This article is written by Mitali, pursuing an Introductory Course: Legal Writing For Blogging, Paid Internships, Knowledge Management, Research And Editing Jobs from Lawsikho.com. 

Introduction

In a country like India where a doctor is treated as a God and where being a medical practitioner is considered to be one of the noblest profession, one cannot be astonished to find out that medical negligence is appallingly common. A study shows that medical litigation is on the rise by 400% in India. 1 

People in India are slowly but surely being aware about legal implications, repercussions and consequences surrounding medical negligence and malpractice. 

One of the main reason for the rise in the medical negligence cases can be that, in India, there are lack of specialized medical practitioner and more of general practitioners. India being the second most populous country in the world, there is high demand for medical practitioner which should be directly proportional to the ever growing population of India.2

Before we dive into the legal aspect of the medical negligence, let us first understand the meaning of medical negligence.

Meaning of Medical Negligence

According to Wikipedia, Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. 

The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. Medical Negligence means failure to perform or discharge any duty in the interest of a patient by a medical practitioner, which causes harm or damage or injury to that respective patient. Most Common examples of medical negligence are: Misdiagnosing a patient, surgical errors, prescribing wrong medicines & dosage, errors in anesthesia dosage etc.

When can you file a case on medical negligence?

A medical negligence case can be filed in the following situations:

Duty: According to Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, it is the duty of the medical practitioner to discharge his services within the standard care as prescribed in the rules. A medical practitioner should stand his moral grounds and serve his patients with dignity, though he has the right to choose the patient he treats as prescribes in the rules.

If in any way a medical practitioner fails to perform his duty and render his service, then a medical negligence case can be filed against the medical practitioner.

• Breach: If there is any breach while a medical practitioner is discharging his services and performing his duty then the aggrieved party who bore the brunt of the breach can file a case of medical negligence against the medical practitioner.

For example, it is the duty of a surgeon to inform a patient about various risks involved, its side effects etc., if the patient proceeds with the surgery. The failure to mention the same, would cause breach in the performance of his duties to the patient.

• Injury/ Damages: An injury caused to the patient can be the result of negligence on the part of the medical practitioner or his failure to render services in a rightful manner, i.e., the breach in his duty to care. Injury can be permanent or temporary. 

For example, a surgery gone wrong due to the negligence of the medical practitioner and caused the patient to lose his arm. This amounts to negligence on the part of the medical practitioner.

Limitation period

•  If you are suspicious that there has been a case of medical negligence with you or your loved ones then one should file a case not less than 3 years from the date of alleged negligence, as the limitation period for medical negligence expires after the completion of 3 years.

This simply means that a complaint has to be filed before the expiry period of 3 years. The court proceedings should be commenced before the expiry period of 3 years. 

Before which court do you file a case for medical negligence?

An aggrieved party can file a complaint:

1. Medical Council of India (MCI): If there is any professional misconduct by any medical practitioner then the MCI reserves the right to punish any medical practitioner as it may deem fit and in the rarest of the rarest circumstances, the MCI suspends the license of the medical practitioner.

Firstly, the matter is first referred to State Medical Council and appeal can be made to Indian Medical Council.

1. Consumer Court: If the aggrieved party wants to claim monetary compensation then they can file a case in any district consumer forum to claim monetary compensation. The amount of claim will determine in which consumer forum the case for medical negligence will be filed.
2. Local police station: If you suspect any foul play with the treatment given to you or your loved ones, then you can file case against the medical practitioner in a local police station. Local police will send those reports to the State Medical Council.

If a patient is dissatisfied with how the State Medical Council has handled a patient’s case then the patient can appeal to the Medical Council of India.

What are the essential elements to be included in a petition?

