Introduction:
“Work is worship” – we often use this phrase. And in this analogous act of worshipping should not include any negligence. It is a breach of legal duty to provide due care.
But woefully, in almost every work we the human being put some negligence knowingly or unknowingly. Such negligence can turn out to be disastrous when it comes to medical services since it deals with the lives. This breach of duty can hamper the lives of the people and the patients have the right to initiate any legal action against negligence.
Doctors along with other medical staff are likely to dedicate their lives to their profession. But deaths or worse conditions of patients caused by the medical staff or hospital management are often reported, even after possessing proper skill and knowledge. This is a common scenario in almost all parts of the country. Even in the 21st-century people are dying or suffering due to medical negligence is a deplorable incident for any developing country.
Question arises why these incidents happen. Is there no remedy to get rid of this serious problem?
Of course, the answers always depict a positive sign. Since negligence is a violation of legal duty, it should have some legal consequences. This article further discusses so.
Features and Types of Medical Negligence
The definition of ‘Medical Negligence’ has remained same over the time- “Failure to exercise reasonable skill as per the general standards and the prevalent situation is termed as medical negligence.”
Medical negligence is basically “a breach of legal duty with care”. The breach of duty, that can hamper a life. It can take place in any medical situation, from a mere visit to the dentist to an emergency room situation. In most cases, the medical professional is anticipated to perform the equivalent standard of care that a professional with the same training and skill would do. However, medical negligence particularly should include the following features:
- The medical personnel them a duty of care.
- The duty of care was breached or violated.
- The breach was the cause of the person’s injuries or losses.
- The losses can be calculated with certainty.[1]
The remarkable statement of law propounded in the famous Bolam’s case has been extensively accepted as decisive for the standard of care necessary for both, professional men generally and medical practitioners specifically.
Nevertheless, the features remaining the same, numerous types of medical negligence can give rise to different consequences. The major types are:
- MISDIAGNOSIS and DELAYED DIAGNOSIS: Appropriate diagnosis is the first step of a treatment. Assuming the proper diagnosis process and carrying it on examining the patient is the prudent task of the doctor and other medical professionals. A little negligence here acts as the germinating seed for a high-risk injury.
Also, the delay in diagnosis by the medical authority or the doctor for whatever reason may be can lead to undue injury or deterioration of the health of the patient. In such cases, the medical professionals or the medical authority must be held liable for the incapability to properly administer medical treatment in a timely fashion. - SURGICAL ERRORS: Negligence in a single surgery can give rise to ample surgeries. Surgery is such a part of the treatment which needs enormous skill. There cannot lie any stance of negligence. This includes unnecessary surgery, wrong-site surgery, and many more and can lead to a massive illness of a patient.
- NEGLIGENCE ON ANESTHESIA: It is a very crucial part of medical treatment before any type of surgery as it deals with unconsciousness, temporary loss of sensation or awareness, or temporary paralyzing an organ. The anesthesiologist should have proper knowledge of it and should review a patient and his medical records for times before applying the drugs.
Any mistake caused due to negligence can result in permanent paralysis too.
Medical Negligence: Tortious Liability and Remedies
Any type of negligence including minor medical negligence comes under the Law of Torts until it includes a MENS REA. The liability of a doctor arises not when the patient has suffered any injury, but when the injury has come up due to the misconduct of the doctor, which has fallen below the criteria of NEGLIGENCE. We can also add that the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a “breach of his duty”.
Persons who offer medical advice and treatment unspokenly state that they have adequate skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to supervise the same. This is known as an “implied undertaking” on the part of a medical professional.
In the case of the State of Haryana vs Smt Santra, the Supreme Court firmly carried out that every doctor “has a duty to act with a reasonable degree of care and skill”. Doctors in India may be held liable for their services individually or vicariously if any negligence or improper action in course of their duty is noticed.
However, the doctors will be liable only if he/she has taken money in lieu of treatment and his/her negligence on the work has been proved.
The principle of res ipsa loquitur comes in execution only if it is proved that the occurrence was not natural, that the accident could not have happened without negligence and lapses on the part of the doctor, and that the circumstances togetherly show that the doctor was negligent.[2]
Hence the tortious liability lies to the medical professional and the plaintiff is entitled to get damages for the loss occurred by the medical negligent.
Medical Negligence and Remedies from Consumer Protection Act
It was only after the judgment of the Supreme Court in Indian Medical Association vs. VP Shantha, that the medical profession came under the extent of Consumer Protection Act,1986. This is regarded as the landmark judgment in the aspect of medical negligence. Section 2(1)(i) and Section 2(1)(o), 1986 of the Act hold the criteria for medical negligence as a part of the Act. According to section 2(1)(o), i)the service should not be free of charge, and ii) service under a contract of personal service is not covered under the Act.
The free treatment will not be considered as the service and as an outcome will not come under the ambit of the Act.[3]
The main aim of the Consumer Protection Act is to prevent consumers from being exploited and harmed. When a patient party is paying a proper treatment fee in exchange for a treatment or service he is entitled to be a consumer. He has all the rights a consumer possesses. Subsequently, he can sue the service provider for any exploitation or if any lacuna in the service by the service provider exists.
