Tag: #MedicalNegligence

NCDRC awards compensation to parents of the deceased in case of Medical Negligence

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The NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION (NCDRC) observed that the parents most stressful event in their life and cause for a major emotional crisis was that they lost their 28-year-old married daughter due to medical negligence and their son-in-law in a road accident.

Sajeena and her husband, A.K.Nazeer were undergoing fertility treatment at Samad Hospital, Thiruvananthpuram. Her reports revealed that she had to go through a surgery. After the surgery was performed, one of the doctors at the hospital asked for blood transfusion. After the blood transfusion was started, she immediately started having reactions.

It has been alleged that the said reactions took place due to the use of B+ positive blood instead of O+ blood. A consumer complaint was thus filed before the state commission. A few witnessess were presented, which included the doctors who performed the surgery. According to their statements, there was no need for blood transfusion and it was given without any consultation with them. One of the witnesses who appeared stated that there are some standard procedures which have to be followed in an event of wrong transfusion of blood such as stopping it immediately, sending the blood samples and the urine for further investigation, and to preserve the balance of blood in the blood bag. It was observed that nothing of that sort had been done, hence the state commission partly allowed the complaint and granted compensation of about 9 lakhs.

The NCDRC formed two issues:

(i) whether wrong blood was transfused, if yes- then whether hospital or the blood bank is
liable?
(ii) whether it was a transfusion reaction or DIC ?

The following issued were addressed on the basis of Dr. Valentina’s notes which were admitted as an exhibit. It was clear from her notes that wrong blood was transfused to the patient and the hospital staff is liable for the negligence. Further, it was a case of transfusion reaction due to mismatch blood.

It was observed as follows:

“Thus, in our view, the afore entry itself is sufficient to prove that mismatched blood was transfused to the patient. It was due to the blood bag which was kept in hospital refrigerator and transfused on the fateful day. Moreover, it was the duty of hospital to prove the wrong blood was issued from the Blood Bank , but the Apellant failed to prove it. Proper medical record has more importance. The finding of State Commission show the glaring lapses of the Opposite Parties Nos. 1 and 2, who have not kept the transfusion register showing the number of bags, its date of receipt or use or disposal. Thus, possibility of error in identification of the blood bags or identifying the patients was more……… We, further, note that the blood bag was kept in storage of the Hospital premise. It should be borne in mind that the cross-matched blood received from the blood bank shall be transfused within reasonable time preferably within 24 hours. However, in the instant case, there is no record that when the blood was brought from the blood bank. Therefore, we conclude for Q. (i) that wrong blood was transfused to the patient and the hospital staff is liable for the negligence.”

NCDRC further relied on the Supreme Court judgment in the case of Postgraduate Institute of Medial Education
and Research Chandigarh vs. Jaspal Singh & Others wherein it has been held that mismatch in transfusion of blood resulting in death of patient is a case of medical negligence and in the instant case Sanjeeda has died due to the negligence of the hospital staff. NCDRC advised hospitals to investigate transfusion reactions:

“14.In most of the cases the hospital staff failing to respond to the signs and symptoms of a blood transfusion error. Thus the cause can be as simple as a breakdown in safety protocols or poor training. Though most hospitals and surgical centres have strict procedures on blood storage, but sometimes improper or poorly stored blood got issued. Reporting all transfusion-related adverse reactions to the Blood Bank promptly is more vital. Haemovigilance is the ‘systematic surveillance of adverse reactions and adverse events related to transfusion’ with the aim of improving transfusion safety. Transfusion reactions and adverse events should be investigated by the clinical team and hospital transfusion team and reviewed by the hospital transfusion committee.”

In light of the above, compensation of 20 lakh was awarded to the parents of the deceased.

case: M/S. SAMAD HOSPITAL vs. S. MUHAMMED BASHEER

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F172%2F2012&dtofhearing=2022-05-25&fmt=P

Medical Negligence: The Present Scenario

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Negligence:

Negligence in simple terms translates to failure in taking care of something or keeping things under check.