1. Facts of the Case: Details regarding the case which is given by the patient are called facts. Facts helps to determine whether the case for medical negligence can be filed or not? 
2. Issues of the case: The reason for which the case has been filed is determined by the issues of the case. By including issues in the petition one can determine the point of conflict between the two parties so that the court can help to resolve the conflict on the base of the issues stated in the petition.
3. Rule governing the case: Rule means a statute or an act which helps in determining the issues and aids the court in resolving the issue at hand by adjudication the decision at the end of the court procedure.
4. Injury / Damage: While drafting the petition for medical negligence, one should include the injury/ damage caused to the victim in a detailed manner.
5. Prayer Clause: The prayer clause at the end of the petition is of extreme importance. It should include the relief which the petitioner seeks and in case of claim it should include the amount of monetary compensation. 

Documents needed to support the claim

1. All the medical records of the patient should be provided as evidence.
2. According to Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, a patient should receive all his medical records within 72 hours from the time the request for obtaining the record is made.
3. The records should include all the summary, notes and referrals of the patient and no information should be left out.

Some important cases on medical negligence

• Kusum Sharma & Ors vs. Batra Hospital & medical Research:6

Late Shri Rk Sharma, husband of Mrs Kusum Sharma, died due to post complications of his surgery. The Appellant filed a criminal case against the defendant. The case was dismissed by the National Commission on the account of baseless allegations in order to extort money from the defendant. The National Commission was of the opinion that utmost standard care was given to the Late R K Sharma and there was no foul play.

• Bolam vs. Friern Hospital Management Committee:7

A mentally ill patient wasn’t given any muscle relaxant drugs prior to his electro convulsive therapy. The Appellant filed a case against the defendant for medical negligence. There was a divide in the opinion of the doctors regarding giving muscle relaxant drugs. It was further held that the defendant was not liable. Hence, court came out with the ‘Bolam Test’, a test to determine whether standard of care is provided to the respective patient or not.

• Indian Medical Association vs. V P Shantha & Ors:8

Consumer is defined under section 2(1) (d) under Consumer Protection Act, 1986. The issue was to determine whether services rendered by a hospital or a doctor free of charge should be included within the definition of consumer or not. It was held that services rendered by a hospital or a doctor free of charge will be included within the definition of consumer.

• Jacob Mathew vs. State of Punjab & Ors:9

The Supreme Court gave the guidelines on how to prosecute a doctor in medical negligence case. The Police & the Investigating officer might not possess the necessary knowledge of medical science require to investigate or carry out an arrest in such a case.

Conclusion

According to the given statistics, medical negligence has been on the rise exponentially. There are victims who suffers permanent damages because of the negligence of the medical practitioner. Some of the unfortunate ones, lose their life due to medical negligence of the medical practitioner. 

There are a few ways to curb the rise of medical negligence cases:

1.  The rules and regulations encompassing medical negligence should be more stringent.
2. As India is in the dire need of the specialists in the medical field, practice should be more focused on specialized field rather than general practice.3
3. Government of India should build more hospitals and in turn encourage the children at an early age to choose the medical field, so as to increase the ratio of number of doctors to patients.4
4. As India lacks in the technology sector, there is a dire need to use the latest tools and equipment to treat the patient, which will ultimately help in reducing the time and cost in treating a patient. 5

Hence, if taken an initiative at a large scale, the medical negligence cases can be reduced to a great extent.

References

1. https://health.economictimes.indiatimes.com/news/industry/medical-litigation-cases-go-up-by-400-show-stats/50062328
2. . https://www.healthcareexecutive.in/blog/shortage-of-specialists
3. https://www.healthissuesindia.com/2019/07/02/indias-shortage-of-specialist-doctors-is-still-staggering/
4. https://health.economictimes.indiatimes.com/news/industry/india-facing-shortage-of-600000-doctors-2-million-nurses-study/68876861#:~:text=In%20India%2C%20there%20is%20one,shortage%20of%20two%20million%20nurses.
5. https://economictimes.indiatimes.com/industry/healthcare/biotech/healthcare/lack-of-machines-puts-a-spanner-in-indias-ppe-plans/articleshow/75054555.cms?from=mdr
6. https://indiankanoon.org/doc/29738758/
7. https://en.wikipedia.org/wiki/Bolam_v_Friern_Hospital_Management_Committee
8. https://indiankanoon.org/doc/723973/
9. https://indiankanoon.org/doc/871062/

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