Author: Manjima, 4th Year, B.A. LL.B, SDM Law College, Mangalore
Medicine is of all the arts the most noble, but owing to the ignorance of those who practice it, and of those who, inconsiderately, form a judgment of them; it is at present far behind all the other arts.
Medical practitioners have responsibility to provide care to the patients. There’s no profession nobler than the medical. When the medical practitioner negligently commits an act or omits an act which should have been done which in turn causes injury to the patient. Earlier courts were very considerate towards the medical practice in cases of professional negligence. There have been an alarming spate of complaints by patients alleging medical negligence filed in today’s time.This sudden rise in filing of cases can be attributed to the heightened awareness among the public. This paper aims at discussing various aspects of medical negligence, duty of care, standard of care, measures taken when breach of duty takes place in cases of medical negligence,types of medical negligence and consumer protection act.
Keywords-Medical negligence, Consumer Protection Act, Standard of Care, Duty to Care
‘Next to creating a life, the finest thing a human could do is saving a life’ This saying is rightly applicable to the medical profession. The duty of a doctor is to provide treatment and make the patient’s life better. When admitted to hospital we are in hope that we will be treated and can go back to our family safely but in certain circumstances it is not possible. The patients believe that they are safe in their hands. A medical practitioner has specific duties towards his patients. In Spite of following this if he commits or omits an act without practicing due care, diligence and appropriate standard of practice which is expected from them. In addition, a medical practitioner must act according to the copy of the declaration of the Code of Medical Ethics provided by Indian Medical Council at the time of registration.
Negligence is deﬁned as the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence ordinarily means breach of a legal duty to care.
In simple words negligence is basically doing something which a reasonable man would not act in such a situation. It is understood by a prudent person that it may result in causing hurt or injury.
When a medical practitioner performs careless or unskilled treatment of a patient is called medical negligence. Further it leads to medical malpractice where the patient suffers injury from the treatment provided by the medical practitioner. When the health care provider deviates from the expected standard of practice it causes injury to the patient.
Medical negligence is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. Negligence takes place when a reasonable man omits to do something which he is supposed to do and in some acts where he is expected to be a prudent and reasonable man would not do.
To study various factors responsible for medical negligence. This paper will help in improving the quality of healthcare services and doctor-patient relationship and will lead to restoration of trust in the medical profession.
1) Whether the medical practitioners are adopting new means to avoid negligence?
2) Whether medical negligence can be attributed to the overwhelming impact of commercialization?
The data for this research work is using doctrinal legal research from various sources available in this connection and analysis derived from secondary sources such as e-books, journals, published papers and research articles.
The concept of medical negligence where the medical practitioner commits or omits an act which causes injury to the patient which could have been avoided if due care was undertaken. The patient is compensated for the injury suffered because of the medical practitioner’s negligence. After the Consumer Protection Act, 1986 has come into force patients filed cases against doctors, and have received compensation. A paper titled Changing Contours of Medical Negligence in India by Dr. Humayun Rasheed Khan elaborates the duty of doctor and standard of care to be observed towards the patient.
Nowadays, the balance between service and business is shifting disturbly towards business and this call for improved and effective regulation to be brought into practice in the medical arena. In the medical profession it is an ethical rule and responsibility to provide patients with care and attention to the best of their ability. People entrust their faith on doctors to save their lives. But even a slightest negligence on their part may cost a life. It is true that it becomes very difficult in critical stages to save life. Yet even in such circumstances they must use their knowledge and skills. Duty of care only arises towards those individuals of whom it may reasonably be anticipated that they will be affected by the act which constitutes the alleged breach.
In order to prove that the act done is negligent it is necessary to establish the presence of these elements. The question “how would a reasonable person act under the circumstances”decides how the act occurred has affected the victim and what care the doctor was expected to observe.
DUTY OF CARE
Firstly, it is necessary to know whether he owed any duty of care towards that person. In doctor-patient relations there exists a duty of care between them where the doctor is required to take care of the patient. When a doctor does not perform his duty and puts the patient’s life in risk. Some of the examples of medical negligence are such as-giving someone wrong dosage, too much loss of blood because of negligence, giving high dose of medicine, using infected instruments to operate a patient which can cause several types of diseases, nurse gives something to patient without doctor permission, doctor to be unsound while performing an operation, etc. Doctors must maintain high standards when dealing with patients, making patients aware about the potentialities of the process.