Plaintiffs are entitled to get proper damages under the provision of the Act if the negligence can be proved.
Medical Negligence and Remedies from Indian Penal Code
Public awareness of medical negligence in the country is rising. The Hospital authorities are coming across large numbers of complaints for negligence and its outcome. Though the negligence comes under the Law of Torts but whenever the negligence leads to death it comes under the scope of the Indian Penal Code of 1860.
Section 304(A) of IPC states that whoever causes the death of a person 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.
In the State of Haryana and others v. Smt. Santra, the Apex Court has held that liability in civil law is based upon the amount of damages incurred; in criminal law, the amount and degree of negligence is a factor in determining liability. However, certain elements must be conventionally proved to determine criminal liability in any particular case, the motive behind the offense that is MENSREA, the bulk of the offense, and the character of the offender.[4]
However, the doctors cannot be held criminally liable for a patient’s death unless the negligence in his part of work can be proved. Sections 80 and 88 of IPC also provide defenses for the doctors accused of criminal liability if his act was made in good faith or if the action remains lawful. Nonetheless, the burden to proof lies on the medical professionals.
Necessity of Legal Punishments
Punishment is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority. And when there is a breach of duty, there must be a legal consequence followed by the legal proceedings.
A doctor or nursing home is the entity upon which layman trusts and keeps full faith. But this is to be kept in mind Doctors or other medical staff are also human beings. Even the specialist can do mistake, mistake is part of the work and learning. SO FOR EVERY DEATH OR INJURY AFTER ANY TREATMENT, THE MEDICAL PROFESSIONALS CANNOT BE HELD LIABLE. But if the mistake is caused by due negligence of the doctor or with a criminal mindset, then the individual will be liable for the punishment.
A survey shows that there is a 110% rise in the number of medical negligence cases that India experiences. 60-65% of cases come against the conduct of hospitals.[5] Doctors and hospitals are the place where people go out of extreme necessity, not for luxurious purposes. It should be more conscious about its duty and administration. But alas! The results patients get are exactly negative.
This is why punishment is necessary. It would keep people off from negligence towards their work. It binds the citizen to act with discipline. And when it comes to medical negligence, the doctors and medical staff should be held liable if the negligence in the duty can be proved. The doctors and the medical staff should stay more conscious about their job and should have enormous knowledge about the consequences of their acts. They should not provide a single lacuna to save people’s lives. So their negligence towards their work is something which cannot be granted. As a result, the loopholes on their part of the job should not be overlooked otherwise the mindset of the entire society can get diverted from being law-abiding.
Also to impart justice to the aggrieved party who suffered extreme loss due to the act of negligence, the accused should be punished to refrain any other citizen from being the very next victim.
Conclusion
“When a doctor does go wrong he is the first of criminals. He has nerves and he has knowledge.”
Arthur Conan Doyle
This denotes how responsible the medical unit is for saving or killing a life they are taking care of. If a patient has been injured by medical negligence, the injury cannot be cured easily; neither the life of a dead victim can be given back. The only thing that can be done is to provide justice by granting proper damages for the injury or punishment to the medical team or authority who are responsible for the calamity. That is why the Government has set up adequate Acts and legal provisions to procure the aggrieved patients and their families.
The patient-centered initiative for the protection of rights is required to be more appreciated.
A developing country like who is spending a larger amount of money on the private health care system should be more focused on not only the remedies but also the preventive measures to avoid the negligence of the medical staff. It is required in the economic context of the rapid decline of State’sinvestment.
The Constitution of India has already set up RIGHT TO LIFE but life is of no importance if is not healthy. And a healthy life is partially dependent upon the medical professionals we consult for any physical unfitness. So the Indian Supreme Court’s painstaking efforts to constitutionalize a “right to health” as a fundamental right should give more emphasis and importance. As of now, the resolving procedure in the case of medical professional liability, regardless of consumer forum or a regular civil or criminal court, considers common law principles relating to negligence, vitiated consent, and breach of confidentiality. Along with this if the constitutional rights or remedies act as a backbone. The negligence in such a serious sector of medical science can be reduced and people of India can get solace before going for a treatment.
References:
[1]Lawfirms, Types of Medical Negligence, lawfirms.com, https://www.lawfirms.com/resources/medical-malpractice/medical-malpractice-injuries/types-medical-negligence.htm.
[2]K K S R Murthy, Medical negligence and the law, Indian Journal of Medical Ethics,(2007)http://www.issuesinmedicalethics.org/articles/medical-negligence-and-the-law/?galley=print#:~:text=In%20the%20Santra%20case%2C%20the,a%20factor%20in%20determining%20liability.
[3] Shreya Sahoo, Medical Negligence and The Liability Under Consumer Protection Act, Ipleaders, (Jan. 7, 2019) https://blog.ipleaders.in/medical-negligence-liability-consumer-protection-act/.
[4]Supra note 2.
[5]Supra note 3.
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