What it means?
The medical profession is considered as the noblest and altruistic form of profession but unfortunately not exempted from ill practices which have put the lives of innocent patients in peril. Medical negligence in the healthcare sector is a serious issue faced by citizens in our nation. There have been multiple cases reported across the nation about for instance treatment given by an incompetent doctor or mishandling of patients by the doctors or even the medical staff members. Adding misery to the present situation proving medical negligence is an uphill struggle. But in recent years, public awareness about such negligence is growing.
The expression of medical negligence in simple words means an act or failure to do an act by a medical professional not according to the prescribed standard rules or norms. Negligence in the general sense means an omission to do something which a reasonable or prudent man is expected to do.
In criminal terminology criminal negligence is the gross and culpable neglect or failure to exercise that reasonable or proper care and precaution to guard against injury either to the public generally or to an individual, which having regard to all circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. A medical professional owes a duty of care towards its patients and if he fails to do so then it comes under the purview of medical negligence.
Essential Elements to Constitute Negligence
Negligence contains three major components-A legal duty of care to the complaining party by the defaulting party and the conduct or misconduct must have been done within the scope of duty by the defaulting party, breach of the said duty, and lastly, damages caused.
To file an action of the cause against the defendant, the plaintiff has to prove three ingredients that makeup negligence.
- Existence of duty of care to the plaintiff by the defendant
- breach of that duty
- damages suffered thereof as a consequence
In the context of medical negligence, a medical professional owes a duty of care towards its patients, and breach of that duty by omission or misconduct could result in irreparable damages or injury for which he would be liable to pay compensation.
Negligence by Professionals
The term professional means a person who makes his/her livelihood from a particular professional activity. This means that person has acquired requisite education, knowledge, and skills to practice a particular role in that profession. These professionals are under strict obligation to abide by the norms, standard method, moral and ethical code. While performing any profession or skill that person is expected to follow the rules and take responsibility with due care under his watch. Examples of these professionals are doctors, architects, lawyers, players, etc.
In the landmark judgment by Supreme Court, Jacob Mathew v. State of Punjab[1] held that a professional is practicing a particular profession is deemed to have sufficient knowledge and a certain set of skills, and expected to take reasonable care while practicing it. If he fails to take care or due responsibility for his acts then he would be held liable for the breach of duty thereof. Hence the failure to act in accordance with a set of standards to be followed by any ordinary professional would amount to professional negligence liable under the law.
Popularly known as the Anuradha Saha case, Kunal Saha v. AMRI (Advanced Medical Research Institute)[2] expanded the horizon of medical negligence and gave different approaches to the treatment of these cases. The facts of this case are there was a woman name Anuradha Saha who was suffering from severe allergies. Three senior doctors administered her and prescribed her the medicines which alleviated her worsening condition and ultimately she died. Her death was the result of the wrong medicines prescribed to her. The Apex court held that doctors were negligent and ordered compensation of 6.08 crore to the victims’
The facts are that Mrs. Saha was suffering from a drug allergy. When she went to this hospital, these three doctors prescribed a medicine that further aggravated her condition and she died. The Supreme Court gave the judgment in 2013 and ordered a compensation of 6.08 crore to the victim. This very case expanded the scope of medical negligence in India and gave it a new dimension.
Medical Negligence and Consumer Protection Act
Medical profession also comes within the purview of consumer protection law since medical negligence is also considered as a type of deficiency in service to a consumer that is a patient who needed medical treatment or consultation. It is quite similar to torts but here liability is stringent as if reasonable care or skill applied by the competent doctor is not applied he would be answerable under the consumer act. Even though the work of a medical professional is extremely difficult hence the liability imposed is made in accordance with the optimum possible protection.
Certain exceptions to the liability of the doctors in India were given in the judgment of Indian Medical Association vs V P Santha,[3] if a doctor doesn’t charge the fees from the patient then no liability arises in case of any deficiency in the service rendered. Thus if the treatment is given free of cost in any government hospital, private hospitals, health clinics, nursing homes, etc. would not be considered a “service” as envisaged in S.2 (1) (0) of the Consumer Protection Act, 1986.
No human is perfect and is susceptible to make mistakes. Any specialist or experienced doctor could make errors while diagnosing or treating any disease. He can only be held liable if doesn’t act with reasonable care which could have been ordinarily taken care of. To make a doctor accountable for negligence can only be done if the defendant can prove that if an error is made without complying with a set of standard skills.
In Dr. Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole[4], the Supreme Court held that if a doctor has adopted a practice that is “proper” and up to the standard of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong.