The duty of care undertaken by the doctors in deciding whether he will undertake the case, what type of treatment to give, and in the administration of medicine. A breach of any of these duties gives a right of action for negligence to the patient. When a doctor attends a patient the duty of care starts, irrespective of whether an informed consent was given or not. The welfare of his patient is in the hands of the doctor therefore it becomes the duty of the doctor who not only treats the disease but has to take sufﬁcient precaution so that the patient does not suffer due to the adverse effects of the treatment regimen.Therefore the duty of care for a doctor includes doing all the investigations, interpreting their results, diagnosing the disease promptly and properly, treatment of the disease, and follow-up of the patient till he gets completely cured. All the above-mentioned duties including the duty of referral are imposed on the treating physician only. However, if the patient develops an infection or complication as a result of an unhealthy work environment, it is a fault on the part of the doctor. If a doctor performs unauthorized procedures, ignores a patient, or administers the wrong medication, they are all considered negligence.
In Hedley Byrne Co. Ltd. v. Heller and Partners Ltd House of Lords has held that the law will imply a duty of care when a party seeking information from another who possesses special skill trusts him to exercise due care and that a negligent, though honest, misrepresentation in breach of his duty may give rise to an action for damages. Reasonable care must be taken to avoid acts or omissions, which a person can reasonably foresee and those which would be likely to injure another.
In civil law duty of care is a legal obligation which is expected to be exercising reasonable standards of care which could foreseeably harm others. In the cases involving medical negligence, at the beginning, the person alleging the negligence has the initial onus to make out a case of negligence, and thereafter the onus shifts on to the doctor or the hospital to satisfy that there was no lack of care or diligence.
Burden of Proof-
In the case of medical negligence the burden of proof lies on the complainant.The patient must be able to prove his claim against the medical practitioner to be able to claim the deserved compensation.
In Calcutta Medical Research Institute vs Bimalesh Chatterjee it was held by the court that the complainant has to establish the negligence taken place and the resultant deficiency in service in the course of negligence. In Kanhaiya Kumar Singh vs Park Medicare & Research Centre, it was held that negligence has to be established and cannot be presumed.The law requires a higher standard of evidence to support an allegation of negligence against any doctor. In cases of medical negligence, the patient must establish a claim against the doctor in order to succeed.
BREACH OF DUTY
Breach of duty is the violation of legal obligation that is, failure to do one’s own duty in the rightful manner. Negligence is the breach of a legal duty of care. A breach of this duty gives the patient a right to initiate action against negligence.
Unfortunately, medical professionals and health care providers can fail in this responsibility to their patients by not giving them proper care and attention, acting maliciously, or by providing substandard care, thus causing far-reaching complications like personal injuries, and even death
When a medical practitioner attends to his patient, he owes him the following duties of care:
(1) A duty of care in deciding whether to undertake the case;
(2) A duty of care in deciding what treatment to give; and
(3) A duty of care in the administration of the treatment
A breach of any of the above mentioned duties gives a right of action for negligence to the patient
The breach of duty was the proximate cause of the injury which was reasonably foreseeable. The professionals in the society are expected to hold a higher standard of care compared to others who don’t have knowledge or skill required.
In certain professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent professional in that line of work. Such a test, known as the Bolam’s Test.It has been held by the courts that in the cases of medical negligence, Bolam test is to be applied, i.e., “standard of the ordinary skilled man exercising and professing to have that special skill,” and not of “the highest expert skill.”
STANDARD OF CARE
A doctor has a duty of care in deciding whether to undertake a particular case, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment.  A doctor is expected to exercise a 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 what the law requires.For example, if the allegation is that a doctor was negligent on account of his failure to use particular equipment which should have been used, the court would consider whether such equipment was “generally available at that point of time” and therefore available for use
Medical profession requires a certain degree of skill and knowledge, so the standard of care in cases of medical professionals is generally high and should also be taken into account while giving the judgment.In medicine, professionalism connotes not only knowledge and skills, but also character, especially compassion and ethics. The increasing use of technology, paradigm shifts in patients’ attitudes to doctors, consumerism, litigation, and so on – have resulted in making the law an integral aspect of healthcare today.
