The dentist's Handbook

Exploring the Emerging Domain of Dental Negligence

Abstract

Medicine is of all the arts the most noble;

but, owing to the ignorance of those who

practise it, and of those who, inconsiderately, form a judgment of them,

it is at present far behind all the other arts.

-Hippocrates

Every aspect of human activity is influenced by law and dentistry in this regard is no exception. A dentist while providing oral healthcare to patients has to follow certain standards to avoid any litigation in the name of malpractice. Inadequate knowledge regarding the medicolegal aspects halts the effective delivery of oral health-care services. A dentist is bound by law and ethics while providing treatment to patients. Negligence is a breach of legal duty and care that a dental professional has toward his patients. It is necessary that a patient should be aware of complete information regarding the treatment to avoid any clauses of negligence against the doctor even if there is no contract between them. The two main categories under which health-care malpractice can be challenged in court of law is civil and criminal. The third category lies under the Consumer Protection Act 2019 came into force in 2020 in which patient can file lawsuits against the professional services provided by dentists in consumer courts. Studies conducted to assess the level of awareness among the dental and medical professionals have found that they are ignorant about the laws governing their profession. It is essential for health-care professionals to be aware of such laws which would be beneficial not only to the dental professionals and patients but to the society as a whole. Thus, this review provides an overview of negligence, the determination of negligence and its prevention, liabilities of dental professionals which comprehensively form an integral part of the medicolegal aspect of dental practice.

INTRODUCTION

In the growing modern era of medical situations arising and increasing litigation becoming the trend, it would be an appropriate time for medical practitioners to reassess the various forms of liability that can be fastened on them. There are multiple legal avenues that are available to patients to indict their doctors but the converse is not true. Hence, for one incident, a medical practitioner would have to defend themselves before various forums. For instance, a complaint can be made to the employer of the medical practitioner; a compensation case can be filed in a consumer forum; an FIR can be lodged against them under Section 304A of the Indian Penal Code, 1860 (hereinafter, “IPC”); a complaint can be lodged to the state medical council under the Clinical Establishment (Registration and Regulation) Act, 2010, the penalty for which is the cancellation of the registration as provided under Section 32 of the said Act; the National Human Rights Commission can also hear a complaint against the medical council. Despite the existence of concepts such as res judicata and issue estoppel is meant for curtailment of a multiplicity of litigations, Section 100 of the Consumer Protection Act (CPA), 2019, makes it amply clear that the statute is in addition, and not in derogation, of any other provisions of law, thereby allowing repetitive litigations (Sakshat Bansal and Gayatri Puthran, Protection for Medical Professionals, Volume 56, Issue 10, March 6, 2021, Economics and Political Weekly).

It is necessary, as a matter of prudent practice, that before the present article delves into the specific domain of medical negligence and the narration thereof influenced from the lens of a dentist practitioner's perspective, to establish the jurisprudential foundations of the subject of negligence. Alderson defined negligence as “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.”[¹] In Jacob Mathew v. State of Punjab and Another, (2005) 1 MLJ (Crl) 1077, a three-judge Bench of the Supreme Court of India observed affirmatively that the definition that is provided in “Law of Torts” by Ratanlal and Dhirajlal (edited by G. P. Singh) still holds good. According to that, “Negligence is the breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or do something which a prudent and reasonable man would not do” (Law of Torts, Ratanlal, and Dhirajlal, 24th Edition, 2002, edited by G. P. Singh, at pages 441-442). Thus, negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: (i) “duty,” (ii) “breach,” and (iii) “resulting damage” (Jacob Mathew v. State of Punjab and Another, (2005) 1 MLJ (Crl) 1077).

INDIA AND MEDICAL NEGLIGENCE

India adopted the practice of employing the Bolam test for adjudication of medical negligence cases from the United Kingdom. It is a settled proposition that it is the court and not the medical experts that would be determining whether a particular doctor's conduct is negligent; however, the standards of evaluating the expert evidence are still evolving. The Bolam rule has become the standard in medical jurisprudence and has established the foundational understanding of the conduct and level of skill to expect from doctors. This is important because judges and lawyers lack the technical expertise to determine what standards to be applied in any given medical negligence case. Therefore, they must rely on the knowledge of medical experts and this has been facilitated by the law allowing them to refer to expert opinions in accordance with the Indian Evidence Act, 1872. Albeit such expert opinions enable the judges to form the right decision, it must be hastily added that such expert opinions do not usurp the power of the court as the final authority as was held in Dayal Singh v. State of Uttaranchal (2012) (M. P. Ram Mohan and Vishakha, in Medical Negligence and Law, Volume 54, Issue No. 42, October 19, 2019, Economics and Political Weekly).

