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Medical Negligence, as the term suggests, refers to proficient carelessness by a health care professional or is the consequence of some irregular conduct with respect to any individual who is a medical professional or is providing services related to the same. Likewise, it can be said that the law asserts such actions below the legal as well the ethics in the medical profession standard and be termed as carelessness.
As opined by Lord Wright such Negligence is not just a careless conduct but it also connotes the concept of duty, its breach and the damage that occurred thereby due to that omission or commission of the act.
Ubi jus ibi remedium, i.e., where there is a law, there is a remedy. The law confers on every person the duty to respect the legal rights of others. The legal rights of the citizens are enshrined in the Constitution as well as in the various enactments. Negligence is the breach of a legal duty to care. The duty of care means the duty to be careful in action or, inaction. The standard should be that of an act or omission that it does not hamper the interest of other person(s). In law, such activity should not be to the extent that it makes it infringes the legal right of other person and thereby becomes punishable under law.
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The present article is a descriptive one that focuses on the concept of Medical Negligence and its components. The article likewise makes available the information on the risk that is caused to an individual due to medical malpractices or carelessness. This article aims at providing information about the topics which creates awareness as much as possible on Medical Negligence.
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Medical negligence can be said to be synonymous to medical malpractice. It is an improper, unskilled, or negligent treatment of a patient by a medical professional who can be a physician, dentist, nurse, pharmacist, or any other health care professional.
Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” in the treatment of a patient. The “standard of care” lays down the boundary line distinguishing what would have been done and what wouldn’t have been done. The standard depends upon the reasonable prudence of a medical service provider under certain circumstances. “The important question isn’t how to keep bad physicians from harming patient; it’s how to keep good physicians from harming patients. It is unreasonably threatening practice and it is classified as such because first, the actor did or should have foreseen that it would subject another to an adverse risk of harm, and second, the magnitude of the perceivable risk was such that the actor should have acted in a safe manner.
HOW TO IDENTIFY MEDICAL NEGLIGENCE
Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others
The apex court in Kusum Sharma & Others vs Batra Hospital & Medical Research Centre and others beautifully summarized how to identify medical negligence in a case. These points should be kept in mind by all the respective courts while deciding such cases, it’s also important for practitioners to know, where the law stands on medical negligence.
The court of law in the course of deciding the case observed at various occasions that:
Negligence is characterized either by act or by, omission. It is that breach of duty exercised either by the commission of an act or by the omission of an act which a reasonable man, under reasonable consideration, would do, or would refrain from doing.
Negligence is an essential ingredient of the offense. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
Medical professional holds immense importance and responsibility. Thus a medical professional is expected to work with a reasonable degree of skill and knowledge maintaining a reasonable degree of care. The law requires that standard of care neither to be very high or very low; it shall be circumstances of each case that would determine the competence of judgment made.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
The medical professional is often called upon to adopt a procedure which involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. It may so happen that in order to cure the patient, the professional might take higher risks. If a failure occurs, that act may not amount to negligence.
Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. There may be more than one course of action to be applied, and the doctor who prefers one over the other fails to procure the desired results would not be liable as long as the course of action chosen by him was acceptable to the medical profession.
It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals to extract high compensation from them; especially from the private hospitals or clinics. Such activities need to be checked and prevented.
Medical professionals can be protected so long as they perform their duties with reasonable skill and competence, their course of action is in the interest of their patients. It is the duty of the medical professional to give the interest and welfare of the patients the paramount importance.
COMPONENTS OF MEDICAL NEGLIGENCE
- Existence of legal duty on a medical professional.
- Breach of that Duty by that medical professional.
- Damage caused by the breach of that duty of the medical professional.
The above-mentioned components of medical negligence need to be analyzed to understand the whole framework of medical negligence as to how liabilities occur.
THE LEGAL DUTY THAT EXISTS
The professional suggests proficiency of a person. Hence, any person who approaches a professional would deem that professional to be proficient and skilled. That person would believe him to possess the required skills, and knowledge of the problems of the patient. The professional automatically comes under the obligation to exercise due diligence in the course of performing his duties. So, it is not that the legal duty can only be contractual and not otherwise. As per law, It is the duty of the professional to provide the patient with proper treatment to his ailments and everything that is just and reasonable in that course, else that would amount to negligence on the part of that medical professional. It acts as non-written contract, which commences via implication between the doctor and the patient that failure on the part of the doctor to take proper care can attract the liability for breach of professional duty.
BREACH OF THAT LEGAL DUTY THAT EXISTS
Breach of legal duty would take place when a person would work against the ordinary prudence required in a particular circumstance. Breach is that failure of exercising the required action. A degree of care is required to prevent the breach or, say to carry out the functions reasonably required; that standard need not be of very high degree or otherwise, but it should be relative, expected from a person in the ordinary course of treatment.
DAMAGES CAUSED BY THAT BREACH OF DUTY
The wrong, the injury occasioned by such negligence is liable to be compensated. In terms of money and the courts apply the well-settled principles for determination of the exact liquidated amount. We must remember that no hard and fast rule can be laid down for universal application. The consumer forum while awarding the compensation must consider all the relevant factors and further decide on the basis of accepted legal principles on moderation. It is the duty of the consumer forum to ensure that the amount of compensation awarded is reasonable, fair and proper according to the given facts and circumstances of the case.
