In this blogpost, Sreeraj.K.V, Student, Government Law College, Kerala writes an article on Analysis of medical negligence in the field of law. This article covers areas like definition of the term ‘medical negligence’, liability inflicted upon the medical practitioner, analysis of certain important cases as well as certain guidelines provided by the various courts in this matter.

IMG-20151029-WA0013_2Medical negligence is one of the major areas covered both under the medical laws as well as  other major statutes of India. A simple definition given for the term ‘medical negligence’ is that it is simply but a failure to exercise due care. There are three major ingredients to constitute a medical negligence

  1. The defendant has a duty of care to the plaintiff
  2. The defendant has breached that duty in one way or other
  3. The plaintiff has suffered damages due to the breach.[1]

Recently, Indian people are much aware of their rights as patients. This is mainly due to certain facts that lead to the exploitation of the patients by the hospital authorities by charging a huge amount for treatments and lack of care from the part of doctors concerned. The situation can be traced out from certain cases which dealt with seeking of redressal by the patients for damages suffered by them due to the negligence of doctor and also cases involving a breach of confidentiality arising from doctor-patient relationship. In the case of medical negligence, the doctor will be held liable for certain medical malpractices. Claim arising out of medical negligence will be both civil and criminal in nature

Civil liability

Medical negligence can be termed as a breach of duty to care. This breach of duty makes a doctor liable for the act done by him, and the patient has a right to sue him on the ground of negligence. There is an underlying fact that there must be an exercise of ordinary skill by the doctor, and the act must lead to any kind of omission or commission on his part, and it must cause harm or injury to the patient. The complaint must also be cited with best possible evidence from medical science along with an opinion of an expert in the field.

Criminal liability

Criminal liability can also be imposed upon a medical practitioner under particular situations wherein patient dies during the time of anaesthesia in an operation or any time of treatment; the death must also be due to the malicious intention or gross negligence. The doctor must be ensured with certain precautions before the administration of anaesthesia. The liability of the doctor arises when the patient or his representatives must be able to prove burden of negligence upon him. But in certain cases, the principle of “res ipsa liquitor” (things speaks for it) may come into force. In the majority of the cases, the doctor will be responsible only for his own acts, but in certain other cases, doctors will be vicariously liable for the acts done by others. Sections 52,80,81,83,88,90,91,92,304 A, 337 and 338 deals with various provisions dealing with law of medical malpractice in India.

Grounds for filing a complaint on medical negligence

  • Damage to organ due to negligence
  • Wrong treatment due to the wrong diagnosis
  • Patient is not provided with proper papers like reports, prescription and discharge summary
  • When any treatment is done not according to the established laws of medical science.
  • Any instrument left in the body, any wrong part taken from the body, a homeopathic doctor doing allopathic treatment
  • Any hospital authority failed to make the availability of oxygen cylinders.

There are certain landmark judgments in cases dealing with medical negligence.  One among them were V.Kishan Rao v. Nikhil super speciality hospital[2] in which Supreme Court held that in certain cases, principle of “res ipsa liquitor” will be applicable and in the said case, the plaintiff was awarded an amount of Rs. 2 lakh from the defendant as there was a pure case of negligence on the part of defendant.

But in certain other cases such as Jacob Mathew v. State of Punjab, [3]the court was of the opinion that in some particular situations, the doctors will be in the middle of the devil and the deep sea. There will be a situation of greater risk than the higher chance of success. In such situations, the decision of the court must be purely based on certain facts and circumstances of the cases. In cases like Anuradha Saha’s case[4], Supreme Court made certain directions that

  • Treatment with dignity is not only a fundamental right but also a human right
  • Medical authorities must deal strictly with the negligence caused by doctors and hospitals
  • Medical council of India should strictly scrutinise the conduct of doctors
  • Hospitals should be updated with new forms of medical disciplines and diseases
  • Doctors must act with much awareness and wisdom so that valuable lives can be saved.

Bolam test

Bolam test, in the field of medical science as well as medical law, plays a pivotal role in deciding the gravity of negligence from the part of a doctor who himself represents to be an expert in his area of operation, but due to some certain circumstances, committed an act involving medical negligence. In such circumstances, medical law is of the opinion that Bolam test states that if a doctor reaches the standards of a responsible body of medical opinion, then he is not negligent.[5] In such instances, an expert in this field is appointed, and he must undergo reasonable examination towards the act done by the accused doctor, and if his observation comes to be in favour of the doctor, then he will be free from his liabilities. This principle was derived from an English case of Bolam v. Friern Hospital Management Committee[6]. It is also mentioned by the experts that Bolam test is just one of the test in dealing with negligence, the test gains relevance only when there is a situation which leads to the breach of duty from the part of the medical practitioner.

Conclusion

Medical negligence arises out of two situations mainly from the part of the doctor and from the part of the hospital staff. In certain special instances, the doctor may act under a criminal intention of purposefully undergoing medical negligence upon certain vengeance to the patient directly or indirectly. There are certain cases dealing with such matters. Hospital management plays a very crucial role in appointment as well as a code of conduct of the doctors. Various medical council of the State as well as Indian Medical Association can implement strict guidelines regarding the attitude of medical practitioners to the patients. There are certain reports which state that majority of the doctors practising at Government Hospitals are undergoing private consultations on very high fees and even without coming to their hospitals regularly. In one sense or the other, these acts also lead to medical negligence and also the right of reasonable health care facilities for the people mainly who are not so financially sound. The government can implement various rules and regulations for making strict control against certain acts by the medical practitioner under the notion that Government doctors are meant to serve the public under reasonable rates or even free of cost rather than practicing in private and infringing the rights of the people. Medical practitioners must also take great conscious during the time of diagnosis as well as prescribe proper treatment at the proper time.

[1] Retrieved on: http://www.vakilno1.com/legal-advice/law-medical-negligence-india.html

[2] V.Kishan Rao v. Nikhil super speciality hospital (2010) 5 SCC 513

Retrieved on: https://indiankanoon.org/doc/1920027/

[3] Jacob Mathew v. State of Punjab (2005) 6 SCC 1

[4] Advance Medicare and Research institute v. Dr. Kunal Saha and ors CIVIL APPEAL NO. 692 of 2012

Retrieved on: http://judis.nic.in/supremecourt/imgs1.aspx?filename=40897

[5] Retrieved on : https://en.wikipedia.org/wiki/Bolam_v_Friern_Hospital_Management_Committee

[6] Bolam v. Frierrn Hospital Management Committee [1957] 1 WLR 582

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