The Latin maxim “res ipsa loquitur” means that “the thing speaks for itself.” This doctrine allows the inference of negligence when the circumstantial evidence proves that the accident happened, would not have happened in ordinary circumstances in the absence of negligence. In cases where doctor’ treatment was far below the standards of care then negligence is assumed.
The injury happened to the victim under the supervision and control of the doctor. The nature of injury gives clue that without negligence it could not have happened. There should be no involvement of the patient himself in the injury. The causal relationship between breach and injury is a must for fastening the liability of negligence, and such cause must be “direct” or “proximate.”
For the injury suffered, compensation is provided if negligence is proved. In criminal cases the liability is based on a person having intention to harm (mens rea).But in civil cases irrespective of the fact whether it was carried out willfully or negligently has to compensate for the harm caused to the victim. This is an exception to the general requirement of fault. In the civil as opposed to the criminal law, strict liability is the rule rather than the exception. In the criminal law, liability is usually based on the presence of mens rea. It means no man shall be punished unless he knew that he was doing wrong, or at least, a reasonable person in his position could have avoided the harmful effect by taking reasonable care. But in civil law, if an act is committed by someone irrespective of the fact whether they did it wilfully or an negligent act or by inevitable accident. The principle is the transfer of loss from the plaintiff to the defendant by enforcing compensation.
Earlier for historical and cultural reasons the doctors were always given the benefit of doubt. In the last couple of years things have changed even though not dramatically. Now there are more cases of medical malpractice being filed before the courts forcing recognition of the problems.
In the case of Ravishankar v. Jerry K. Thomas The State Commission found that the appellant doctor, after performing septoplasty to the patient, was responsible for leaving ribbon gauze in his right nose. This resulted in severe complications as a result of which the patient had to undergo a long process of treatment. The National Commission, after proper analysis of the facts and circumstances, declared that the circumstantial evidence clearly proves the negligence of the doctor as the complications would not have occurred in the absence of negligence.
In the case of Spring Meadows Hospital v. Harjol Ahluwalia,The Supreme Court mentions certain actions such as usage of wrong drugs, usage of wrong amount of gas for anaesthetic purposes, transfusion mistakes, delegation of critical works to junior doctors etc, as acts of gross negligence.
In the case of A.S Mittal v. State of UP Some patients who attended an eye camp at Uttar Pradesh suffered permanent loss of vision after undergoing a surgery in the camp. The Supreme Court held that this amounted to gross negligence in the part of the medical professionals. Due compensation was granted to the victims.
Types of Medical Negligence
1. Wrong and delay in diagnosis
We consult doctors to know what details of our illness or any health problems.Doctor’s do our check up to know what their next step should be. But sometimes due to their carelessness they misdiagnosis and can prove to be harmful to the patients. In the same way it is necessary to treat the patient on time.The delay caused can be proved fatal if no appropriate measures are taken. For example delayed diagnosis of cancer, heart attack.
2. Unnecessary or error in surgery
Negligence caused during surgery can have serious implications or in some cases lead to death. The surgery should be done in proper procedure. Surgical errors can result in loss of blood, object in body, infections caused. Sometimes unnecessary surgery is carried out since they are more efficient and are a way to bring more income to hospital. Therefore surgery should be carried out only when it is required because it involves several risks.
3. Errors in the anesthesia administered
Before operating the doctors should check the patient’s previous medical history, records of any medicines being taken earlier because not knowing the history can lead to allergies, infection, injury or even death.The tests should be done and right amount of dosage given should be administered,if there is any defects the anesthesia given can cause coma and other effects in the patient.Under the Indian law, be charged with having caused death by doing a rash or negligent act not amounting to culpable homicide under section 304-A, I.P.C., when a patient dies from the effects of an anaesthetic, operation, or some other treatment if it can be proved that the death was the result of gross negligence or criminal inattention on the part of the medical attendant.
4. Childbirth and labor malpractice
Doctors need to be very careful as it can be a risk for mother as well as child. A proper monitoring and medication should be provided. Any negligent behavior can put mother and child’s life in danger. The gross negligence in medical practice the injuries caused are primarily to the victim; it’s a blatant disregard of human life therefore it is beyond a matter of mere compensation between the accused and the victim’s family, and makes the accused liable for a criminal proceeding.
