Introduction:
The medical profession is sometimes regarded as a profession that is close to god’s work. After seeing a doctor there come many hopes on the minds of people as they see him no less than a god. But in some cases, it doesn’t take more time for this god to act like a devil. Due to medical negligence, there go many lives in India. Many people in India die due to medical negligence. So, doctors must perform their work with much care. In recent times we see there is a large increase in the number of deaths due to medical negligence.
Now let’s discuss how a liability takes place or How a liability happens? The liability can’t be said just by seeing the injury of the patient who has suffered but certain other conditions give the reason to call it a medical liability. If the injury is caused by direct action for the works performed by the doctor. If anything happens due to the negligence of the doctor then it will be considered that the doctor is liable for this. It is not applicable for every injury. So, the burden of proof comes under the complainant who complained regarding the misconduct of the doctor.
Sometimes it is not with the doctor only but also the hospital is responsible for any misconduct which is caused to the patient. Some few conditions like-
- Improper and ill management resulting in the death of the patient.
- Wrong medication by the hospital staffs against the order of the doctor
- Wrong Diagnosis resulting in failure of instruments and medical-related things that is enough for taking the life of a patient
- Delay in appointing wards and ICUs for a critical patient (generally it doesn’t happen but, in some cases, where it is noticed to have delayed emergency conditions)[1]
Meaning and Definition of Negligence and Medical Negligence
Negligence- In simple term, if we will talk about what is negligence then we can say that not taking proper care of something which will result in loss of another person. We can say that negligence is an act that is caused due to ill care or dem care resulting in loss which may vary to the critical case of another person.
Medical Negligence- Simply if we will discuss medical negligence then similarly as negligence it can be said as an act which is performed by the medical professionals or institution which result in injury or loss to another person. This type of negligence generally takes the life of another person and is considered as one of the grave mistakes which can be performed by professionals.
Ex- A is a Doctor working in New Town Hospital. One day B visits him and A decided to conduct an operation. During operation A forgets to inject a spirit and then added a substitute to the patient. The substitute resulted in the death of B. So here we can say that A will be liable for medical negligence for the death of B.
Medical Negligence as a Civil and Criminal Wrong
Medical Negligence can be distinguished into both civil and criminal wrongs. If a person under these rules is found guilty then he will be held liable and have to pay the damages as per this Act.
In civil one can file the case and work on the remedies and appear at the civil court and also at consumer forum court. Here anyone on behalf of the patient can file a case and claim the damages. Be it the relatives, friends anyone. If the patient is alive then he can appear and can claim compensation for his loss.
In the case of criminals, things work quite differently and the offender was charged under various sections of the Indian Penal Code, 1860 if he is found guilty. The punishments and fine differ according to the offense committed and various sections were imposed on the person who committed it.
Medical Negligence under Tort and Consumer Protection Act
As we all know a tort is also called a civil wrong. If we will talk about the torts then what works should be done legally are already mentioned by the law. It works and follows the principle of the legal framework. If anything, unusual wrong happens then it is considered under the unliquidated damages. So medical negligence is also considered as one of these types of wrongs and this is happening on a huge basis in India.
Under consumer protection laws, the term medical negligence is said to be a failure to perform a service. If any professional unable to perform his task correctly and it results in a huge loss then it will be considered as a failure of service. In the case of consumer protection if these things take place then it is considered as a failure of duty and the legislation is quite strict.[2]
Laws Related to the Topic
In India due to medical negligence, a lot of life is going and sometimes the family of the patient also have no knowledge that the death of a patient is due to the misconduct of the doctor and management of the Hospital and they should be responsible for this. Now the main thing is that the relatives of the patients should be aware of their rights which are available to them and they can work on it.
If we will discuss the laws then the following laws provided under the Indian penal Code for the negligence of medical duty-
Section 52 in The Indian Penal Code
In this section the term good faith, if a thing is done with good faith then it will not be regarded as a crime.[3]
Section 80 in The Indian Penal Code
It tells about the accident while performing any lawful act while performing any lawful task if the accident is committed without any criminal intention or knowledge then it will not be regarded as a crime. But it should be done in a lawful manner.[4]
Section 81 in The Indian Penal Code
In this section it says about the act which can cause harm but done without criminal intent is not an offense. It further says that if any act with good intention and lawful manner causes any harm, then it will not be regarded as a crime. As the main purpose was to save a life so it will not be regarded as a crime.[5]
Section 88 in The Indian Penal Code
This act talks about the act which was not in an intention to cause death but for the benefit of the person who is injured will not be regarded as a crime.[6]
Section 90 in The Indian Penal Code
This act tells us about the consent and misconception[7]
Section 91 in The Indian penal Code
This section is the updated version of sections 87, 88, and 89 which tells about any action which likely to cause harm to the person who has given consent for him these above sections will not be extended.[8]
Section 92 in The Indian Penal Code
This section tells that if any act which is done in food faith and without the knowledge or consent of a person will not be regarded as an offense. If the condition of the patient changes then here the accused will not be liable. But certain conditions are there.[9]
Section 304A in The Indian Penal Code
This section deals with death by negligence, it tells that if any person dies because of the negligence or rash act but not amounting to culpable homicide will be held responsible and punished with two years of imprisonment or fine orboth.[10]
Section 337 in The Indian Penal Code
This section deals with causing hurt by putting life in danger of other person and their safety. If a person is found responsible under this act then he will be punished with imprisonment which may extend for 6 months or with a fine or with both. Fine may extend up to five hundred rupees.[11]
Section 338 in The Indian Penal Code
This section talks about grievous hurt by putting someone’s life in danger. If any person is found guilty under this act then he will be punished under this section as imprisonment for a term which may extend up to 2 years, with a fine, or which may extend up to one thousand rupees or both.[12]
Case Laws
Pravat Kumar Mukherjee V. Ruby General Hospital and Others
In this case, an accident happened to the victim, the deceased was a boy and the complaint was filed by the National Commission of India. The boy was injured due to the local town bus of the government and was taken to a hospital which was nearly 1 km from that place. As there was insurance the boy was about to get Rs 65000 as medical compensation from the insurance company, knowing this thing the hospital started treating him but in the middle, the hospital demanded more than 15000 as initial treatment fees. As the money was not paid the boy was taken to another hospital but on the way, he died. In this case, the National Commission held the hospital liable and wanted compensation from them worth 10 Lakhs to the deceased’s parents. Here the court decided the matter and the deceased’s parents received the compensation.[13]
Kusum Sharma & Others v. Batra Hospital & Medical Research
Seeing the current conditions and updates regarding medical science the court stated that negligence can take place in many forms and as the system regarding medicine is changing the definition of negligence can be defined in many ways. There are no proper criteria for this. If the professional is completing his work with due care and cautions and acting with the proper requisite skill and even after that the risk happens to the patient in that case he cannot be held liable[14]
Post Institute of Medical Education & Research, Chandigarh V. Jaspal Singh and Others
In this case, the court held that during the transfusion of blood when there was a mismatch which resulted in the death of the patient. So, this would be clearly stated that this case is a case of medical negligence.
