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
The Complaint before the Human Rights Commission
Irrespective of the various remedies medical negligence & medical malpractice mentioned above, there’s yet an alternative mechanism for the protection of patients’ rights underneath the National & State Humans Rights Commission (NHRC & SHRC). Every patient regardless of its caste, creed, religion, economic status enjoys numerous Human Rights together with Right to Life. Human Right Commissions at national & state level protects are a guardian of those rights. For instance, NHRC/SHRC will hold the state accountable for violations of the human rights of patients. NHRC will play a vital role in the achievement of national & international human rights norms. The Patient will file complaints relating to a violation of human rights before NHRC/SHRC as the case may be. NHRC/SHRC then seeks explanations from the govt. for such violations & may also initiate proceedings together with an independent investigation, issuance of summons to witness, an examination on oath, etc. Thus, NHRC/SHRC is endowed with the powers of a Civil Court. It persuades the state to pay compensation to the victims, the patients in the present case & also recommends for the grants of immediate interim relief to the victim or his/her family.
Its time in India makes effective legal machinery to forestall medical malpractices by the doctors intentionally or under the title of negligence. Medical practitioners, hospitals are committing the right violation on a routine with little or masses. They need to be assured “god-like” disposition to try & do anything including depriving people of their basic right to health care.
The foregoing discussion reflects that how a patient who intends to sue the doctor or hospital for medical negligence may resort to different mechanisms available under the Constitution & various statutes. In our country, there's no specific law that exclusively deals with the rights & obligations of the health care providers & patients. Someone can get remedies for medical negligence under the Indian Constitution for safeguarding his right to health or can get compensation under the patron Protection Act, 1986. When a breach of this right occurs, the health care provider is held chargeable for negligence. Also, somebody whose rights are infringed can move the Supreme Court under article 32 of the Constitution.
In India, we will see a case involving medical negligence almost every day. It’s seen within the nig additionally as within the small hospitals, clinics, dispensaries, etc. because of this an outsized number of individuals are suffering in our country. Our country is facing a horrible time these days since doctors also are taking advantage of poor people & are making their service sector, a profit-oriented sector & converting their vision from providing valuable medical services to gaining income from innocent individuals. People in our country are already victims of the many diseases & are dying because of the identical, we must always make efforts to scale back these deaths & target improvising the profession so that people don't die within the place where they are available to urge healed.
In my opinion, if the citizens of our country with the support of the govt. Impose rules on these hospitals & also see thereto that these rules are being properly implemented then there's an opportunity that the standards of our hospitals would improve & as a result the skill & knowledge of specialized & authorized doctors would be wont to the fullest.
 Blyth v. Birmingham Waterworks Co., 1856 11 ex. 781.  (2010) 3 SCC 480  Consequences of violating specific statutory provisions providing impermissible acts more precisely such as those under the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, are not included in this category.  Section 304 A, IPC reads as, “304 A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”  Section 337, IPC reads as, “337. Causing hurt by act endangering life or personal safety of others.—Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.”  Section 338, IPC reads as, “338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”  Chapter VI A dealing constitution of the permanent lok adalats was inserted by way of Legal Services Authorities (Amendment) Act, 2002 w.e.f. 11.06.2002. Section 22C (1) of Legal Services Authorities Act, 1987 (as amended) read with notification number S.O. 803(E) dated 20.03.2015 issued by the Ministry of Law and Justice provides the jurisdiction of permanent lok adalats up to Rs. 1 Crore. The challenge to the constitutionality of the permanent lok adalats and their powers to adjudicate on merits was declined by the Supreme Court in 2012 in Bar Council of India v. Union of India (2012) 8 SCC 243.  Section 20A of the Indian Medical Council Act, 1956, reads as follows: “20A. Professional Conduct. 1. The Council may prescribe standards of professional conduct and etiquette and a code of ethics for medical practitioners. 2. Regulations made by the Council under subsection (1) may specify which violations thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct and such provisions shall affect anything contained in any law for the time being in force.”  In Mr. D, An Advocate of the Supreme Court, AIR 1956 SC 102.  (1997) 2 SCC 8371.  A.I.R. 1999 SC 495  A.I.R. 1996 SC 1051
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