Authored By:- Vishruta, Law Student at Bangalore Institute of Legal Studies.
The author has written this article while pursuing our 10 Days Workshop on Legal Research and Writing
Negligence is a civil tort when one breaches his duty of care to another causing any damage or loss. When such negligence is followed by any professionals such as doctors, lawyers, accountant, engineer, etc., it is said to be Professional Negligence. Medical negligence is one such negligence which comes under Professional Negligence. It has been a serious issue in recent years all over the world. We can say medical negligence is an improper or unskilled treatment given to a patient by a medical practitioner which leads to death or partially or fully affects the health condition of the patient. This negligence not only includes doctors but also includes surgeons, pharmacist, nurse, physician or any other medical practitioner which leads to Medical Malpractices where victims suffer the loss.
EXAMPLES OF MEDICAL NEGLIGENCE:
Some of the medical negligences are
- Unprofessional administration of drug
- Performing inappropriate type of surgery
- Misguiding the patient
- Retaining a surgical instrument after surgery
NATURE OF MEDICAL NEGLIGENCE:
In the breach of duty of any medical professionals who ought to have been skilled persons but turns up to be an ordinary competent person exercising ordinary skills in the profession. Due his action of duty if anyone suffers any loss it is said as negligence.
TYPES OF MEDICAL NEGLIGENCE:
There are many types of medical negligence for which compensation can be claimed. Some of them are:
- MEDICAL NEGLIGENCE:
This is one particular circumstances where failure to diagnose a condition correctly or at a particular time which can lead to unnecessary suffering of the victim or patient. At times it might not solely be the responsibility of a medical practitioner but also depends on the patient at what circumstances he or she is being diagnosed.
- SURGICAL NEGLIGENCE:
This is the negligence seen post-surgery. Vast majority of operations are successful but occasionally mistakes are made. Surgical negligence may include retaining of surgical instrument in the patient’s body, performing wrong surgery, performing surgery at wrong place, infections caused due to poor hygiene, damaging any proper functioning organ or removing it from patient’s body without knowing to the patient, etc.
- PRESCRIPTION AND MEDICATION ERRORS:
Each day there are thousands of prescriptions written and dispensed. When there is intake of wrong medicine or incorrect dosage of medicine can cause serious injuries to the patient. Consequences include allergic reaction, psychological illness, brain damage, digestive problems and in some cases death. Even supply of inefficient standard of drugs is also considered as negligence.
- NEGLIGENT MEDICAL ADVICE:
A patient needs to be advised with all pros and cons of the surgery he or she will be diagnosed for which they can take a call whether to proceed with the surgery or not. When this procedure is not followed and there is damage caused to the patient during surgery or post-surgery, then you may be entitled to a compensation claim.
ESSENTIALS OF MEDICAL NEGLIGENCE:
There are essentially three elements required to prove that the medical practitioner was negligent. Those are:
- The defendant must owe a duty of care to the plaintiff or victim or also known as Standard of Care
- The defendant must have made a breach of that duty or also known as Duty of Care
- The plaintiff must have suffered the damages due to breach of duty of defendant or also known as Burden of Proof.
LAWS RELATED TO MEDICAL NEGLIGENCE IN INDIA:
There are many laws formulated under criminal, civil, and consumer provisions to punish the accused and do the best which could be done for the victim.
Under provision of Criminal laws,
According to Section 304-A of the Indian Penal Code, 1860, if a person commits a rash negligent act which amounts to culpable homicide the person will be punished with imprisonment for a term which may extend to two years or with fine or both.
According to Section 337 of the Indian Penal Code, 1860, if a commits a rash or negligent act due to which human life or personal safety of others gets threatened. The person will be punished with imprisonment for a term which may extend to five hundred rupees or both.
According to Section 338 of the Indian Penal Code, 1860, if a person commits a rash or negligent act due to which, human life or personal safety of others gets threatened. The person will be punished with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or both.
Under defences of Criminal law,
Section 80 of the Indian Penal Code, 1860, says that anything which happens as a result of an 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 is not an offence.