Although the expression of res ispa loquitor was not mentioned during the hearing by the judge as per the books this thing will be considered as a part of medical negligence and it indicates the application of res ispa loquitor.[15]
Analysis
To be honest, if we will discuss, a patient comes to a doctor with the hope of getting well and for that goodwill, a doctor should work and give his best. But sometimes due to negligence, an innocent life is lost and it questions the profession of the doctor, whether they are skilled enough or not. So, there is a need for strong legislation which should monitor these things and analysis the things related to them.
If we analyze certain things the most important things which should be kept in mind is the required and skills and it should be monitored, the doctor who is performing the important things should be examined properly and then should be given permission to perform tasks.
The professionals of this particular field should not be harassed or made liable without any reason; the particular things should be examined properly and the conclusion should be made. Liberty should be given to both the parties to present themselves and they should be allowed to present themselves and represent themselves many times innocent suffered and the main culprits getaway.
Conclusion
If we will talk about the current situation, then we can say that medical negligence is increasing day by day and we can say more strong legislation is required. There had been more criticism which is being heard nowadays and these things need to be observed. The main principle that is “burden of Proof” sometimes stays unnoticed on the side of the plaintiff and is not seen sometimes.
In India, another thing one should be concerned is about the rights of a patient. We should clearly understand what rights are provided in the Indian legal system to the patient. The government should also work in these cases more appropriately so that the laws which will be imposed will be quite strict and followed accordingly.
If a medical officer and the officials related to this particular field should be charged with criminal negligence and the statement which is provided by him should also be noticed and should be properly examined. The main reason for this is to be followed so that the accused should be able to prove his side and his representation properly so that there should be an order which shall be maintained in the legal system.
Although the medical profession is regarded as a very great profession, sometimes faulty things were noticed here. In order to counter those faulty things, one should be ready if he is working in the legal field. Every time the mistake is not performed from the side of the accused, so the statement and the reason should be heard properly from both sides and then the conclusion should be made regarding the thing accordingly. So, it will talk about the important solutions for this problem them bringing up new laws is necessary and for that, a more advanced system with proper loopholes should be introduced by the legal system to make the law more transparent.
References:
[1] Janane magesh; Medical Negligence in India: Laws and remedy; Legalserviceindia; http://www.legalserviceindia.com/legal/article-3640-medical-negligence-in-india-laws-and-remedy.html.
[2] Aakarsh Shah; Medical Negligence; Lawoctopus; October-8 2017; https://www.lawctopus.com/academike/medical-negligence/#:~:text=Under%20consumer%20protection%20laws%2C%20medical%20negligence%20is%20another,practitioner%20is%20the%20test%20under%20consumer%20protection%20laws.
[3] Indian Kanoon; Central Government Act; Section-52 in the Indian Penal Code https://indiankanoon.org/doc/1180351/.
[4] Indian Kanoon; Central Government Act; Section- 80 in the Indian Penal Code https://indiankanoon.org/doc/602933/.
[5] Indian Kanoon; Central Government Act; Section-81 in the Indian Penal Code https://indiankanoon.org/doc/538716/.
[6] Indian Kanoon; Central Government Act; Section-88 in the Indian Penal Code https://indiankanoon.org/doc/862963/.
[7] Indian Kanoon; Central Government Act, Section-90; in the Indian Penal Code https://indiankanoon.org/doc/1742535/.
[8] Pinaki Sarkar; Legal provisions of Section-91 of Indian penal Code,1860; Share your essays.https://www.shareyouressays.com/knowledge/section-91-of-indian-penal-code-1860-explained/118506.
[9] Indian Kanoon; Central Government Act, Section-92; in the Indian Penal Code https://indiankanoon.org/doc/870189/
[10] Indian Kanoon; Central Government Act, Section- 304A; in the Indian Penal Code https://indiankanoon.org/doc/1371604/
[11] Indian Kanoon; Central Government Act, Section-337; in the Indian Penal Code https://indiankanoon.org/doc/1402213/.
[12] Indian Kanoon; Central Government Act, Section- 338; in the Indian Penal code https://indiankanoon.org/doc/1721129/.
[13] 2005 CPJ 35(NC)
[14] 11 (2010) SLT 73
[15] (2009) 7 SCC 330
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