Epidemic Diseases Act, 1897 at the state level.
The Epidemic Diseases Act, 1897 has not been revised till date.
Section 2A of the Epidemic Diseases Act, 1897 states: “When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.” It uses the words “dangerous epidemic disease”, but the Act does not define either “dangerous” or “epidemic”.
Under Section 4 of Epidemic Act, “no suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act”. But it’s not clear if medical professionals are covered under this. Also, the meaning of the words “good faith” needs to be clarified.
The Disaster Management Act, 2005 defines disaster in Section 2(d) as “a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes…”. Covid-19 has been included as a “Notified Disaster” or as a “critical medical condition or pandemic situation”.
Section 74 of the Disaster Management Act provides immunity from legal process, but only to “Officers and employees of the Central Government, National Authority, National Executive Committee, State Government, State Authority, State Executive Committee or District Authority in regard to any warning in respect of any impending disaster communicated or disseminated by them in their official capacity or any action taken or direction issued by them in pursuance of such communication or dissemination”. Again, it does not cover healthcare professionals.
Section52 of the Indian Penal Code (IPC) defines good faith as “nothing is said to be done or believed in “good faith” which is done or believed without due care and attention”.
Section 270 is applicable to Covid, which is “Malignant act likely to spread infection of disease dangerous to life.—Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
The United States has come out with legislations granting immunity to HCPs during Covid-19.
Section 3215 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act establishes a specific limitation on liability for "volunteer" health care providers during the COVID-19 emergency declaration. With certain exceptions, it provides that such providers "shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services" during the COVID-19 public health emergency. In addition to volunteer status, the services being rendered must be within the scope of the provider's license (including applicable state law emergency expansions of scope of practice). Providers are not protected from liability for harm resulting from the provider's willful or criminal misconduct, gross negligence, reckless misconduct, or "conscious flagrant indifference" to the patient's rights or safety. Further, providers are not protected from claims resulting from care given while the provider is under the influence of drugs or alcohol.
Another law in the US, the Public Readiness and Emergency Preparedness (PREP) Act provides that a "covered person," including a qualified person who prescribes, administers, or dispenses "pandemic countermeasures," "shall be immune from suit and liability under Federal and State law with respect to all claims for loss covered by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure" during a declared disease-related public health emergency.
Besides these two Federal laws, various states in the US may have provisions that limit or immunize providers from liability.
Following queries and concerns of doctors were highlighted during the discussion
1. Definition of “good faith” mentioned in the Epidemic Disease Act (Section 4), Disaster Management Act (Section 73) and its implication.
2. Immunity from legal process”: Disaster Management Act (Section 74) and its implication
3. Are healthcare professionals covered under Epidemic Act, 1897 and Disaster Management Act, 2005? If yes, can they take defence of work done under good faith?
4. Are healthcare professionals who are not treating COVID-19 patients covered under Epidemic Act, 1897 and Disaster Management Act, 2005? ? If yes, can they take defence of work done under good faith? E.g. doctors are not able to attend to their non-Covid-19 patients properly due to lockdown limitations as many clinics are closed, patients are afraid to come to hospitals.
5. If answers to Queries 3 and 4 are “no”, then what are the available remedies and defences for HCPs? Can the government include HCPs under these two acts by passing some order or clarification?
6. Can a separate legislation be enacted by Government of India just like USA giving immunity to healthcare professionals during COVID period? If yes, then what is the procedure?
7. What are the immunities available to healthcare professionals under Epidemic Act, 1897 and Disaster Management Act, 2005 during lockdown period and after that?
8. Can healthcare professionals be included under Section 74 of the Disaster Management Act, 2005 and get complete immunity from any liability for any act during COVID period? If yes, then what is the procedure?
9. Are the Epidemic Act, 1897 and Disaster Management Act, 2005 applicable till the lockdown period or till the eradication of COVID-19 from the country?