The Bolam v. Friern HMC (1957) case posited that a doctor must not be held liable if the treatment or course of action carried out by them is considered proper in the opinion of trained medical professionals. In other words, the court changes the classic tort law test of the “average reasonable person” to accommodate the specialization involved in medical treatment and training (M. P. Ram Mohan and Vishakha, in Medical Negligence and Law, Volume 54, Issue No. 42, October 19, 2019, Economics and Political Weekly). An adverse consequence of the Bolam test was that it vested, inevitably, too much power in the hands of the medical professional and subverted the role of the court in adjudicating the case of medical negligence. This happened because the Bolam rule not only prescribed the standards to be adhered to by medical professionals but it also determined whether a particular deviation from a standard conduct, as aforesaid established, would amount to a negligent action or not. To this extent, it usurped the adjudicatory powers of the courts (Brazier, M and J Miola (2000): “Bye-Bye Bolam: A Medical Litigation Revolution?” Medical Law Review, Vol 8, No 1, Spring, pp 85-114.). The Bolam rule was explicitly invoked in the landmark case of Jacob Mathew v. State of Punjab and Another (2005), wherein the Supreme Court observed that “the test for determining medical negligence as laid down in Bolam's case holds good in its applicability in India.” Thus, it was held that the Bolam rule could be used to determine whether a medical practitioner had been negligent and further asserted its applicability in India, and it has been regularly invoked in all medical negligence cases by the courts thereafter.

ELEMENTS OF NEGLIGENCE

Negligence, in the context of the medical profession, necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, especially a doctor, would require additional considerations to apply. A case of “occupational negligence” is different from one of “professional negligence.” A simple lack of care, an error of judgment, or an accident, is not proof of negligence on the part of a medical professional. So long as, a doctor follows a practice acceptable to the medical profession of that day, they cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the aspect of failure of taking precautions, what must be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented that particular incident from occurring cannot be the standard for judging the alleged negligence. Thus, the standard of care, while assessing the practice that is adopted, is judged considering the knowledge that is available at the time of the incident, and not at the date of the trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (i.e., the time of the incident) at which it is suggested that it should have been used (Jacob Mathew v. State of Punjab and Another, (2005) 1 MLJ (Crl) 1077).

A professional may be held liable for negligence based on the following two findings:

1. Either he was not possessed of the requisite skill which he professed to have possessed, or
2. He did not exercise, with reasonable competence in the given case, the skill which he did possess.

The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence (Jacob Mathew v. State of Punjab and Another, (2005) 1 MLJ (Crl) 1077).

Therefore, keeping in mind the above, the tort (civil wrong) of negligence can be established against a dental practitioner only if the following elements are present:[¹]

1. The dentist has a duty to care for the patient
2. A violation of the above duty
3. An injury to the patient
4. A proximate relationship between the violation and the injury.

WHEN IS IT NOT NEGLIGENCE?

Normally, carelessness is not sufficient to suggest culpability or a proper ground for attracting legal liability, as there is no wrongful intention, however, in medical negligence, even carelessness is taken seriously and the law has imposed a duty of carefulness and caution on the doctor or health worker.

The Court in Jacob Mathew case approved of the passages from “Errors, Medicine and the law” by Alan Merry and Alexander McCall Smith which had been cited with approval in the case of Dr. Suresh Gupta v. Government of N. C. T of Delhi, (2004) 6 SCC 422, which highlights the link between moral fault, blame, and justice in reference to the medical professional and negligence. A passage from the same is reproduced due to its relevancy to the issue before us: “Before the Court faced with deciding the cases of professional negligence there are two set of interests which are at stake: the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient is entitled. The effect of this on the doctor-patient relationship is distorting and will not be to the benefit of the patient in the long run. It is also unjustified to impose on those engaged in medical treatment an undue degree of additional stress and anxiety in the conduct of their profession. Equally, it would be wrong to impose such stress and anxiety on any other person performing a demanding function in society. While expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks.”

