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SYNOPSIS

As the title explains, the text will be putting a brief light on Laws that are applicable in the case of Medical Negligence along with Remedies available in our Country. At last, some important case laws on medical negligence along with conclusion explaining the importance of the medical system will be discussed.

INTRODUCTION

"It is health that is a person's real wealth and not pieces of gold and silver" - Mahatma Gandhi

In Poonam Verma v Ashwin Patil & Ors. It was termed that "Negligence has many manifestations —it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per se".

Although Negligence under Black's Law Dictionary is referred as Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.

It is very difficult to define Medical Negligence, asit is a multi-categorized concept, for instance, it can be covered under Consumer Protection Act from the perspective of Consumer it can be also considered as a Tort for the wrong done by the doctor and correspondingly Medical Negligence can also be charged under Crime if a lot of damage is done to the patient(alive or deceased) due to that Negligence. Some examples of Medical Negligence are Improper Medication, Misdiagnosis, Surgical Errors and Anaesthesia Administration too.

NATURE

In Jacob Mathew vs. State of Punjab & Anr. Justice Deepak Gupta and Justice Hemant Gupta discussed the nature of medical negligence where the Supreme Court held while dealing with the case of Professional Negligence that

"In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with a reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises."

REMEDIES

  • District Court: The aggrieved may file a complaint claiming for damages in district court and can even approach State and National Commission against the decision of the lower court.
  • A patient /legal heirs or representative of deceased patient/any registered consumer organisation can sue the medical professional for negligence under the Consumer Protection Act, 1986.

LAWS

Following are the laws that affect the medical profession and prevents malpractices with patients.

Fundamental Rights

  • Article 21

Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

  • Article 32

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights.

Directive Principle of State Policy

  • Article 41

The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

  • Article 42

The State shall make provision for securing just and humane conditions of work and for maternity relief.

  • Article 47

The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health.

Indian Penal Code (IPC)

  • Section 52

Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.

  • Section 80

Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

  • Section 81

Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

  • Section 88

Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied to suffer that harm, or to take the risk of that harm.

  • Section 90

A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.

  • Section 92

Nothing is an offence by reason of any harm which it may causes to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit

  • Section 304-A

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

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.

  • Indian Medical Council Act, 1956[1]
  • Consumer Protection Act, 1986[2]
  • Civil Laws[3]

The above laws are applicable tothe following medical professionals:

  • All Medical Practitioners
  • All private or trust hospitals, nursing homes and polyclinics
  • The Government hospitals and doctors
  • All laboratories, blood banks and X-ray clinics
  • The nurses and paramedical staff
  • Medical stores
  • Pharmaceutical company

IMPORTANT CASE LAWS

  1. Medical Negligence under Section 304A of IPC

In the Judgement Kurban Hussein Mohammedali Rangawalla v. State of Maharashtra related to Section 304A of IPC in accordance with medical negligence (death caused by negligence), It was held that

"To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."

The above statement of law is made by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap and was cited in dealing of above case with approval.

  1. Section 2(1)(o) of the Consumer Protection Act, 1986

During Indian Medical Association v. V.P. Shanta& Others, Apex Court held that service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service' as defined in Section 2(1) (o) of the Consumer Protection Act, 1986. Deficiency in service has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence.

The court in above judgement differentiated between the medical profession and other occupations by making the statement that:

"In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services".

  1. V. Krishna Rao v. Nikhil Super Speciality Hospital 2010

In V. Krishna Rao v. Nikhil Super Speciality Hospital 2010, an official in malaria fever filed an objection against the medical clinic for negligence in treating his wife. His wife was wrongly treated for typhoid fever rather than malaria, because of some incorrect prescription gave by the medical clinic. At long last, the decision was given, and Rao was granted pay of Rs 2 lakhs. For this situation, the rule of res ipsa loquitor ('the thing speaks for itself') was applied, and the pay was given to the offended party.

  1. Achutrao Haribhau khodwa and Ors v. the State of Maharashtra

In a popular case, Achutrao Haribhau khodwa and Ors v. the State of Maharashtra, the Supreme Court noticed that in the very nature of the medical profession, skills differ from doctor to doctor, and there is more than 1 admissible course of operation. Therefore, negligence cannot be attributed to a doctor so long as he is performing his duty with due care, caution, and attention. Merely because the doctor chooses one course of action over others, he won't be liable.

CONCLUSION

Although Indian laws are not the best when it comes to Medical Negligence and that is the weak point where justice is lacking. Here, the concerns turns out really serious and should be the prime focus during this pandemic as more medical practices are done in these days when compared to early normal days. Also, it becomes very difficult for a patient to determine the actual damage that was caused to him/her due to the Negligence of a Medical Professional. So, this should be considered as an obligation by all concerned authorities whether its Government, Hospitals or Medical Councils to provide quality and adequate healthcare to Indian citizens.

  • [1]Discussed in caselaw 1
  • [2]discussed in caselaw 2
  • [3]discussed in caselaws 3 and 4

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