IMPACT OF COMMERCIALISATION
Since the time immemorial the doctor is seen as someone next to god.A doctor, at times, may be confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil.They are entrusted with great responsibility and people hope that doctors will cure their ailment.The impact of commercialisation of health services has huge implications concerning the quality of health.The commercialisation of medical practise should ensure better treatment,bringing in new technologies help in providing better treatment.Therefore it is necessary to ensure efficient and quality service for the benefit of the patient. In today’s consumerist society the patients are reduced to as mere customers and doctors as service providers.
A doctor is said to be not negligent if he is acting in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular art.
MEANS TO AVOID MEDICAL NEGLIGENCE
The doctor should always obtain an informed consent from the patient and ensure that their queries and concerns are adequately resolved. When they feel that the doctor genuinely cares they develop confidence in the actions of the doctor it can happen only when there is open communication among them. The doctor should do follow ups to understand the recovery rate of the patient.
CONSUMER PROTECTION ACT
The Consumer Protection Act , implemented in 1986, provides quick and easy redress for consumer complaints. Protects and encourages consumers to speak out against the shortcomings and defects of goods and services. When merchants and manufacturers engage in illegal trade, this law protects their rights as consumers. The main motivation of this forum is to provide assistance to both parties and get rid of lengthy trials.
There is an increase in the medical negligence cases in the Consumer Forum in the present scenario which shows that the consumers are getting redressal of their grievance in the form of awarded compensation through Consumer Commission by holding Doctors/Hospital Concerned guilty of Deficiency in services or medical negligence.
In 1995,the Supreme Court decision in Indian Medical Association v. VP Shantha brought the medical profession under the ambit of service as defined in Consumer Protection Act,1986.The consumer protection act has been completely changed in 2019 and this healthcare word has been removed,but the medical service is still present in the act and the patient as a consumer can approach the court and claim compensation.One of the most important thing that came into this act is that the consumer
Further, it is pertinent to note that government hospitals in India are poorly maintained and some rural areas lack even the basic medical needs. Public ignorance is perhaps the major blockade for prevention of medical crimes and law enforcement, which needs to be eradicated through mass awareness programs.
Precautions should be taken by doctors / hospitals and basic training should be given, new inventions and development should be encouraged, adequate number of doctors and other staff should be present since shortage of staff and doctors overburden them and it reduces their efficiency which may in turn cause acts of negligence. The hygiene and sanitation should be ensured so that everyone has access to safe conditions.
On the part of medical professional’s efforts such as refusal to accept bribes, acting as per medical ethics, refusing illegal monetary benefits from pharmaceutical companies, usage of appropriate drugs and providing negligent-free care should be taken to bring out actual reform. So far as the government is concerned, efforts such as implementation of laws with practical application, plugging of loopholes present in existing laws, rewarding upright doctors to encourage youths and imposing stricter rules against corruption may be taken. This would result in a reformed nation with minimal offences in the medical profession, thereby enabling the rich and poor to access high quality medical treatment.
There is continuous focus to improve processes associated with services which can fulfill the expectations of the patient.To Achieve measurable improvements in the services is to be efficient,effective,accountable,outcomes to improve the healthcare services.
In spite of several legislations in play, India is said to be among the most corrupted medical systems in the world.The changing doctor-patient relationship and the commercialization of modern medical practice has affected the practice of medicine. The patient loses trust and suspects that negligence is the reason they had to suffer it. There is an increasing trend of medical litigation by unsatisfied patients. Therefore efforts should be made to curb these difficulties.
In this paper, the concept of medical negligence has been discussed. According to me, if we provide proper working conditions and necessary medicines,equipment then it will be helpful in overcoming the difficulties in treatment. Unfortunately there are some who work carelessly causing injury to them. Many health care professionals lose the trust of the patients when things seem to have gone wrong with treatmentMost of the time victims don’t receive enough compensation. In the present system of obtaining compensation through the courts is unsatisfactory and unjust. Therefore it is very important to bring change into the lives of doctors and the patients.The patient should be compensated adequately and the quality of services should be improved and made accessible to everyone.
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