“MEDICAL NEGLIGENCE AND REMEDIES TO THE PATIENTS: A CRITICAL STUDY”
Aditya Narayan Mishra
Assistant Professor, S & S Law College, Indore
Abstract:- Medical Professionals are treated as next to God. They provide humanitarian services and provide solace to individuals affected by various diseases and disorders.
Because of their great service to humanity, they are treated with great respect since ancient times. However, with the passage of your time, there has been a change within the doctor- patient relationship. In the last few decades, the number of incidents has increased in which the patients have suffered a loss due to the negligent conduct of doctors. Due to the increasing conflicts and legal disputes between doctors and patients, most of the legal systems have developed various rules and principles to deal with such inadvertent behavior of doctors. The present paper aims to analyze the concept of negligence in the medical profession in the light of interpretation of the law by the Judiciary.
Keywords: Medical Negligence, Medical Profession, Noblest Profession, Patients, Malpractice, Liability, Judiciary.
1. INTRODUCTION
The medical profession is that one of the noblest professions among all other professions in India. For a patient, the doctor is like God. And, God is infallible. But that is what the patient thinks. In reality, doctors are human beings. And, to err is human. Doctors may commit a mistake. Doctors may be negligent. The support staff may be careless.
Two acts of negligence may produce a way bigger problem. It may be due to gross negligence. Anything is possible. In such a scenario, it's critical to work out who was negligent, and under what circumstances.
Around 52 lakhs, medical injuries are recorded per annum in India out of which 98,000 people within the country lose their lives during a year due to medical negligence. It is a significant concern for the whole nation that 10 people fall victim to medical negligence every minute and quite 11 people die every hour in the country due to this medical error.
In a country committed to the rule of law, such matters are taken to the court, and judges are alleged to decide. However, negligence by doctors is difficult to be determined by judges as they're not trained in life science. Their decisions are based on expert's opinions.
Judges apply the essential principles of law in conjunction with the law of the land to form a choice.
Reasonableness and Prudence are the guiding factors.
2. NEGLIGENCE
According to Winfield, “Negligence as a tort, is that the breach of the duty to require care which ends in damage, undesired by the defendant, to the plaintiff.”
In the case of “Blyth v. Birmingham Water Works Co.”, Court defined Negligence as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.
This definition involves three constituents of negligence:
1. A legal duty to exercise ordinary care on the part of the party complained of towards the party complaining the former‟s conduct within the scope of the duty.
2. Defendant must commit the breach of the said duty.
3. Plaintiff has to suffer consequential damage due to the breach of duty.
4. And, the results were undesirable.
Therefore, basically, these 4 elements are to be checked during a tort of negligence.
In the case of “Donoghue v. Stevenson”, Lord McMillan stated that categories of negligence are never closed.
3. MEDICAL NEGLIGENCE
Medical negligence is that the misconduct by medical practitioners or doctors by not providing enough care and taking proper safeguards or measures leading to the breach of their duties harming the patients.
So, we can define „Medical negligence‟ as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or other medical man.
Medical negligence results in „Medical malpractices‟ where the victims suffer some kind of injury from the treatment given by a doctor or the other medical man or health care professional.
In the case of “Moni v. State of Kerala”, it had been held that within the case of the medical practitioners, negligence way failure to act through the standards of moderately ready clinical men on the time. There can be one or more perfectly proper or reasonable standards of care, and if he conforms to one of these standards, then he is not negligent.
For example: if an accountant makes an error, there'll be a loss of cash but if a doctor makes an error, there's a threat of losing a life. A doctor is usually expected to be perfect because the patients see the doctors as gods and believe them within the process of healing and therefore the mistakes of doctors cost a life.
Negligence is an offense under the Law of Torts, Indian Penal Code 1860, Indian Contracts Act 1872, Consumer Protection Act, 2019 and many more.
4. ESSENTIALS OF MEDICAL NEGLIGENCE
The components of Medical Negligence as stated by Winfield are-
Existence of a legal duty
Breach of that duty
Damage caused by that breach 4.1 Existance of Legal Duty
A person approaches another person trusting his skills and specialized knowledge. So it's the duty of that person to exercise diligence the maximum amount needless to say from his contemporaries.
Supreme Court, In the case of Parmanand Kataria vs. Union of India, held that,
“every doctor, at the governmental hospital or elsewhere, has a professional obligation to increase his services with due expertise for safeguarding life.”
4.2 Breach of That Duty
It is said to be a breach of duty if an individual doesn't perform his legal duties as his contemporaries would have performed within the given situations and circumstances.
In the case of Laxman vs. Trimback, Supreme Court interpreted the duty of Doctor towards patients by saying, “bring to his task an inexpensive degree of skill and knowledge”
and to exercise “a reasonable degree of care”.
4.3 Damages Caused By That Breach
The damages and injuries incurred are prone to be compensated. The compensation awarded must be just, fair and reasonable, and by the facts and circumstances of the case.
4.4 Types of Medical Negligence
Medical negligence occurs when a medical professional deviates from the standard of care that‟s required.
So, we can say that any small deviation from the accepted standards of medication and care is taken into account to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital could also be held responsible for this.