Thus, it is pertinent to note that many other acts that patients commonly complain about do not fulfill the requirements mentioned above. A review of the diverse spectrum of consumer cases shows that some of the situations mentioned below do not come under the purview of medical negligence:

• Inability to obtain a consent form in an emergency
• Patient's dissatisfaction with the progress of treatment
• Inability to get desired relief
• Precedence of one patient over the other based on priority
• Charging an amount that the patient thinks is exorbitant.[²]

TYPES OF DENTAL NEGLIGENCE

Negligence in diagnosis

Detailed case history and clinical examination are a must before arriving at any diagnosis or any intervention. Failure in recording proper case history, and overlooking any other finding or event related to the patient may lead to negligence in making a diagnosis that is responsible for the course of treatment or nontreatment which ultimately results in damages to the patient especially if a correct diagnosis would have resulted in a different course of treatment with a more favorable result to the patient. Such negligence would then be treated as the proximate cause of the injury for which the damages are sought, and such a claim would be a claim for malpractice.

Furthermore, the dentist should be aware of child, elderly, or spouse abuse and able to identify bite marks during clinical examination when confronted with unusual injuries, especially in cases of persons with accompanying body injuries.[³]

Negligence in investigation

Proper investigation is the key to arriving at a final diagnosis. Before prescribing any investigating procedure, the dentist must weigh the advantages and disadvantages associated with them and should be able to justify them with cogent reasons. Investigation without proper justification may lead to negligence. For example, a radiographic examination involving a higher radiation dose should be considered only when it is needed and necessary. In contrast, when an investigation procedure is genuinely required, then it should not be avoided. For example, blood investigation before any surgical intervention. In addition, it might occasionally occur that a patient refuses to undergo an investigation, for example, an X-ray examination. In such cases, the best advice is to terminate the dentist–patient relationship or if the dentist elects to continue the treatment without X-ray films, he/she should take certain precautions for protection against any future claims made by the patient for malpractice. A dentist should prepare a statement fully disclosing to the patient the risks associated with the treatment if X-ray films are not taken and have the patient sign it.

Negligence in sterilization

Proper asepsis and sterilization protocols, as prescribed by OSHA, should be maintained by the dentist and his office staff. Failure to maintain the desired level of sterilization might lead to the spread of infections and cross-contamination from one person to another/others, which is considered one of the serious cases of dental negligence.[⁴]

Procedural negligence

The first and foremost step before any dental treatment is to take the patient's informed consent. A lack of informed consent is a cause of malpractice action, and without it, battery (unlawful touching) can be alleged.[⁴] In practical terms, this means physically or emotionally harming the patient. If there is a procedure, which has complications or undesirable consequences, that a prudent patient does not anticipate, it is necessary to get informed consent. In the consent, the following elements must be present to qualify as “informed consent:”

• There must be an understanding of the problem, i.e., a diagnosis
• The proposed treatment and any alternative treatments must be fully explained to the patient in the patient's language
• No warranties or guarantees should be given
• Authorization must allow for a change in the plan if an un-proposed or unexpected circumstance arises
• Discussion of all sequelae and side effects of the proposed/current treatment plan must be given to the patient in the patient's language[⁵]
• If the patient is illiterate, then consent should be taken in the presence of a witness. In medico-legal cases, the dentist should either have a court order or legal consent signed by the suspect permitting the dentist to perform the required medico-legal examination. In the case of minors/patients with mental illnesses, the dentist should not even examine the patient before acquiring prior consent from the parent/legal guardian.[⁶]

In a dental setup, different types of treatment, surgical interventions, or procedures are carried out for the management of a dental disease. Any errors or mistakes made during these procedures may cause injury to the patient and result in negligence. Some of the common errors or mistakes that result in negligence include, inter alia, damaging adjacent tooth during cavity preparation, separation of endodontic file while performing root canal treatment, spillage of root canal disinfecting solutions in the surrounding mucosa thereby leading to injury, complications secondary to anesthesia, injury to adjacent nerve or vessel during the surgical procedure, extraction of wrong or adjacent healthy teeth, injury to the patient while impression making, use of expired or low-quality impression materials, accidental drilling of the patient's gingiva during tooth preparation, ill-fitting dentures, crown, and bridges causing injury to healthy oral mucosa or the temporomandibular joint, failure of the implant due to incorrect implant positioning or loosening of the implant due to infection or penetration of the sinus cavity or poor implant maintenance.[⁷]

