Jun 15, 2020 09:41 UTC
Jun 15, 2020 at 11:12 UTC
What is Medical Negligence?
In the law of negligence, professionals such as lawyers, doctors, architects etc are said to possess some special skills. Any task which is required to be performed by special skills people would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task.
Nowadays, Indian society is growing more interest regarding the patients’ rights & liabilities. This interest has grown their knowledge in claiming redressal for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctor-patient relationship.
Medical negligence is a set up of two words. The second word itself describes the meaning, though the meaning of negligence has not been described in a proper way it is an act recklessly done by a person resulting in foreseeable damages to the other. Negligence is an offence under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. Medical negligence is basically negligence or could say a misconduct act done on the part of a medical practitioner or doctors by not performing their duty properly & not giving enough care which results in the breach of their duties for their patient resulting in harming the patients who were their consumers.
A professional is deemed to be expert in his field; a patient visiting a doctor surely expects the doctor to be expert in his job and assumes that he/she will be careful & not be negligent in his act. Knowing all these facts, still, medical negligence resulted in many deaths as well as adverse results to the patient’s heath. Mistakes or Negligence in the medical profession may lead to minor injuries or some serious kinds of injuries and sometimes these kinds of mistakes may even cause death
Negligence under the Consumer Protection Law
Since the professionals are added up in consumer protection law, the medical practitioner too has felt the heat of it. Under consumer protection laws, medical negligence is another form of deficiency in the performance of duty. It is more similar to the liability under the law of torts. But there is a stricter and broader liability in this situation as failure to exercise skill and care as is ordinarily expected of a medical practitioner is the test under consumer protection laws.
Doctors have an extremely difficult duty to perform. They are the ones in whose hands patient hands over his life believing the doctor will value it as his. It is for this reason that doctors are expected to exercise a very high degree of skill and care, but this is also the precise reason why they should not be inhibited in the exercise of their duty. Therefore, the laws imposing liability on medical practitioners have been tailored to accord to the practitioner’s maximum possible protection.
Duty in Medical Profession
The standard of care needed in a particular case depends on the professional skills expected from the persons belonging to a particular class.
A surgeon or anaesthetist will be marked by the standards of an average practitioner of class to which he belongs. In the case of specialists, a higher degree of skill is needed.
In the case of Dr. N. Ummar v. K.M. Hameed, there was a procedure called biopsy performed by a pathologist on the patient. It was wrongly diagnosed as tuberculosis when the patient was actually suffering from cancer. The patient died. The Kerala High Court held the pathologist liable to pay compensation & said it was a clear case of professional/medical negligence.
Medical Negligence – Res Ipso Loquitur
Res Ipso loquitur means things speaks for itself; while deciding the liability of the doctor it has to be well established that the negligence pointed out should be a breach in due care which an ordinary practitioner would have been able to keep. It was well settled that in case of gross medical negligence, the principle of res ipsa loquitur will be applied. It was held in the case of Spring Meadows Hospital v. Harijot Ahluwalia. The Supreme Court in V. Kishan Rao v. Nikhil super Speciality Hospital considered at the principle & gave certain illustrations on medical negligence where the principle of res ipsa loquitur could be applied.
In Ashish Kumar Mazumdar v. Aishi Ram Batra Charitable Hospital Trust, the plaintiff, an in-door patient in the hospital fell down of the window of a hospital room. Applying the principle of res ipsa loquitur, the Supreme Court held the hospital liable for absence of due care of the hospital.
Medical negligence is an act of commission or an act of omission which a prudent doctor of average skill, knowledge and experience would not do. The essentials of negligence are, four “D“s:
- There is a duty towards patients
- There is deficiency in duty towards patients
- This directly results in; and
- Damage which may be physical, mental or financial loss to patient or relatives.
Doctor’s Duty to attend Patients
Medicine is a profession where a practitioner is supposed to possess requisite knowledge and skill needed for the profession and has a duty to exercise reasonable care while dealing with the patient. A surgeon or anaesthetist will be determined by the standard of an average practitioner in that field, whereas in the case of specialists, a higher skill is needed.
If the doctor or a specialist doesn’t attend a patient admitted in the emergency ward of a hospital and the patient dies or becomes a victim of consequences which could have been avoided if the doctor would have taken due care, the doctor can be held liable under medical negligence. This was held in Sishir Rajan Saha v. The state of Tripura, that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers, the doctor can be held liable to pay compensation to the patient.
