Medical Negligence :
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| Overview: Medicine is a noble profession and practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is that the law requires. 1) Damage to organ due to negligence. 2) Wrong treatment due to wrong diagnosis. 3) Money receipt or prescription or discharge summery or test reports when not provided. 4) When treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature. 5) Theory of res ipsa loquitur [a thing speaks of itself] - in case any instrument left in the body, a wrong part removed, allopathic treatment given by a homeopathic doctor etc. 6) Govt Hospital liable if contribution from the employee’s salary deducted OR Payment made by insurance company. 7) Negligent if three steps necessary are not observed by the medical practitioners. First - To decide whether he has to take up the case or not: Second- If taken up the case, he is to decide what treatment is to be given. Third- Whether the treatment given as per the diagnosis made. 8) Hospital can also be negligent ‘it is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. WHEN DOCTOR CANNOT BE HELD LIABLE 1) If five methods available for treatment, one chosen, not negligent. 2) Doctor not guarantor for healing or curing the disease. 3)Error of judgement differ from wrong diagnosis. MEDICAL PROFESSION PRINCIPAL ADOPTED BY APEX COURT: 1)Though Indian Medical Council Act has to provisions to control the medical practitioners and take disciplinary action against erring doctors, consumer courts are additional remedy to the consumer under consumer protection act to get compensated. 2)Though medical PROFESSION is different from other OCCUPATIONS, but commercialization has already taken place when services are given by payment though it is still a noble profession based on faith and trust. 3)Though medical profession is technical in nature but it cannot be said that the members of the forum are not capable to deal with such matters .They are equipped with expert opinions on the subject, medical literature and other reports, eminent people from the society, judges or retired judges. Three members can be expert of three subjects only and if it is expected them to know every subject, it will be an impossible situation in all the courts. 4) Decisions in criminal case not found negligent do not affect cases under consumer protection act –gross negligence and intention to commit crime is the parameter in criminal cases. | |
What Is Medical Negligence ? When and How to File a Case pertaining to Medical Negligence ?
Recently, Indian Society is experiencing a growing awareness regarding patient’s rights. This trend is clearly discernible from recent spurt in litigation concerning medical professional or establishment liability, claiming redressal for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctor patient relationship.
What Is Medical Negligence?
Negligence is simply failure to exercise due care. The three ingredients of negligence are as follows:
- The defendant owes a duty of care to the plaintiff
- The defendant has breached this duty of care.
- The plaintiff has suffered an injury due to his breach.
Civil Liability and Medical Negligence
Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.
Persons who offer medical advice and treatment implicitly state and undertake to have the skill and knowledge to do as under:
- To undertake particular job.
- To decide whether to take a case or not ,
- To decide the treatment suitable for particular case
- To administer that treatment.
However, no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease.
A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error.
Doctors must exercise an ordinary degree of skill. However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not totally cured.
Certain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the person’s duty; and this must have caused harm to the injured person. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion.
Criminal Liability and Negligence
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.
A physician can be charged with criminal negligence when a patient dies from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result of malicious intention, or gross negligence. Before the administration of anesthesia or performance of an operation, the medical man is expected to follow the accepted precautions.
In such cases, the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is, however, not liable for an error judgment. The law expects a duly qualified physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cures.
“Gross Lack of competency or gross inattention, or wanton indifference to the patient’s safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient.” (Hampton v State; State v Lester)
When Does The Liability Arise In Case Of Medical Negligence?
The liability of a doctor arises not when the patient suffers injury but when the injury results due to the conduct of the doctor, which was below reasonable care. Hence once there exist a duty which has to be established by the patient, then the next step is to prove breach of such duty and the causation.
Normally the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases the principle of “res ipsa loquitor” which means the thing speaks for it might come into action. Mostly the doctor is liable only for his own acts. However in some cases a doctor can also be made vicariously liable for the acts of another. The example of such a situation is when a junior doctor assisting the senior doctor commits a mistake it becomes the duty of the senior to have supervised him hence vicariously liable.
Proof of Medical Negligence
It has been held in different judgments by the National Commission and the Hon’ble Supreme Court that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. The burden of proof correspondingly greater on the person who alleges negligence against a doctor. It is known fact that things can go wrong even wit the best doctor. And the guilt or the negligence should be established beyond all reasonable doubts that his skill fell below reasonable care that he ought to take during the treatment/ surgery.
Steps/ Procedure to File Complaint Pertaining To Medical Negligence
Medicine is a noble profession and practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is that the law requires.
- Damage to organ due to negligence.
- Wrong treatment due to wrong diagnosis.
- Money receipt or prescription or discharge summary or test reports when not provided.
- When treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature.
- Theory of res ipsa loquitur [a thing speaks of itself] – in case any instrument left in the body, a wrong part removed, allopathic treatment given by a homeopathic doctor etc.
- Govt Hospital liable if contribution from the employee’s salary deducted OR Payment made by insurance company.
- Negligent if three steps necessary are not observed by the medical practitioners.
First – To decide whether he has to take up the case or not:Third- Whether the treatment given as per the diagnosis made.
8) Hospital can also be negligent if ‘it is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty.
(As according to the National Consumer Helpline[1])