10. What law will prevail once Epidemic Act, 1897 and Disaster Management Act, 2005 are lifted from the country?
11. Will the Epidemic Disease Act be applicable in Green Zones?
12. Testing: Doctors have the right to ask for Covid test for patients scheduled for chemotherapy or non-elective surgery or for non-Covid illness. But, the government says that hospitals cannot insist on Covid-19 testing as it will be considered a crime. Doctors themselves need to be tested for Covid-19. Italy has made it compulsory for all doctors to undergo weekly Covid test and state their positive or negative status.
· Disaster Management act does not provide immunity to the medical profession. It provides immunity only to the officials of the authority mentioned in the section. Likewise, the Epidemic Disease Act also does not protect the private doctors.. The question of “good faith” and other questions will arise only when doctors are covered by these Acts.
· Justice AK Sikri expressed his “pain and anguish” that doctors themselves are struggling to find ways out to not be harassed or persecuted by their patients. Under the existing environment today, doctors need all kinds of protection.
· Once a case is filed against a doctor, under ordinary law, he/she will have to defend the complaint and establish that the action was in good faith and he/she was not negligent. If the doctor has acted in a certain manner as per the government instructions, this may become a clear defense.
· The American laws, not only the Central Act but also the state acts (Louisiana, Georgia, Maryland, and Tennessee) provide immunity to doctors from civil and criminal negligence unless they have wantonly or negligently treated their patients.
· Just as the government has added a section in the Epidemic Diseases Act, 1897 by an Ordinance providing for punishment, if there is an act of violence against doctors and paramedical workers, in the same way, Section 74 can be amended or a new section can be added at the time when the Disaster Management Act is in operation by a notification.
· Just as the issue of violence has been addressed, this issue has to be addressed. But for that it has to be shown that unnecessary willful, malicious threats or complaints have been initiated against doctors during the pandemic.
· The court does not have the power to direct the government to pass a law; this is the preserve of the government or the Parliament. But the Court can make a recommendation to the government to urgently look into this matter and address/redress the issue. This will be useful not only in this pandemic but also in future such pandemics or epidemics.
· Doctors can and should insist on Covid test as the result of the test may have an impact on the treatment protocol. For instance, the surgery, if not an emergency, can be postponed. Also, persons in contact with the patient need to be quarantined.
· There should be en masse testing of medical professionals/paramedical workers for Covid, as they are the ones treating the patient and so can be carrier themselves. The medical council can forward a protocol in this regard to ICMR or the government (State or Central).
Further course of action
Immunity for medical professionals is the need of the hour in this time of Covid-19. This is a difficult time. There are going to be mistakes, which are beyond the control of doctors, since it is a totally new disease. Doctors and other healthcare workers are at the forefront of this battle to fight Covid-19. Private healthcare takes care of about 75% of health needs of the country. Doctors and support staff are facing difficulties on account of contradictory orders of the government. Guidelines are not clear.
· In view of this, it was decided to file a representation to the Prime Minister/Health Minister in this regard citing all instances of complaints or malicious actions against HCPs along with list of apparent contradictions and inconsistencies in government directives.
· If the Government does not respond, then the petition would be filed in the Supreme Court of India.
· The draft petition would be first vetted by Mr Mukul Rohatgi.
· Consent of all associations and organizations to be taken individually.
· Copy of the petition to be marked to the Board of Governors and all State Medical Councils.
One US national plaintiff attorney malpractice firm has been advising the public to be on the lookout for certain types of medical negligence that could occur during this crisis and that might be grounds for making a claim:
Alleged failures of hospitals to prepare for and respond appropriately and timely to coronavirus patients;
The negligent failure of hospitals and other healthcare providers to timely diagnose the coronavirus in patients;
The negligent failure to take appropriate precautions to prevent or limit the exposure to and spread of coronavirus among patients not infected;
The negligent failure to timely and appropriately treat coronavirus patients; and
Negligent failures that result in the delay of unrelated treatments and procedures that cause harm to patients.