Negligence in drug management

Along with surgical interventions, medical management plays a key role in a successful treatment plan. Failure to prescribe an appropriate drug due to incomplete medical history and knowledge of pharmacokinetics and pharmacodynamics may lead to negligence. In some cases, where patients suffer from systemic disease and take medications for the same, then drug interactions need to be considered before giving any prescription. For example, prescribing a vasoconstrictor to a patient who is on medication for hypertension may worsen the condition.[⁷] Before dental extraction, a few medication doses need to be altered to achieve the desired healthy state of the patient. For example, patients on an antiplatelet drug like aspirin or steroids would require the medication/course of treatment to be stopped or altered 2–7 days prior to consultation with their physician. Failure to do so may lead to serious health complications and would be considered negligence.[⁸]

When the patient gives a history of drug allergy, it must be accepted as a fact until proven otherwise. To doubt such a history may invite serious trouble. If the patient is absolutely certain of the offending drug, a drug of a different chemical derivation should be used. However, if the patient gives a definite allergic history to a drug and does not know the exact drug, it is better to have the patient tested before proceeding at random with any drug.[⁶] Further, failure in recording a proper allergic history during examination is considered to be lethal negligence.

HOW TO PREVENT DENTAL NEGLIGENCE?

The practice of dentistry is based on five ethical principles which entail, namely, To Do No Harm, To Do Good, Respect for Persons, Veracity, Beneficence, Justice, and is built on important international landmarks such as the Declaration of Helsinki, 1964, Belmont Report, 1979, ICH Good Clinical Practice, 1997, and the Declaration of Geneva.[²] Thus, to prevent dental negligence, these ethical principles should be strictly followed by all dentists.

When patients arrive at a dental clinic, a detailed case history including medical history, dental history, and any other specific episodes of the patients should be noted, and a thorough clinical examination should be performed to arrive at the correct diagnosis. The proper aseptic conditions should be maintained at the clinic to avoid contamination or the spread of infection. While advising any investigatory procedures, the dentist should weigh its benefits over its disadvantages and prescribe only that which is absolutely necessary.

One of the most important legal safeguards as well as an important moral obligation of dentists towards their patients is that of obtaining consent for any course of health care action. During dental procedures, if any errors occur due to the patient's apprehension, faulty machinery, defective materials, incorrect technique, or any unavoidable episodes that may cause harm to the patient and thereby make the treatment unsuccessful should be informed to the patient along with its possible complications rather than hiding it. Further, masking or escaping from such incidence by unethical means should be avoided.

HOW TO DEFEND AGAINST DENTAL NEGLIGENCE?

Health-care malpractice can be challenged under three main categories in the court of law, that is, civil, criminal depending on the nature of the offense, and the CPA, 2019. The Supreme Court of India has observed that the essential components of negligence are three: “duty,” “dereliction,” and “damage” as stated in the law of torts.[¹⁹¹⁰]

Who is liable?

• Dentists with an independent practice that render only free services
• Private hospitals charging all
• All hospitals that have free as well as paying patients; are liable for both
• Doctors/hospitals paid by an insurance firm for the treatment of a client or an employer for the treatment of an employee.

Who is not liable?

• Dentists in hospitals that do not charge their patients
• Hospitals offering free services to all patients.[⁹¹¹]

DENTISTS ARE LIABLE UNDER FOUR HEADS

Dentists can be fastened with liability under the following categories vis-à-vis negligence. The categories are enumerated below:

1. Tortious liability
2. Contractual liability
3. Criminal liability
4. Statutory liability.

Tortious liability (civil liability)

It may be further divided into the following two categories: (a) Primary Tortious Liability and (b) Vicarious Tortious Liability.

Primary tortious liability

When a dentist is directly liable for an act of negligence in his/her clinic or hospital, it is classified as a primary tortious liability. Most dental negligence cases would fall under this category. The remedy for breach of this type of tortious liability is unliquidated damages as awarded by the judge; it is usually in the form of compensation by cash.