In legal terms, however, negligence means the breach of duty of care that results in damages. It involves failing to or omitting to do something, which the person was legally bound to do and the other person being caused damages due to such breach. Therefore we can understand that for negligence to take place, 3 essentials must be there. These being as follows:

  • The defendant is legally bound to the plaintiff to take due care.
  • Such duty must be breached by the defendant, that is he must fail to take due care.
  • Such breach of duty must result in damages to the plaintiff.

Once these 3 essentials are satisfied, the defendant is held liable for negligence.

Civil and Criminal Negligence:

Negligence under the law of torts is a civil wrong whereas criminal negligence, as the name suggests is a criminal wrong. While there is no such major difference in both types, there is a distinction in how the determination of liability is done. In torts law, the amount of negligence is examined. Whereas in criminal law, both the degree and amount of negligence are examined to determine the liability. In order to initiate proceedings under criminal negligence, the amount and degree of negligence must be higher than that of civil negligence. The ingredient of mens rea that is “guilty mind” cannot be overlooked.

Negligence by Professionals:

A professional is a person who possesses special skills or skills which are requisite to performing a task. Thus a professional can be said to be a person who has the skills to perform a task which a  person without such skills cannot perform. By this meaning, a medical practitioner is a professional too.

Hence anyone who deals with a professional must understand that it is implied for the professional to deal with a reasonable amount of care. It is also essential for the professional to make sure to practice due care and caution. 

It is however obvious that a professional is also a human and thus can take wrong decisions which may lead to a breach of duty of care and cause negligence. This raises the question, that when can a professional be held liable. A professional can be held liable on the basis of either one of two findings. These are as follows:

  1. The plaintiff did not possess the requisite skill that he had claimed to possess, due to which damage has been caused or,
  2. He did not take reasonable due care while exercising his professional skills.

The standard for judging the second condition can be determined by various tests. The Bolam test that has been held in Bolan v. Friern Hospital Management Committee is the most well-known test. The standard that had been set was that the level of skill may not be that of the person exercising the highest level of skill in that particular profession, but it should be that of an ordinary competent man practicing that particular profession.

Medical Negligence:

From the above discussion, we can say that medical negligence is the breach of duty by a medical professional to take reasonable care and that such breach causes damage to the plaintiff. 

Just like above, it can be deduced that a person can be held liable for medical negligence when they either:

  1. Do not possess the requisite skills of a medical professional that they claimed to possess or,
  2. The medical professional did not take reasonable care that an ordinary person of ordinary competency in the same field would exercise.

In Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka, the doctors had misjudged the patient’s conditioned. Had the patient’s correct condition been noticed, a neurosurgeon would have also been appointed to conduct surgery. But the surgery was performed by a doctor who had expertise in only one area. It was thus held that the doctors were remiss in their performing of the operation and this amounted to negligence.

Medical Negligence during a pandemic:

From the above case laws and essentials constituting medical negligence that have been discussed, it can be clearly said that a medical professional can be held liable for negligence. The question that arises is whether they can be held liable for medical negligence during a global pandemic. Surely if a professional who has acted negligently must be held liable, but what also needs to be considered is that reasonable care during times of a pandemic is subject to many factors. Also, the mental and physical anguish that is faced by the medical professionals at this time cannot be ignored. However, a few petitions have been filed during the pandemic in regards to medical negligence.

An ex-gratia plea had been filed before the Delhi High Court by the family of a COVID-19 patient who died due to lack of oxygen. The petitioners claimed that the patient’s oxygen level had declined tremendously and yet the hospital due to its medical negligence led to the death of the patient. The defense that represented the state government stated that the state government is offering relief of 50,000 Rs to the families of people deceased due to COVID-19.

