This article is written by Shaunak Parulekar, a student at I.L.S Law College currently in the 2nd Year of the B.A.L.L.B course. My LinkedIn account hyperlink is This article seeks to expound upon the topic of medical negligence i.e. its meaning, various laws and consequences relating to it and liability that can be incurred by the victim of the medical malpractice/negligence. This article provides information about the concept to create as much awareness as possible.
Medical negligence is a blend of two words. The subsequent word exclusively depicts the significance, however, the importance of negligence has not been portrayed effectively it is a demonstration wildly done by an individual bringing about predictable harms to others. Negligence is an offence under tort, IPC, Indian Contracts Act, Consumer Protection Act and some more.
Medical negligence otherwise called medical malpractice is the ill-advised, incompetent, or careless treatment of a patient by a doctor, dental specialist, medical attendant, drug specialist, or other medical care proficient. Clinical negligence happens when a medical services supplier strays from the perceived “standard of care” in the therapy of a patient. The “standard of care” is characterized as what a sensibly judicious clinical supplier would or would not have done under the equivalent or comparative conditions.
“The important question isn’t how to keep bad physicians from harming patient; it’s how to keep good physicians from harming patients”. – Atul Gawande
It is absurdly compromising practice and it is delegated such because first, the person who commits the act did or ought to have anticipated that it would subject another to a severe degree of distress, and second, the size of the detectable danger was with the end goal that the actor ought to have acted securely.
For instance, after a serious operation of a patient, he is probably going to get contaminated by numerous infections due to certain reasons such as loss of blood, weakness, high dose of medicines. At the appropriate time, standard consideration is required from the specialist/doctor to give premedication for these irresistible infections. If a specialist neglects to do so and because of which a patient experiences some contamination it can cause a ton of damage or even death in antagonistic cases, the specialist is said to have committed medical negligence or medical malpractice.
There are distinct definitions of negligence. It is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances.
Think of a driver getting into an accident on the road. In a car accident case where one person caused the crash—by breaching their legal duty to obey traffic laws and drive responsibly under the circumstances—that person may be held responsible for all injuries and other losses (“damages”) suffered by other parties involved in the crash.
Doctor’s obligation to attend the patient with care
Medicine is such a profession where a practitioner is supposed to have requisite knowledge and skill needed for the purpose and has to exercise a reasonable duty of care while dealing with the patient. If the doctor or a specialist doesn’t attend a patient admitted in an emergency or under his surveillance and the patient dies or becomes a victim of consequences which could have been avoided with due care from the doctor, the doctor can be held liable under medical negligence.
This was held in Sishir Rajan Saha v. The State of Tripura that if a specialist didn’t give enough consideration to the patients in government emergency clinics because of which the patient endures, the specialist can be held subject to pay remuneration to the patient. A specialist or a clinical professional while taking care of his patients owes him a few accompanying obligations of care:
- An obligation of care in concluding whether to undertake the case
- An obligation of care in choosing what treatment to give
- An obligation of care in the administration of the treatment
A doctor acting in a careless way
Res Ipso loquitur, Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury albeit there’s no specific evidence of an act of negligence, and without negligence, the accident wouldn’t have happened. A doctor isn’t an insurer for the patient; failure to treat the patient wouldn’t add up to carelessness yet thoughtlessness bringing about a serious state of the patient would.
In Gian Chand v. Vinod Kumar Sharma, it had been held that shifting of the patient from one ward to a different, despite the need of instant treatment to tend to the patient by doing so causing damage to his health, then the doctor or administrator of the hospital shall be held liable under negligence.
Likewise in Jagdish Ram v. the State of H.P., it had been held that before performing any surgery the chart revealing information about the quantity of anaesthesia and allergies of the patient should be mentioned so that an anaesthetist can provide ample amount of medicines to the patient. The doctor in the above case neglected to do so and due to the overdose of sedation the patient kicked the bucket(died) and therefore the specialist was held obligated for the same.
The liability of the individual committing something unacceptable can be of three sorts relying upon the damage or the injury endured by the harmed individual they are:
1. Civil Liability: Civil obligation ordinarily incorporates the case for harms endured as remuneration. For instance, if there is any breach of an obligation of care while working or while the patient is under the management of the clinic or the clinical expert, they are held to be vicariously liable for such wrong committed. They are at risk to pay damages as payment. On certain occasions, the senior specialists/doctors are held vicariously liable for the wrongs done by the junior doctors.
In Mr M Ramesh Reddy v. State of Andhra Pradesh, the emergency clinic specialists were held to be careless, for not keeping the restroom clean, which brought about the fall of an obstetrics patient in the washroom prompting her passing. A remuneration of Rs. 1 Lac was granted against the hospital.
2. Criminal Liability: There may be an occasion when the patient has died after the treatment and criminal case is filed under Section 304A of the Indian Penal Code 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.
3. 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.
Medicine which is one of the noblest professions requires setting a realm which can benefit the victims of various diseases. Many doctors even the specialist sometimes neglect certain minor things to be taken care of while practising which may result in damages to the patients that could have been avoided or sometimes even the death of the patients.
An independent and unique legislature should be set up to govern the malpractice. In our country recently in a case Krishna Iyer v. State of Tamil Nadu and Others the Honorable 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. Many activists and the victims of medical negligence have been alleging to get redressal against malafide acts of medical practitioners and doctors.
In my opinion, the law should be made applicable to all the professionals practising in different areas which require a requisite amount of skill and duty of care. People in our country are already victims of many diseases and are dying due to same, let’s make efforts to reduce these deaths and focus on improvising the profession so that people do not die in the place where they come to get cured.
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