Vicarious tortious liability

A dentist who is employed by a hospital or institution is often not primarily responsible for negligence. They may be said to have vicarious tortious liability through the hospital. The hospital has the primary tortious liability for the negligence of an employee. However, if the patient is admitted by a dentist in his personal capacity, then the dentist will be personally liable.

Contractual liability

In a doctor–patient relationship, an implied contract is established when a dentist accepts a patient for treatment. A breach of any aspect of this implied contract, where the dentist is under a duty to treat the patient with care as well as a continuing duty to keep treating the patient and not terminate until the patient is cured or the patient discontinues treatment, may be considered a contractual liability. However, in most instances, if there is no written contract, their liability will essentially lie within the realm of tortious liability.

Criminal liability

Criminal negligence is considered to be a crime that has been committed against the society and not just the aggrieved party, and therefore, similar to all criminal offenses, it is pursued by the State against the accused. This liability normally lies with an identifiable individual or groups of individuals. However, recent trends indicate that hospitals may also be held vicariously liable just as in the case of civil liabilities. Criminal liability is a penal offense and it is provided under the Indian Penal Code of 1860. It entails punishment in the form of imprisonment or fine, or both.[¹⁰]

The jurisprudential concept of negligence differs in civil and criminal law. It is pertinent to note that what may be considered negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher, i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law, however, it cannot form the basis for prosecution (Jacob Mathew v. State of Punjab and Another,(2005) 1 MLJ (Crl) 1077).

In order to prosecute a medical professional for negligence under criminal law, it must be shown that the accused did something or failed to do something, which in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent (Jacob Mathew v. State of Punjab and Another,(2005) 1 MLJ (Crl) 1077).

The important offenses, provided under IPC, inviting criminal liability with respect to negligence are as follows:

Section 304A of Indian Penal Code

Negligent homicide - A rash or negligent act resulting in death. For example, death on the dental chair. In this regard, it should also be noted that the word “gross” has not been used in Section 304A of the IPC yet it is settled proposition that in criminal law, in order for negligence or recklessness to be established, it must be of such a high degree as to be “gross.” The expression “rash or negligent act” as occurring in Section 304A of IPC has to be read as qualified by the word “grossly” (Jacob Mathew v. State of Punjab and Another, (2005) 1 MLJ (Crl) 1077).

Section 336 of Indian Penal Code

An act endangering the life of a person (even if there is no injury). For example, invasive dental procedure on a patient with valvular heart disease without antibiotic prophylaxis against endocarditis (even if he does not develop endocarditis).

Section 337 of Indian Penal Code

A rash or negligent act causing simple injury. For example, pain and swelling after root canal due to negligent treatment.

Section 338 of Indian Penal Code

A rash or negligent act resulting in grievous injury. For example, fracture of jaw during extraction due to excessive or improper force.[⁵¹²]

It is important for the dentist to be aware of these liabilities. It is also important for him/her to understand his/her rights. For example, bail is a matter of right in the above situations and it is to be given by the police officer effectuating the arrest based on the surety given by a colleague. He/she can be given surety on his/her own reputation. The burden of reason for refusing bail rests on the police officer and they will have to provide convincing reasons for not granting bail.[⁵]

The Court in Jacob Mathew case approved of the passages from “Errors, Medicine and the law” by Alan Merry and Alexander McCall Smith, wherein it was put forth that conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Common law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high – a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness.

Further, it is recommended that a preliminary inquiry must be conducted before the lodging of the FIR for such cases, especially because a simple error is not negligence. There must be evidence of “gross” negligence, as was laid down in the case of Jacob Mathew v. State of Punjab and Another, (2005) 1 MLJ (Crl) 1077, which warns about frivolous complaints being filed against doctors. The Supreme Court, in the case of Lalita Kumari v. Govt of UP and Ors. (2008), held that it is “unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint” and in such cases, a preliminary inquiry is required. Further, there must be a clear directive that the police must not harass doctors while conducting such an enquiry (Sakshat Bansal and Gayatri Puthran, Protection for Medical Professionals, Volume 56, Issue 10, March 6, 2021, Economics and Political Weekly).

Statutory liability

A dentist is liable if there is any infringement of the statutes. Thereafter, they become accountable to a statutory body. The liability depends on the kind of infringement and the manner in which the provisions in the statute deal with the liability arising from the infringement of the statutes. There are many statutes regulating/governing the medical practice of doctors and dentists, as well as hospitals. Dentists may also be liable to other statutory bodies such as the Pollution Control Board.