The liability of the person committing the wrong can be of three types depending on the harm or the injury suffered by the injured person they are
- CIVIL LIABILITY– Civil liability comprises of the claim for damages, i.e., the compensation to be paid. In the course of operating a patient or while the patient is under the supervision of a doctor, medical professional or hospital/clinic and thereby occurs any breach of the duty of care then they are held to be vicariously liable for such wrong committed. In that course, they are also liable to pay damages in the form of compensation. Senior doctors may also be held vicariously liable for the breach of duty committed by the junior doctors. In the case of hospitals/clinics, the wrongful acts of the employees in the course of their profession makes the hospitals/clinic vicariously liable for that act. In the case of Mr. M Ramesh Reddy v. State of Andhra Pradesh, a similar principle was held where the hospital authorities were held to be negligent, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. Thereby, the hospital was made to pay a compensation amounting to Rs. 1 Lac. So, it becomes a duty of the hospital to check that the actions of its employees do not cause inconvenience to those seeking medical treatment in its premises.
- CRIMINAL LIABILITY- Negligence may also lead to the death of a person. A patient may die after treatment and this would attract proceedings. A criminal case would be filed under Section 304A of the Indian Penal Code for allegedly causing the death by rash or negligent act. Section 304A of the IPC states that whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to two years, or by fine, or both. Hospitals can be also charged with negligence for transmission of infection including HIV, HBsAg, etc. if any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital then the hospital can be held liable for lack of reasonable duty to care.
Here are some important cases on Criminal liability of medical negligence cases:-
- The Supreme Court in landmark Judgment Jacob Mathew vs. State of Punjab framed guidelines under which a Doctor could be held criminally liable on account of his professional negligence or deficiency of service. The apex court, in this case, held that extreme care and caution should be taken while criminal proceedings are against medical practitioners for alleged medical negligence. The court showed its concern for the medical professional and thus elaborated safeguards for them, which included avoiding arrest unless it was inevitable. The court further opined on the importance of medical profession and stated that it is the noblest profession rendered to human beings and therefore, those involved in the same need to be protected. Hence, this makes it necessary to advocate such a regime that would protect the doctors from unjust prosecutions. It was further observed by the court that a simple lack of care, an error of judgment or an accident doesn’t solely make a medical professional liable for negligence. The judgment should be made based on the surrounding circumstances as well.
- Further, In Dr. Suresh Gupta’s Case (Supreme Court of India, 2004 ) the court held that the legal position makes it clear that the death of a patient due to medical negligence, would make the doctor was liable as per the civil law for paying the compensation. But criminal proceedings would be attracted u/s 304A of IPC only when the negligence was so gross and led to the event that endangered the life of the patient. Under the Indian Penal Code 1860, Sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpractices in India.
- The conduct of medical malpractice was brought under the Consumer Protection Act, 1986, due to the landmark case of the Indian Medical Association vs. V. P. Shantha & others, The judgment, in this case, defined medical care as a “service” that was covered under the Act, and also clarified that a person seeking medical attention may be considered a consumer if certain criteria were met.
BURDEN OF PROOF
In the case of Medical Negligence, the burden of proof lies on the complainant. The patient must be able to establish his/her claim against the Medical practitioner.
In the case of Calcutta Medical Research Institute vs Bimalesh Chatterjee, it was held by the court of law it is on the complainant to establish that negligence has taken place and also the resultant deficiency in service in that course of negligence. In Kanhaiya Kumar Singh vs Park Medicare & Research Centre, it was made clear by the court of law that negligence cannot be presumed, but has to be proved.
In India, to protect oneself from criminal liability, doctors or medical practitioner have an option of using the sections 87-93 of the Indian penal code. These sections deal with hurt caused by the doctor or any medical practitioner when a consent is given either by the party who wishes to be treated or the legal heirs of the party like for e.g. Section 89 of the IPC talks about situation where the parents give a consent in place of their children who are unable to judge what is right for them and what is not right for them. Therefore when the injured party gives consent for a particular treatment or operation then the doctor or the hospital cannot be held liable.
It is not necessary that the defendants are always at fault. The Supreme Court in Kusum Sharma & Ors vs. Batra Hospital and Medical Research case held that the law of negligence has to be applied according to facts and circumstances of the individual case. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. It was also noted by the Apex court that medicine is an evolving science; hence there is no certain outcome of effect for each and every person. In certain situations calculated risk is involved in such cases Doctors and Medical practitioners can’t be held liable for negligence as the patient himself has consented to the risk involved.
In another case of Jacob Mathew .V. State of Punjab, the Supreme Court held that in some cases of medical profession the doctors are equipped in a certain situation where they have to make choices between a devil and the deep sea. Sometimes, in the certain situation, there must be greater risk in the operation but higher chances of success and in another move, there would be a lesser risk but higher chances of failure. So the decision, that which course would be follow will depend on facts and circumstances of case.
The author is a litigation expert and a lawyer with a New Delhi law firm, Krida Legal.
Studied at Indraprastha College for Women (Delhi University), completed in year 2014. Currently working with Medical Dialogues, a online Medical news paper dedicated for healthcare Professionals.