Author: Rajat Singhal.
Ex-Student, B.A.LL.B., (batch of 2020) FIMT School of Law, GGIPU.
Medical Negligence – that’s a great issue for Republicans & you didn’t hear anyone talk about it. -Andrea Tantaros
The expression “medical negligence” is a compendious one, which has appear vogue to talk over with wrongful actions or omissions of experts within the sphere of medication, in pursuit of their profession, while handling patients. It isn’t always an expression defined or spoken anywhere in any of the enacted Indian laws.
This blog seeks to stipulate the essential features of “medical negligence” with minimal usage of legal phraseology. Furthermore, rather exploring the thorny issues adjoining the subject matter, this piece is believed to be informative. It’s supported judicial opinions of the upper courts of India & is restricted to choose judicial opinions instead of being an encyclopedia of authorities. This blog focuses on explaining medical negligence & landmark yet as recent cases in India. This provides information on liability which can be incurred by the victim of medical malpractice. It aims at providing information about the topic to form the most amount of awareness as possible.
What is medical negligence?
The medical community is one in every of the foremost noble also as faithful professions within the globe. However, the disgraceful increase in corporatization & commercialization of the medical profession has made it like several other businesses & also the purpose of the profession has been shifted from service to profit-making. Such circumstances gave rise to unethical practices which further finally ends up in negligence. Therefore, if there's a laxness or negligence on the part of the medical experts within the treatment of a sufferer he shall be made liable under the tortious liability on the bottom of Negligence.
Professional negligence or medical negligence could even clarify as want of logical degree of protection or ability or voluntary negligence on the part of the medical practitioner within the medicament of a sufferer with whom a relationship of the professional attendant is established, soon end in bodily injury or to loss of life. Medical negligence has caused many deaths moreover as adverse results to the patient’s health.
Medicine is one of the noblest professions that need setting a realm that might benefit the victims of varied diseases. It’s not expressed that doctors are negligent or careless but while performing the duty which needs plenty of patience & care, often many practitioners fail or breach their duty towards the patient.
The Supreme Court has redefined ‘medical negligence’ which contains the overdose of medicines, not reveal the patients about side effects of medication, not taking tutelage just in case of severe diseases having high mortality & hospitals not providing facilities that are fundamental for the patients.
Essential Elements of Medical Negligence:
On the thought of several judicial pronouncements, the essential elements of ‘Medical Negligence’, this could be distinguished in brief & into date because it relates to the community, are as follows:
The Doctor must owe the patient a requirement of care;
The Doctor must have committed a breach of that duty; &
The patient must have suffered damages as a result of that breach.
A breach of any of the foregoing duties gives the patient a right to call for action for negligence. A breach of duty is established by a doctor when he fails to perform the standard & degree of care variety of an affordable doctor of his time or as a member of his class.
In Kusum Sharma V. Batra Hospital the SC held that a doctor is usually called upon to adopt a procedure involving the following risk element, but which he honestly believes in providing the following chances of success for the patient rather than a procedure involving a lower risk but higher chances of failure & easily because a doctor, seeable of the extremity of illness, has taken a far better element of risk to redeem the patient out of his/her.
Overview of Consequences:-
The outcome of legally cognizable medical negligence can extensively place into 3 categories:
(i) Criminal liability,
(ii) Monetary liability, &
(iii) Disciplinary action.
Criminal liability could also be fastened under the provisions of the Indian Penal code, 1860 (“IPC”), which are widespread & don’t provide specifically for “Medical Negligence.” For instance, Section 304A of IPC (which deals with the death of somebody by way of any rash or negligent act & leads to imprisonment up to 2 years) is employed to accommodate both cases of injuries caused due to rash & negligent motorcar driving & additionally medical negligence leading to the death of a patient. Similarly, other general provisions of IPC, like Section 337 (causing hurt) & Section 338 (causing grievous hurt), are often deployed in relevance to medical negligence cases.
Civil liability, i.e., monetary compensation is going to be fastened under the final law by pursuing a remedy before a suitable civil court or consumer forums. A measure seeking imposition of the civil liability on the erring medical professional is commenced by way of dependents of the deceased patient or by the patient himself (if alive) to hunt compensation. Doors of permanent Lok Adalats, composed underneath the Legal Services Authority Act, 1987, could be knocked by the manner of litigant seeking relief within the affiliation to services “in a dispensary or hospital” that are considered to be “public utility services” within the rationale therefrom, within which first a conciliation is tried & thenceforth determination on merits of the matter is created. Permanent Lok Adalats have conferred ability just like that of a civil court in specified matters (such as summoning & enforcing the attendance of witnesses) & have jurisdiction within the matters up to Rs. 1 Crore.