Some of the types of medical negligence are as follows:
Wrong diagnosis
Delay in diagnosis
Error in surgery
Unnecessary
Errors in the administration of anesthesia
Childbirth and labour malpractice
Long-Term negligent treatment 5. DUTIES OF A MEDICAL PRACTITIONER
The duties and responsibilities of a physician are prescribed within the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002 made under Indian Medical Council Act, 1956.
Obligation to sick
Prognosis
Patience, Delicacy, and Secrecy
The Patient must not be neglected
Engagement for an Obstetric case 5.1 Acts of Misconduct
Abuse of professional position – They should not attempt to do misconduct by using the position in their profession. Committing adultery or improper conduct or maintaining an improper association with a patient constitutes professional misconduct.
Not taking the consent of patient – Performing an operation without taking the consent or acceptance in writing from the spouse, parent, or guardian in the case of a minor, or the patient himself because the case could also be, constitutes misconduct. In an operation that can end in sterility, the consent of both husband and wife is required.
Violation of regulations and laws – The medical professionals must follow the rules and regulations regarding the duties and responsibilities laid down in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
5.2 Rights of the Patients
The Ministry of Health and Family Welfare (MoHFW) has released a „Charter of Patient Rights‟ prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights according to the Constitution of India.
Right to know the information
Right to see and check records and reports related to their ailment
Right to receive medical care during an emergency
Right to give informed consent
Right to possess confidentiality, human dignity and privacy associated with their ailment
Right to not be discriminated on any basis regarding medical aid
Right to safety and quality care consistent with standards of required medical aid
Right to settle on or select any alternative treatment to cure their ailment if options are available
Right to possess transparency within the cost of the treatment and care consistent with the prescribed cost whenever relevant
Right to settle on or select the source for purchasing medicines or doing tests
Right to settle on or select proper referral and transfer, which is free from contradictory commercial influences
Right to protection for the patients who are involved within the clinical trials
Right to protection of participants who are involved in biomedical and health research
Right to be discharged or right to receive or take the body of a dead person from the hospital
Right to urge the education that a patient requires to understand about his ailment or disease
Right to be heard and seek redressal about his ailment or disease 6. CONSEQUENCES OF MEDICAL NEGLIGENCE
The consequences of medical negligence are often classified into three categories-
Criminal Liability
Monetary Liability
Disciplinary Action 6.1 Criminal Liability
Section 304A of the Indian Penal Code of 1860 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.”
This means if a person causes the death of another person due to his negligent or rash behaviour, he will be liable for punishment.
If a patient dies thanks to gross negligence or malicious intent of the doctor, the doctor would be criminally liable. A Doctor also will be vicariously responsible for the negligence of his employees or servants.
6.1.1 Exceptions to criminal liability
Sections 80 and 88 of the Indian Penal Code, 1860 contains defences for doctors accused of criminal liability.
Under Section 80 (Accident in doing a lawful act), “nothing is an offense that's done by chance or misfortune and without any criminal intention or knowledge within the doing of a lawful act in a very lawful manner by lawful means and with proper care and caution.”
According to Section 88, “a person can't be accused of an offense if she/ he performs an act in good faith for the other‟s benefit, doesn't shall cause harm although there's a risk, and also the patient has explicitly or implicitly given consent.”
6.2 Civil Liability
In the case of the State of Haryana v. Smt Santra, the Supreme Court held that each doctor "must act with an affordable degree of care and skill." However, "since no human is ideal and even the foremost renowned specialist can commit an error in diagnosing a disease, a doctor will be held accountable for negligence on condition that one can prove that she/he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with due care.” “An error of judgment constitutes negligence as long as a fairly competent professional with the quality skills that the defendant professes to possess, and acting with due care, would not have made the same error.”
To distinguish civil liability from a criminal one, the Supreme Court in the case of Kurban Hussein v. the State of Maharashtra concerning Section 304 (A) of I.P.C., 1860, it was stated that-
“To impose criminal liability under Section 304-A, it's necessary that the death should have been the direct results of rash and negligent act of the accused, without other person‟s intervention.”
6.3 Disciplinary Action
Another consequence of medical negligence could be in the form of imposition of penalties pursuant to disciplinary action. Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, made under IMC Act, 1956 governs the professional misconduct of medical practitioners. Medical Council of India (MCI) and therefore the appropriate State Medical Councils can take disciplinary action by removing the name of the practitioner or suspending him.
7. CONCLUSION
Mahatma Gandhi once said, “It is health that's a person‟s real wealth and not pieces of gold and silver”. Patients see God in doctors.
Kevin Alan Lee said “Being in such a profession where sick, ill and sufferers are your customers who look on you because the almighty, an absolute amount of care is required.”
Justices Chandramauli K.R. Prasad and V. Gopala Gowda in their decision in the Anuradha Saha case observed that, "The patients, regardless of their social, cultural and economic background, are entitled to be treated with dignity, which not only forms their fundamental right but also their right,"
Hence, doctors have to treat their patients with ordinary care and diligence with no malpractices.
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11. Civil Appeal No.2867 Of 2012