Conclusion:

Medical negligence during a pandemic is a sensitive topic as during such a scenario, it is important for both a medical professional to be held liable for negligence but also taking into account other factors such as the government’s role in ensuring that all the hospitals are supplied with the necessary equipment and other items and also whether the negligence in question was an unavoidable circumstance or breach of duty of care. I am of the opinion that surely a professional should be held liable for their negligence, but it should be kept in mind while dealing with such a case of negligence that they are humans as well capable of making erroneous judgments especially during such crucial times of the pandemic.

This article is written by Om Gupta, a first-year law student pursuing a BBA-LLB from the University School of Law and Legal Studies.

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Relevance of Torts in Present Scenario

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Introduction

Any civil wrong for which the law provides a remedy is referred to as a tort. Torts compensate people and property for injuries caused by someone else’s negligence. Essentially implying, a tort is a civil wrong independent of a contract where the only remedy available is in the form of compensation. A tort is the French version of the English word “wrong” as well as the Roman law term “delict.” The term tort comes from the Latin word “tortum,” which denotes “twisted, crooked, or incorrect.” plays a role in disciplining organizations and individuals who cause harm to others through reckless and negligent behavior. The fundamental principle of tort law is Ubi Jus Ibi Remedium. The objective of tort is to recompense the victim whose legal right has been infringed or violated by the person who caused the damages in the first place, as well as to deter them from repeating the same breach in the future. In India, tort law is a relatively young common law development reinforced by codifying statutes, including damages statutes. Tort first appeared in India, which is still a developing country, with the establishment of British India. Following independence, India embraced British laws, including the distorted idea of tort law. While India generally takes the same strategy as the United Kingdom approach, there are some variances that could show judicial intervention, causing controversy. Because of conflicts about who should carry the economic burden of an accident and what damage should be compensable, there has always been concern over whether tort law should be restricted. Although statutes such as the Motor Vehicles Act of 1988, the Consumer Protection Act of 1986, and the Environment Protection Act of 1986 were enacted to establish tort liability in India, there is no official codification or formal legislation of tort law in our country. It has also been held that section 9 of the Code of Civil Procedure, 1908, which allows the civil court to try all civil matters, implicitly confers jurisdiction to apply tort law as a matter of justice, equity, and good conscience. As a result, the court can use its inherent powers under section 9 to expand this area of liability.

Law of Torts in Present Scenerio

A Brief Outline

COVID-19’s spread has clearly been one of the most challenging moments for the judiciary all over the world for administering justice. The judiciary in India, the world’s largest democracy, has always been challenged by the huge amount of litigation cases that come before courts every day. An Indian court can assume jurisdiction by being the site where the cause of action, the tort; occurred, according to India’s conflict of law provisions, which are yet uncodified. Analyzing the situation in other nations, India considered its own capacity to avert a pandemic, taking into account the limited resources available in a country with an inadequate health infrastructure.

With the current persistent provisions, the plaintiff(s) filing a lawsuit in an Indian court would have the onus of responsibility to prove that the Chinese government’s concealment of the virus’s nature and failure to take appropriate measures to contain it, creating an actionable act under both Chinese and Indian law, and thus the suit will be governed concurrently by both the Chinese and Indian tort law.

According to the House of Lords’ interpretation of common law principles, negligence is defined as a failure to exert the degree of care that should have been undertaken by the doer. As stated in Rajkot Municipal Corpn. vs. Manjulben Jayantilal Nakum, (1992 ACJ 792), Indian tort law is based on common law principles as;

  1. that the defendant owed the plaintiff a “legal” obligation of duty and care
  2. that the defendant breached this duty
  3. the plaintiff suffered harm as a result of the defendant’s breach

The Liability of Spread of Virus

China’s ‘responsibility of care’ to India and its residents can be traced back to the relevant sections of the International Covenant on Economic, Social, and Cultural Rights and the International Health Regulations, 2005. This legal obligation to non-nationals can be extended to include a duty to other countries and their citizens. China has breached its duty of care to the countries by failing to notify the World Health Organization in accordance with the International Health Regulations of 2005 in a timely manner despite the given signs of a public health issue and the whistleblower being subjected to traumatic measures for threatening the name of the country in an international context.