There is a need for maintaining the records officially and professionally to protect oneself against any commercial, legal, and medicolegal litigation. Records constitute the most important factor needed to prevail in a lawsuit.[¹²] Written records, including medical and dental history, chart notes, radiographs, photographs, and models, are the only available guidelines from which to deliberate in a negligent lawsuit and must be meticulously maintained.[¹³] All records must be contemporaneous and must be signed and dated. In law, a dentist's written records carry more weight than the patient's recollections. Dental records are also maintained for forensic purposes. In cases of man-made and natural disasters, these records conform as a useful tool in identifying the individual bodies mutilated beyond recognition.[¹⁴] In addition, in cases where the person has lost their memory or denies identity, records become crucial evidence.

The legal process is difficult and distressing to navigate, so it is best to avoid the rigmarole of the legal process as much as possible. Once a negligent lawsuit is filed against the dentist, a complex legal maze is opened. A dental practitioner would need the help of a competent attorney who specializes in such litigation (medical negligence). The best defense is the preemptive defense where one avoids the lawsuit altogether in the first place.[⁵]

Professional indemnity insurance provides insurance cover to professional people against their legal liability to pay damages arising out of negligence in the performance/discharge of their professional duties. The term “indemnity” means reimbursement or to compensate. The insurance companies not only pay the compensation to the other party but also arranges for legal assistance from advocates. Only civil liability claims are covered. Any liability arising out of any criminal act or act committed in violation of any law or ordinance is not covered.[¹⁵]

There are certain acts that are not covered in case of an indemnity policy issued to medical professionals, which are enumerated below:

• Any criminal act or violation of any act or statute
• Services rendered under the influence of intoxicants or narcotics
• Performance by dentists under general anesthesia or any procedures carried out under general anesthesia unless performed in a hospital
• Wilful neglect or deliberate act
• Third-party public liability
• Pure financial loss due to the loss of goodwill or loss of market ground.[¹⁵¹⁶¹⁷]

CONSUMER PROTECTION ACT, 2019

The CPA, 2019 (hereinafter, “CPA”), came into force in 2020, which replaces the old CPA, 1986, and provides a three-tier quasi-judicial machinery. It provides for a district, state, and national consumer redressal forum. It is not a substitute for an existing civil remedy. It is a fast-lane judicial mechanism to enable speedy justice. It is not bound by extensive formalities that normally govern other judicial forums/courts. The purpose is to dispense quick justice. Plaintiffs have to pay a small court fee. If there is a substantial matter of law or fact, the cases can be moved to a civil court at the instance of either party. Government hospitals are normally not liable under the CPA as they do not charge fees and therefore are exempt. However, if they do charge, they are liable for deficiency of services.[¹]

Medical services were brought within the ambit of the CPA, 1986, in the case of Indian Medical Association v. V. P. Shantha and Ors. (1996). While the list of services mentioned in the CPA did not contain health-care explicitly, it was clarified by the officials that it was merely a “technical amendment” and for all intents and purposes, healthcare falls under the definition of “services” under the CPA (Dash, Dipak K (2019): “Consumer Bill Draft RemovesHealthcare from Services,” Times ofIndia, https://timesofindia.indiatimes.com/india/consumer-bill-draft-removes-healthcare-fromservices/articleshow/69935129.cms.). Further, under Section 2 (42) of CPA, the definition of “service” is not exhaustive and relates to “service of any description which is made available to potential users”. Therefore, it would be safe to conclude that medical services fall within the ambit of “services” under the CPA (Sakshat Bansal and Gayatri Puthran, Protection for Medical Professionals, Volume 56, Issue 10, March 6, 2021, Economics and Political Weekly).

Dental negligence falls under Section 2 (42) of the CPA because the Indian Dentist Act (hereinafter, “IDA”) had no provision to:

• Entertain any complaint from the patient
• Take action against dentist in case of negligence; and
• Award compensation.

Before the enforcement of CPA, cases against dentists were decided by civil courts and even under the Indian Contract Act.[⁵] However, the disadvantage of the latter was high costs and a more time-consuming process.