Medical Negligence and Civil Law
The present position of civil law is important and a case for Medical Negligence is initiated under the Consumer Protection Act. Plaintiff can file a suit in a civil court against a private hospital or a medical professional even if the services rendered were free of charges. The cases where the service rendered by a doctor doesn’t fall within the purview of “service” under CPA, patients/plaintiffs can claim compensation under tort law. But the onus of proof lies on the patient that because of doctors or the hospital’s negligent act or omission, has resulted in the damages. Few examples of such cases are transfusion of blood in the wrong blood group, leaving a surgical tool in the patient’s abdomen after the operation, removal of organs like a kidney without the patient’s consent, and administering the wrong medicine resulting in chronic illness or injury.
There is always an implied undertaking from that medical professional who has requisite skills and decides to take up a case or administer any treatment. In a landmark judgment of State of Haryana v. Smt Santra[5], the Apex Court held that since no human is perfect or immune from making an error in any judgment of decision while diagnosing any disease, a doctor would be held liable for such mistake only if he fails to take a reasonable degree of care and skills. The difference which helps to distinguish negligence under civil and criminal law is the degree of negligence.
In Kurban Hussein v. the State of Maharashtra[6], in the case concerning Section 304 (A) of I.P.C., 1860, it was stated that-“To impose criminal liability under Section 304-A, it is necessary that the death should have been the direct result of rash and negligent act of the accused, without other person’s intervention.”
Medical Negligence and Criminal Law
Negligence is measured on different scales for punishment under torts and criminal law. Under torts, it is determined by the extent of damage or loss suffered whereas in criminal law it is determined by the degree of negligent act or omission any act. Indian penal code has a mandate for the punishment of negligence U/S.304 states that “whoever causes the death of an individual by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.” Mens rea that is guilty mind, if present in a particular case then such practitioner will be punished regardless. A very high degree of rashness is an imperative element to prove criminal negligence.
In Jacob Mathew v. State of Punjab,[7] the court explained elaborately the terms negligent and rash act envisaged in section 304A of the Penal Code. The negligent or rash act must be accompanied by the expression “gross” to implicate the accused under this section. The doctor must have acted in a grossly rash and negligent manner which resulted in major injury. Hence the conduct of the doctor determines whether his liability will fall under criminal or civil law.
Do we need more stringent laws?
In the past few decades, there has been a rapid increase in cases related to medical negligence. But the more general public is becoming aware of their rights in case they become a victim of a grossly rash or negligent act by a medical professional or even any staff member of a hospital staff. Either individual or vicarious liability whoever fails to take care of reasonable care will have to pay for the damages caused. The onus to prove such rash or negligent conduct falls on the plaintiff. So to prove such allegation plaintiff needs to collect strong evidences which would be credible enough to punish the offender. A patient who became a victim might not be possessing sufficient knowledge about whether a doctor or any other medical professional is following standard procedures while administering him/her. Thus it becomes an uphill struggle to determine the real cause of damage or even the real relation between the injury and error made by the doctor.
Now it is time more and more people should be educated about their rights to fight against ill practices in the medical profession. This type of professional negligence needs an independent and separate mechanism to curb malpractices and provide quick access to justice. In a recent judgment by Apex Court in case Krishna Iyer v. State of Tamil Nadu and Others [8]where court passed the order on 1st July 2015 the compensation of 1.8 crores to be paid to the victim who lost her eyes in 1996. This judgment has set a touchstone in the field of law emphasizing the severity of medical negligence as a serious offense.
Best quality and adequate healthcare should be accessible to every human being without any discrimination and regardless of class, sex, or race. The constitution of India also provides in Directive Principles of State Policy a state should take responsibility to improve the nutrition level and health should be its primary duty, and also prohibit the use of intoxicating drinks and drugs.
Article 21 of the Constitution guarantees protection of life and personal liberty to every citizen. Constitution mandates the right to live is to live with human dignity under Article 21, it also includes the protection of health. Further, it has also been held that the right to health is integral to the right to life and the government has a constitutional obligation to provide health facilities. Failure of a government hospital to provide a patient with timely medical treatment results in a violation of the patient’s right to life.
The legislatures should keep in view the well-being of all citizens while making laws to tackle the problem of malpractices followed in the medical profession. The human body is delicate and fragile and the outcome is very unpredictable while administering any patient. Though a reasonable amount of diligence and care should be taken, as of now the decision is based on discretion and advice of panel of experts depending on facts of each case.
References:
[1] A.I.R. 2005 S.C. 3180
[2] (2006) CPJ 142 NC
[3] Indian Medical Association v. V P Shantha AIR 1996 SC 550: (1995) 6 SCC 651
[4] Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR 1969 (SC)128
[5] State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335
[6] (1965) 2 SCR 622
[7] A.I.R. 2005 S.C. 3180
[8] 2015 STPL(Web) 1239 SC
0 Comments