Doctor’s duty to take care
However, the liability of the doctor cannot be invoked every now and then and he can’t be held liable just because something has gone wrong. For fastening the liability, a very high degree of such negligence is required to be proved. A doctor or a medical practitioner when attends to his patients, owes him the following duties of care:
- A duty of care in deciding whether to undertake the case
- A duty of care in deciding what treatment to give
- A duty of care in the administration of the treatment
When you go to a doctor, you expect to be diagnosed properly & attentively at a reasonable cost. You expect the doctor to be knowledgeable about the latest advances in his field of speciality, and educate you about your diagnosis and prognosis, and explore the best possible solution to your health issue. In short, you expect to be healed. But for millions of people, what they expect is far from what they receive.
Negligence and Rashness
Rashness is performing any act which is beyond one’s competence. No judicious man in similar circumstances would have done this act. Rashness is part of negligence. For example, a paediatrician managing a case of myocardial infarction or doing surgeries or dressing a punctured wound without assessing how much internal damage is present.
Sometimes if the act of commission or omission is so rash that it results in death or serious injury to the patient then it may amount to criminal negligence. In such cases, the situation is much more difficult to deal as compared to civil negligence.
Sometimes negligence is not only due to doctors but also done on part of patients or relatives. This is known as contributory negligence. Examples include:
- Not coming for follow-up as per the advice of a doctor;
- Failure to follow the instructions given by the treating doctor
- The patient fails to take the advice of a specialist (for example, in case of an acute abdomen or head injury the Paediatrician has referred to a surgeon but the patient fails to take such a consultation) patient leaves the hospital against medical advice.
- The liability for the damage in such cases is suitably divided between the doctor, patients and relatives. The burden of proof of contributory negligence on the part of the patient is on doctors.
Burden of Proof
Negligence is difficult to prove. The burden of proof is either on patients or relatives. But in the following cases, the onus of proof may be on doctors (Jagdish Singh, personal communication)
- If the patient is in an operation theatre where relatives are not allowed to enter.
- If the doctor has raised a plea, i.e., suppose a patient of hydro-pneumothorax is admitted. The patient is not taken for surgery and dies of respiratory failure. The doctor pleads that surgery was not done as a patient or relatives didn’t give consent. In this case, the doctor has to prove that consent was refused (hence it should always be in writing whether the consent is given or refused).
- in cases of res ipsa loquitur.
What is not Negligence?
In the following situations, it is not negligence and hence the doctor may not be held liable:
(i) Difference of opinion: If there are methods with the doctor, any particular method may be adopted by the doctor for the patient.
“Bolam’s Test: In a case (Bolam vs. Friern) Hospital Management Committee in the UK, the following principles were derived: If there are two accepted schools of thoughts, for any treatment, a doctor may use any one of them. If some complications occur due to particular method (accepted school of thought) the doctor can’t be held responsible only on the ground that why he didn’t use the other method. This is known as Bolam’s principle. In this particular case, electroconvulsive therapy was given without muscle relaxant and the patient developed a fracture of the jaw. In those days two schools of thought were accepted; that electroconvulsive therapy can be given with or even without a muscle relaxant. Hence, negligence was not held.”
(ii) Wrong diagnosis in spite of diligence: Sometimes it is very hard to differentiate between some of the common and similar symptoms of diseases like partially treated pyogenic meningitis, tubercular meningitis and encephalitis. In such cases, if the doctor has taken all the care but still complications occur due to improper diagnosis, then this is not negligence.
(iii) Accidents: Not more but sometimes some accident may occur like breaking of needle or instruments not working. If such accidents are detected, attended and managed within the time then it’s not negligence.
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 –
- Civil Liability– Generally Civil liability includes the claim for damages suffered in the form of compensation. If there is any breach of duty of care while operating or while the patient is under the observation of the hospital, they are held to be vicariously liable for such wrong committed & are liable to pay damages in the form of compensation. At times the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors.
Under the employer-employee relationship, if someone is an employee of a hospital, the hospital is responsible if that employee results in hurting a patient by acting incompetently. Another way round, if the employee is negligent, the hospital is on the hook for any resulting injuries to the patient.
In Mr. M Ramesh Reddy v. State of Andhra Pradesh, the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. A compensation of Rs. 1 Lac was awarded against the hospital.