As provided under Section 69 of CPA, a complaint must be filed within 2 years of the date on which the cause of action arises. As per Section 38 of the CPA, first, a copy of the complaint must be sent to the dentist directing him to give his version within 30 days, which may be extended up to 45 days. After 45 days, if no reply is provided, then the court orders contempt proceedings against the dentist. During their reply, the dentist may deny the allegation of the complaint. The machinery, under Section 38 (7) of CPA, is required to decide the cases speedily, i.e., within 3 months. If, after the conclusion of the proceedings, the District Forum is satisfied that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things:[¹¹]

• To return to the complainant the charges paid
• Pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.

It must be noted that in a false or frivolous case, the defendant (doctor or dentist) can file a case for defamation in a civil court if he/she finds that the intent of the patient was to malign his/her name. Earlier, in a consumer case, the court, under Section 26 of the CPA, 1986, could award damages up to Rs. 10,000/- to the defendant if it thinks that the case filed was a frivolous/vexatious one.[¹] However, the CPA adopts a lenient approach toward frivolous complaints against the doctors. The consequences of frivolous cases pose a very serious problem and have a severe chilling effect on the medical profession. This is because despite exoneration, the injury to the reputation of the doctor/dentist would be irreparable and the accusation itself would be sufficient to jeopardize the career of the doctor/dentist. The CPA removes the provision contained in the CPA, 1986, vide Section 26 whereby a frivolous complaint was subject to a fine up to the extent of Rs. 10,000/- (Sakshat Bansal and Gayatri Puthran, Volume 56, Issue 10, March 6, 2021, Economics and Political Weekly). Due to the gravity of the accusation and the consequent detrimental effect on the medical practitioner's career, it would also enable mischievous elements of society to blackmail doctors/dentists as filing a frivolous complaint attracts no reciprocal deterrent action in the form of fines against such a mischievous element. A puzzling situation becomes apparent when we juxtapose this sad situation with the fact that CPA provides for three tiers of adjudicating forums divided based on the pecuniary jurisdictions, that the regime is encouraging such mischievous behavior. Thus, the increasing pecuniary jurisdiction of the forums coupled with the removal of the provision providing for penalty of frivolous complaints has greatly incentivized such frivolous complaints as it allows the mischievous elements to earn huge sums of money (Sakshat Bansal and Gayatri Puthran, Protection for Medical Professionals, Volume 56, Issue 10, March 6, 2021, Economics and Political Weekly).

In addition to the above, the CPA, vide Section 66, allows for national and state commissions to employ experts or individuals with technical knowledge, however, it does not make the same a mandatory obligation, which is contrary to principles of equity and fairness since it balances the proceedings in favor of the patients and against doctors due to accommodation of biased subjectivity and arbitrariness. Albeit in cases of prima facie negligence, an expert testimony may not be needed due to the act being patently and overtly negligent, i.e., res ipsa loquitur. It is nevertheless desirous in all other cases because the bench is inadequately trained or learned in medical science. It must be noted that expert knowledge gives veridical insights thereby aiding in the arrival of an equitable judgment. Therefore, flowing from the above context, it is evident that such discretionary powers given to the consumer forums can be arbitrarily extensive. The consumer forums can, at its discretion, decide to forfeit the commissioning of expert evidence, leave aside the aspect of adopting such testimony. There are no sanctions that are imposed for not adopting such evidence wherever it is necessary and required. This allows for reductive, common-sensical reasoning that is ill-suited to cases of medical negligence (Sakshat Bansal and Gayatri Puthran, Protection for Medical Professionals, Volume 56, Issue 10, March 6, 2021, Economics and Political Weekly).

CONCLUDING REMARKS

The entire health-care profession should conduct themselves in a manner that satisfies the high ethical and legal standards that is expected of them. The noble profession of health care should strive to render the best possible professional services. The Dental Council of India is responsible to ensure that ethical and legal standards are maintained by all the dental professionals in India. However, individual dentists also have the responsibility to act in the patient's best interest and to provide the highest standards of clinical care.

The aggrieved patients can seek redress from the CPA, 2019 when negligence has been committed by the dentist. However, it would be prudent to suffix our discussion with the observations of the Court in the case of Jacob Mathew v. State of Punjab and Another, (2005) 1 MLJ (Crl) 1077, wherein the Bench stated that “We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.” Views expressed are personal. This document is merely intended for informational purposes and the same should not be construed as a legal opinion.

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