“Using a constructive knowledge criterion holds liable individuals who actively avoid knowledge of infection even when suffering apparent indications of a disease,” it was determined in the case of Endres v. Endres. California’s courts had imposed culpability in another case, Doe v. Roe, even when the person spreading the disease believed they were not infected.

Although it has not been resolved whether a cause of action for negligently disseminating COVID-19 can exist, it appears that the individuals should be held accountable because they knew or should have known that they were carriers of the virus; those people had an obligation to avoid COVID-19 transmission and thus contain the spread ensuring the right to live of other individuals.

The Liability to ensure the public health

Suits have already been brought against cruise ship operators, nursing homes, and entertainment venues, alleging that someone wrongfully exposed me/my loved ones to COVID-19, and we/they became infected/died as a result. It may be simple to demonstrate causation in some cases (for example, some who are infected by the virus were in very closed locations such as nursing homes given the knowledge about incubation periods, it is reasonable to infer that they caught the coronavirus in that location). While causation may be simple to establish, for example, prisoners with coronavirus definitely caught the disease inside prisons, there may be no negligence with the institutions’ poor health and medical infrastructure.

Doctors who prescribe drugs to COVID-19 patients that the Regulatory Authority has approved for other applications should be insulated from liability by legislation if the drugs don’t work, as long as scientific evidence supports their usage for this purpose. Liability considerations have delayed the development of new vaccinations in the past, as seen by outbreaks of smallpox and other influenzas. In 1976, when President Gerald Ford launched an ambitious effort to immunize millions of people against a swine flu outbreak, insurers and manufacturers refused. Liability shields have allowed businesses to manufacture effective therapies swiftly while avoiding legal repercussions. However, taking complete responsibility for highly new items that are developed and licensed at breakneck speed is a dangerous endeavor for countries.

Although governments’ tortious culpability should be assimilated to that of citizens, ‘there are limits to the extent to which that is achievable because governments’ character and functions differ from those of individuals. Assessing the reasonableness or unreasonableness of government policy decisions is an unsuitable matter for judicial consideration in determining government tort liability. Considerations in the context of the COVID-19 pandemic and government culpability in negligence might include the potential of harm being caused to the public and the economic loss sustained as a result of putting in place contagion-control procedures.

Medical Negligence

The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab Appeal (Crl.) 144-145 of 2004 opined that;

Negligence is defined as a breach of duty caused by the failure to do something that a prudent and reasonable person would do, or by doing something that a prudent and reasonable person would not do, based on the principles that normally govern the conduct of human affairs.

Mismanagement, denial of proper care and medical help to patients, non-observance of safety rules have all been reported, putting the lives of both healthcare personnel and patients in jeopardy. These difficulties raise the issue of medical negligence reflecting the tortious liability. In light of the harsh conditions in which doctors work, there are suggestions that medical practitioners be temporarily exempt from liability for medical malpractice. Another intriguing viewpoint is to look into alternative dispute resolution processes in which the patient can be reimbursed financially to the degree possible.

Conclusion

Rather than basing our judicial thought on English laws, we need to develop new principles and norms that effectively address the difficulties of India thus indicating a need for our own jurisprudence. The spread of COVID-19 has undoubtedly been one of the most difficult times for humanity to accept, and because the number of cases is alarmingly high with various mutant variants taking a spread, it is the responsibility of each and every individual to act responsibly with the negligent people, as well as the ruling machinery, who must be held accountable for their actions. With one recent instance of the case of Johnsons & Johnsons Talc Powder Cancer Case in tort law where 22 women in the US state of Mississippi claimed to have developed ovarian cancer after using Johnson’s talcum powder, and the firm granted them $3.6 billion amplifies the importance of tort jurisprudential evolution in India where the aggrieved would have a justified resort to resolve the grievances.

This article is authored by Aathira Pillai a 5th year BLS LLB student of Dr. D. Y. Patil College of Law.

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