- Criminal Liability- There can be a possibility where the patient has died after the treatment and criminal case is filed under Section 304 A of the Indian Penal Code, 1860, for allegedly causing death by rash or negligent act. According to S. 304A of the IPC, 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.
Sometimes doctors are in so hurry to rush for the next operation that they forgot to sterilize the pieces of equipment and as a result, there happens transmission of some infection into the blood of patient which results infecting the entire system and ultimately results in worse condition of a patient or even death.
- Further in Dr. Suresh Gupta’s Case; Supreme Court of India, 2004; the court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and reckless criminal law for an offence under section 304A of Indian Penal Code, 1860 will apply. Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpractice 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.
-The service provided was not free of charge or for a nominal registration fee;
-If free, the charges were waived because of the patient’s inability to pay;
-The service was at a private hospital that charges all patients; or
-Any service rendered which was paid for by an insurance firm.
Therefore, certain categories of patients could now sue guilty health care providers for compensation under the Consumer Protection Act, 1986, as a breach of contract. Only facilities and doctors that provided all services free of cost to all clients were not liable under the CPA. However, even patients that do not fall under the category of consumers under the Act can sue for negligence under the law of Torts. The burden to prove negligence, however, is on the patient.
In negligence, the following defences may be pleaded by the doctor or medical professionals-
(a) Actual Denial: If a doctor is very confident that there is no negligence on his part, then he can deny the allegations.
(b) Contributory negligence on part of the patient, relatives may be helpful in minimizing the severity of the doctor’s negligence.
(c) Delegation of duties to a qualified assistant, partner, laboratory attendant or nursing staff may be one of the defences. In such cases, the responsibility is of the person to whom the duty was delegated. But if a consultant delegates his responsibility to his junior with the knowledge that junior was incapable of performing his duties properly, this is negligence on part of the consultant. But if the qualified staffs make the mistake then the doctor may not be held directly responsible.
(d) Inherent Risk: This is based on the principle of “Volenti non-fit injuria” i.e., no person can ask for any action if he has voluntarily consented for it. There is an “assumption of risk” whenever treatment is started. For example, radiation burns may result even during proper radiation therapy. This is not negligence. But the patient has a right to sue if burns result from overexposure.
(e) Emergency Situation: Cardio-respiratory arrest is an emergency situation. Sometimes fracture of ribs can occur during cardio-pulmonary resuscitation. A doctor can’t be held negligent for causing fracture of rib in such a situation.
(f) Known Complication: Anaphylaxis after Penicillin injections is a known complication; some drugs or procedures have known complications. A doctor cannot be held responsible for this failure of duty in such a case.
(g) Difference of Opinion: This principle was derived in “Balam’s Test”. There may be a difference of opinion amongst doctors while treating a case. This is not negligence.
(h) Limitation Period: If a particular case is filed beyond the period of limitation (according to Civil Law 3 years), this defence could be forwarded by the defendant. While managing a child the limitation period may extend until he becomes major (Section 6 of Limitations Act 1963) and is able to make his own decisions. So, in the case of a neonate, the limitation period may extend as long as 21 years of his age (age of majority 18 years plus a period of limitation 3 years).
(i) “Res Judicata” means “the thing has been decided”. This means that once the case is completed between two parties, it cannot be tried again between the same parties. For example, if a doctor sues a patient for non-payment of a bill and the patient doesn’t plead negligence on part of the doctor, the patient cannot subsequently sue the doctor for negligence after the completion of the case.
This article is not alleging doctors as negligent or irresponsible or incompetent, they are prudent but while performing the duty it requires a lot of patience and care, which many fails to perform towards the patient. Medicine which is one of the noblest professions requires setting a realm which can benefit the victims of various diseases. Many doctors, as well as specialists, sometimes don’t pay attention or what we say get negligent towards minor things which if would have taken care by the time wouldn’t have resulted in the worst or situation in which patient is in right now. An independent and unique legislature shall be set up to govern the malpractice. Recently in a case Krishna Iyer v. State of Tamilnadu and Ors. The Supreme Court awarded a compensation of 1.8 crores on July 1, 2015, as she lost her eyes in 1996. This is the highest amount of compensation awarded in the country (India).
Diseases are no less in the world & People are already victims of many diseases and are dying due to same, it should be our obligatory duty to reduce these things or at least try to give a little more time span in the life of people who have a little time left. Let the medicals professionals not regret the sin of fact that people die in the place where they came with a belief to get better and not die.