As the licensing authority, Medical Councils act as custodians of medical practitioners, ensuring they adhere to professional and ethical standards. However, their role should also encompass protecting practitioners from unfair treatment. 

• Q. Vicarious liability: Master is liable for the acts of his employees and subordinates. The Captain-of-a-ship doctrine. In modern private hospitals today, the specialist consultants work under fee-for-service contract. They are neither employees nor subordinate of the administrative head of the hospital – CEO, Medical Director, Medical Superintendent. Yet, for the acts of these independent consultants, the administrative head, and through him the hospital, is held vicariously liable for their acts of negligence. What is the legal premise for it? Legally, I understand the consultants are treated as licensee. Is this the correct position?
   
• Response: You've highlighted a key issue in modern healthcare: the application of the "Captain of the Ship" doctrine in medical malpractice cases. This doctrine, originally from maritime law, holds that the lead surgeon (or "captain") is responsible for the actions of their medical team during a procedure.
  • In private hospitals today, specialist consultants often work under fee-for-service contracts and are not direct employees of the hospital. Despite this, the administrative head (such as the CEO, Medical Director, or Medical Superintendent) and the hospital can still be held vicariously liable for the negligence of these independent consultants.
  • The legal premise for this is rooted in the principle of respondeat superior, which holds employers liable for the actions of their employees performed within the scope of their employment. Even though the consultants are not direct employees, the hospital may still be seen as having control over their work, making the hospital vicariously liable for their actions.
  • Your understanding is correct: legally, these consultants are often treated as licensees, and the hospital can be held vicariously liable for their acts of negligence.
     
• Q. All registered medical practitioners are licensees of the Medical Council. Then why is the Medical Council not held liable for the acts of its licensees? They certainly are responsible. The Council is provided with disciplinary powers to hold its licensees accountable for their professional misconduct. These powers are to reform the defaulter. Yet, most of the State Medical Councils' Disciplinary Boards function as Consumer fora to treat every deficiency, deviation or delinquency as medical negligence. Negligence is not the purview of Disciplinary Boards. If they find a registered medical practitioner guilty of medical negligence, then when the case goes to a regular court of law, should the Court not hold the Council liable for the acts of its licensee, under the vicarious liability doctrine?
   
• Response: You've raised a thought-provoking question about the responsibilities and liabilities of Medical Councils.
  • Distinction in Roles and Responsibilities
    • Medical Councils' Role: The primary role of Medical Councils is to regulate the ethical and professional conduct of registered medical practitioners. They are granted disciplinary powers to uphold the integrity and professionalism of the medical community.
       
    • Their focus is on reforming practitioners who violate professional standards, ensuring that they adhere to the ethical guidelines and maintain the required professional conduct.
       
  • Vicarious Liability Doctrine: The doctrine of vicarious liability typically applies to employers who are held responsible for the actions of their employees performed within the scope of their employment.
  • Medical Councils do not function as employers of registered practitioners but rather as regulatory bodies overseeing professional standards.
     
  • Legal Premise for Liability
    • Non-Employer Relationship: Medical Councils do not have a direct employment relationship with practitioners. They provide licensure and set standards but do not control the day-to-day clinical decisions or actions of individual practitioners.
    • Consequently, they are not vicariously liable for the clinical acts of their licensees. The responsibility for clinical competence and adherence to the standard of care lies with the individual practitioners.
       
  • Disciplinary Actions vs. Legal Liability: Disciplinary Boards of Medical Councils are tasked with addressing professional misconduct and unethical acts as per the codified regulations.

When harm occurs due to medical negligence, it falls within the jurisdiction of civil courts to adjudicate and award compensation. The court may consider the findings of the Medical Council, but it does not hold the Council liable for the practitioner's actions.

Need for Clarity

Function of Disciplinary Boards

• Disciplinary Boards must focus on addressing professional misconduct and ethical breaches without overstepping into adjudicating medical negligence.
• Clear guidelines and delineation of responsibilities can help prevent role conflation and ensure fair treatment of practitioners.
• Medical Councils are responsible for maintaining professional standards and disciplining practitioners for misconduct. However:
  • They are not held vicariously liable for the clinical actions of their licensees.
  • The adjudication of medical negligence falls under the purview of civil courts.
• The importance of clear boundaries and responsibilities in regulatory and legal frameworks governing medical practice is paramount.
   

Question:

The Medical Council is the custodian of medical practitioners as their licensing authority. Should it:

• Step in to protect its licensees against excesses committed by Consumer Fora or the yellow media?
• Provide provisions for medical practitioners to approach the Council when faced with excesses or frivolous complaints?
• Take up issues when all registered medical practitioners are held criminally liable under Section 106(1) of the Bharatiya Nyaya Sanhita for their medical acts?
   

Response:

• Role of the Medical Council:
  • Custodianship: Medical Councils should protect practitioners from unfair treatment while ensuring adherence to professional and ethical standards.
  • Protection Against Excesses:
    • Consumer Fora: Mechanisms to review excessive or frivolous complaints can help prevent undue penalization.
    • Media: Safeguarding practitioners' reputations from unwarranted media attacks is essential.
• Provision for Appeals:
  • Allow practitioners to approach the Medical Council for support against frivolous complaints.
  • Provide legal support for practitioners facing criminal liability under Section 106(1) of the Bharatiya Nyaya Sanhita.
• Ensuring Fairness:
  • Adopt a balanced approach that holds practitioners accountable while protecting them from unjust accusations.
  • Establish clear guidelines and support mechanisms to handle undue pressures and complaints.
     

Another Question:

Should Disciplinary Boards of Medical Councils adopt an adversarial stance against practitioners?

• Key Points:
  • Disciplinary actions should focus on reforming practitioners, not punishing them for established negligence.
  • Such actions should not be misused as expert opinions in Consumer Courts to support negligence claims unfairly.
  • Disciplinary Boards must aim to reform practitioners rather than deliver retributive justice.
     

Suggested Titles:

• Medical Profession Oversight: The National Medical Commission's Impact
• The National Medical Commission: Beyond the Myths
• Understanding the National Medical Commission's True Role
• The National Medical Commission: Myth, Reality, and Its Impact on Medical Practice

Written By: Dr Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
Ph no: 8003516198   email: kabrasg@hotmail.com