Another consequence of medical negligence can be within the shape of the imposition of penalties under disciplinary action. Professional misconduct by medical practitioners is controlled by the Indian Medical Council (IMC) (Ethics, Professional Conduct, & Etiquette) Regulations, 2002, made under the IMC Act, 1956. Medical Council of India (MCI) & also the acceptable State Medical Councils are empowered to need disciplinary action whereby the name of the practitioner could also be removed forever or be suspended. Professional misconduct is, however, a broad term that may or won't include medical negligence within its fold. For instance, within the context of advocates, it’s not only expert misconduct but other misconduct also which may end in the imposition of disciplinary penalties, as an instance, violation of prohibition on liquor under Bombay Prohibition Act, 1949, by the advocate; & perhaps a corollary could even be prolonged for cases of medical negligence by medical professionals.
When does Liability arise?
The liability of the doctor doesn't arise when the patient has suffered any injury, which has fallen below that of due care. In other words, the doctor isn't chargeable for any injury suffered by the patient which isn't caused by the doctor. He’s liable just for those that are the results of a breach of his duty. Thus, once the existence of an obligation has been established, the burden of proof lies on the plaintiff to prove the breach of duty & also the reason behind the requirement.
In medical negligence, with relevancy the reason behind injury, the court said that the foremost predictable reason for the injury should be the breach of duty on the part of the doctor. The court will reject the claim if the breach of duty is one in each of the causes of the injury.
In some landmark cases, the court said that if the patient was injured not by the doctor but by any other person, the doctors were held liable. The requirement for such responsibility may arise if the person committing the act cannot owe the patient an obligation of care in any respect or if he has not violated any duty in committing the act.
The Constitutional perspective of Right to Quality Medical Care
The Constitution of India not solely provides for the health care of the individuals however cojointly directs the State to need measures to boost the condition of health care of the people. The preamble to the Constitution of India secure for its entire citizen's justice social & economic. The Constitution provides a framework for the achievement of the target laid down within the preamble.
In The State of Punjab v. Mohinder Singh Chawla, it had been declared that since the right to health was an integral part of the right to life the govt. incorporates a constitutional obligation to produce health facilities. Similarly in Mr. ‘X’ v. Hospital ‘Z’ the SC held that the right to life includes the right to lead a healthy life to enjoy all facilities of the human body in their prime condition.
In a similar view, in Chameli Singh v. State of U.P, it was held that the right to life implies the right to food, water, decent environment, education, medical care & shelter. These are basic human rights familiar to any civilized society. The civil, political; social & cultural rights enshrined within the Constitution can’t be exercised while not these basic rights.
Remedies & Actions
Various remedies accessible to patients underneath various laws in India may be summed up as under:
i) Compensatory action
Involving complaints against doctors, staff, or hospitals whether or not private or government hospitals who committed negligence seeking monetary compensation before the Civil Court underneath the Law of Contract or law of Torts, HC under the constitutional law, or Consumer Courts under Consumer Protection Act (Institutional liability & Individual or hospital liability).
ii) Punitive action
Involve filing a criminal complaint under the IPC against the doctor.
Criminal Negligence under Section 304-A of the Indian Penal Code (45 of 1860)
To impose criminal liability under Section 304-A of Indian Penal Code, it’s necessary that the death ought to are the direct results of a Rash & Negligent Act of the suspect & that the act should be the proximate & economical cause while not the intervention of another’s negligence. It should be the causa causans (immediate or operative cause); it’s not enough that it should be a causa sine qua non (a necessary or inevitable cause). That’s to mention, there should be a direct nexus between the death of an individual & Rash & Negligent Act of the suspect. The doing of a Rash or Negligent Act, that causes death, is that essence of Section 304-A. There’s a distinction between a Rash Act & a Negligent Act. ‘Rashness’ means an act finished with the consciousness of a risk that evil consequences can follow. (It’s an act done with the knowledge that evil consequence will follow however with the hope that it’ll not). A rash act implies an act done by an individual with recklessness or indifference as to its consequences. A negligent act refers to an act done by an individual while not taking spare precautions or affordable precautions to avoid its probable mischievous or illegal consequences. It implies an omission to try something that a reasonable man, within the given circumstances, wouldn’t do. Rashness may be a higher degree of negligence. The rashness or negligence should be of such nature to be termed as a criminal act of negligence or rashness. Criminal rashness is ensuing into a dangerous or wanton act with the information that it’s therefore, & that it should cause injury, however, while not an intention to cause injury or information that it’ll most likely be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference on the results. Criminal negligence is that the gross & culpable neglect or failure to exercise that affordable & correct care & precaution to protect against injury either to the general public usually or to an individual specifically, which, having relation to all the circumstances out of that the charge has arisen, it had been the imperative duty of the accused person to possess adopted.
iii) Disciplinary Action
The Complaint before the Medical Council of India
The Medical council of India grants recognition to medical degrees granted by universities or medical institutions in India & such other qualifications granted by medical institutions in foreign countries. It lays down & prescribes the minimum standards of medical education needed for granting recognition to the degrees awarded by Universities in India. Moreover, the Council is authorized to own disciplinary control over the medical practitioners together with the ability to get rid of the names of medical practitioners permanently or for a specific period from the medical registers when after due inquiry they’re found to have been guilty of significant skilled misconduct.
iv) Recommendatory Action