Section 81 of the Indian Penal Code, 1860, states that if anything is done merely by the reason that it is likely to cause harm but if the same is done without any intention to cause harm and in good faith in order to avoid other damages to a person or his property is not an offense.
Section 88 of the Indian Penal Code, 1860, says that no one can be made an accused of any offence if he performs an act in good faith for the good of other people and does not intend to cause harm even if there is a risk involved and the patient has given the consent explicitly or implicitly.
Under Civil liability it can be stated along with Consumer Protection Act where patient is consumer and doctor is a provider. In Civil liability claim for damages suffered is in the form of compensation. All the medical services fall under the purview of the Consumer Protection Act, 1986.
For claiming or punishing the accused the Burden of Proof and Proof of Negligence mainly lies on the victim. When Res ipsa loquitur is proved before of the bench then the patient would be considered as successful in the case of medical negligence.
COMPENSATION CLAIMED UNDER MEDICAL NEGLIGENCE:
Compensation is a remedy available to the victim who has suffered from damage. Here it is mainly all about medical negligence which varies depending on standard of the case. The amount awarded to the victim’s family depends on the consequences of the case and the doctor is given a warning or the licence of the doctor is cancelled. The main aim of awarding compensation is to fulfil the damages suffered by the victim.
CASES RELATED TO MEDICAL NEGLIGENCE IN INDIA:
- KUNAL SAHA V. ADVANCED MEDICAL RESEARCH INSTITUTE
In this case, Anuradha a child psychologist had come to Kolkata, her home town and consulted Dr. Sukumar Mukherjee, for treatment of skin allergy. Initially doctor asked her to take rest but for which conditioned worsened in few days and doctor had diagnosed her with 80 mg Depomedrol injection twice a day. When her condition worsened rapidly she was admitted to AMRI and then to Breach Candy hospital in Mumbai but died due to rare and deadly skin disease called Toxic Epidermal Necrolysis. Her husband filed the case against the doctors and hospital authorities for being negligent in treating her and supreme court gave the final verdict and compensation of around 6.08 crore for her death.
- V. KRISHNA RAO V.NIKHIL SUPER SPECIALITY HOSPITAL
Krishna Rao, an officer of malaria department admitted his wife to the hospital who was suffering from malaria. But the members of hospital were negligent and diagnosed her with typhoid and artificial oxygen was provided to her though it was not needed. Since the medicine given was for typhoid she suffered with side effects. When a case was filed Rao was given compensation of rupees 2 lakhs. In this case, principle of Res Ipsa Loquitor, which means ‘the thing speaks for itself’, was applied. Thus, the compensation was awarded to the plaintiff. 
- INDIAN MEDICAL ASSOCIATION V. V.P.SHANTHA
In this case Supreme court stated that a medical practitioner except where the doctor cause service free charge to every patient by way of consultation, treatment and diagnosis, both surgical or medical would fall under section 2(1)(o) of the Consumer Protection Act 1986. The judgement passed faced lot of oppositions where free servicers were not liable for their breach of duty. When it was claimed under Consumer Protection Act, 1986 the method of practice and surgery was more transparent. The judgement did not prescribe any relief or compensation for free medical services. Consequently Burden of Proof shifted to patient to prove negligence on the doctor’s part.
Doctors are seen at high position equal to supreme power. It is duty of the doctor to be very careful and maintain his professional skills at high standards and avoid medical negligence and malpractice. It is not said that the medical professionals are negligent at all point of time. In certain cases it can’t be proved that doctor is negligent when he or she is trying to take risk having positive hope that the patient will be better. It is not doctor’s fault when it is Act of God. As same as coin there are both the circumstances where a professional could be negligent and a professional could be proved negligent without his fault. It is responsibility of the authorities to verify which is correct and to formulate laws accordingly.
- M. S. Pandit and Shobha Pandit, Indian J Urol. 2009 Jul-Sep; 25(3): 372-378. Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defence – A legal perspective.
- Vasuprabhat Shukla, Legal Services India, Medical Negligence in India Article-Legal Articles in India, Mar 1, 2018.
- Asia Jasmine, Legal Desire, Top 5 landmark judgement on Medical Negligence, April 13, 2021.