This article is written by Sunil Yadav, a student of CNLU, and Oishika Banerji of Amity Law School, Kolkata. This article provides an analysis of the ingredients that constitute medical negligence on part of the hospital that has come into consideration by means of various decisions by the Indian courts.
The medical profession is viewed as a noble responsibility since it aids in the preservation of life. A patient usually seeks out a doctor or facility based on their reputation. A patient’s expectations are twofold, namely, physicians and hospitals. Both are expected to give medical treatment using all of their knowledge and ability, and they are also required not to hurt the patient in any way due to negligence, carelessness, or reckless behaviour on their part. Though a doctor may not always be able to save their patient’s life, they are required to apply their specific knowledge and ability in the reasonable way possible while keeping the patient’s best interests in mind. A doctor’s and a hospital’s failure to fulfil this commitment is essentially a tortious liability. A tort is a civil wrong (right in rem) as opposed to a contractual duty (right in personam), and a violation that requires court intervention in the form of monetary compensation. The right of a patient to get medical care from doctors and hospitals is thus fundamentally a civil right. Because of informed permission, payment of a fee, and performance of surgery/providing treatment, among other things, the relationship takes the shape of a contract to some extent, but key tort features remain intact. When a hospital fails to check the qualifications of an attending physician before awarding him or her privileges at the hospital, or when it enables a physician who it knew or should have known was incompetent to treat patients at the hospital, it may be held accountable for its own negligence. The current article addresses the matter in hand with the help of various court judgments.
What is medical negligence?
Medical profession is one of the oldest profession and most humanitarian one. Doctors in India are treated as second life savers after God. The standard of care from doctors and hospital authority is expected to be more in comparison with other cases of negligence. So proper care must be taken by the authorities and the doctors side to avoid medical negligence. The Black law dictionary definition of negligence “ conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statue or valid municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes”.
The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty (c)Cause in fact (d)Proximate Cause and (e) Damage. These are the basic elements of negligence, to prove the case of negligence all these criteria must be satisfied and in cases of medical negligence in India, the ambit of duty of care and proximate cause increases, as there are life involve in this situation.
When there is civil wrong (right in rem) against a contractual obligation (right in persona), with a breach of duty which invites the intervention of judges to grant certain remedy for the damages then the tortious liability arises but the standard of care is more in medical cases as compared to general cases.
Principle of Standard of care was laid down by Supreme Court in the case of Dr. Laxman Balakrishna Joshi vs. Dr. Trimbark Babu Godbole AIR 1969,SC 128 and A.S Mittal .v. State of U.P, AIR 1989 SC 1570 . In these cases, different kind of negligence were introduced which were further question of qualification for application in other cases.
There is an exception for medical negligence that if a doctor does not charge fees for his act then he cannot be sued for medical negligence under Tort as per the definition of service which is mentioned in Section 2(1) of Consumer protection Act 1986.
Medical negligence on part of the hospital
In order to provide quality patient care, hospitals must have a sufficient number of registered nurses on duty at all times. If a hospital fails to do so, it may be held accountable for damage to patients caused by a nurse shortage. When a hospital’s personnel fail to follow the directions of a patient’s private attending physician, another area of possible responsibility develops. In contrast, if a hospital employee discovers that a private physician’s treatment plan is plainly contraindicated but fails to conduct a reasonable inquiry of the physician, the hospital may be held accountable. In the case of medical negligence, a hospital’s culpability might be either direct or vicarious. Direct culpability refers to the hospital’s failure to provide a safe and appropriate environment for treatment as promised and vicarious liability refers to an employer’s responsibility for its workers’ negligence.
In the landmark case of Pooja Sharma & Ors vs. Maharaja Agrasen Hospital & Ors (2019), the Supreme Court reaffirmed that a hospital is also vicariously liable for medical malpractice perpetrated by medical practitioners engaged or retained by it. A bench of Justices UU Lalit and Indu Malhotra had observed that it is common knowledge that when a patient visits a hospital, they do so because of the facility’s reputation and in the belief that the hospital’s authorities will provide adequate treatment. If the hospital fails to carry out its responsibilities via its physicians, whether they are hired on a job or on a contract basis, the hospital must defend the acts of commission or omission on behalf of their doctors.
The facts of the case that prompted these findings included a newborn who became permanently blind because a medical disease linked to preterm delivery, Retinopathy of Prematurity (ROP), went untreated until it reached the irreversible level of Stage 5. The hospital and its employees are accountable for medical malpractice since the infant’s parents were neither informed nor instructed about the risk of ROP in a preterm newborn. The baby was not examined by the hospital and the ophthalmologist as per usual protocol. The doctors should have been completely aware of the increased likelihood of ROP in a preterm infant. The Bench affirmed a compensation amount of Rs 12 lakhs, based on additional criteria such as the case’s lengthy pending status and monthly medical expenditures.
Ingredients constituting medical negligence on the part of the hospital
Medical negligence on the part of the hospital is not easy to determine unless there is evidence on record to show otherwise. Every death of a patient cannot be regarded as a death caused by medical negligence itself. The hospital or the doctors employed, may be found accountable for negligence based on one of two findings,
- Either they lacked the required expertise that they claimed to have, or
- They did not execute the talent that they did possess with reasonable competence in the specific circumstance.
The standard for determining whether the person accused was negligent would be that of an ordinary competent individual using ordinary skill in that field. Every professional cannot claim to have the greatest degree of experience or abilities in the field in which they work. Although a highly trained professional may have superior traits, this cannot be used as the basis or yardstick for measuring the work of a professional charged with negligence. The essential ingredients that are necessary to cook up medical negligence have been explained hereunder.
The National Consumer Disputes Redressal Commission had found that claimed medical negligence was not shown in the matter of Ms. Neha Kumari and Anr vs. Apollo Hospital and Ors (2003), since the complainant had complicated congenital abnormalities of the spine and entire body, as indicated by a pre-operative CT scan. However, on the issue of the hospital’s vicarious liability for the consultants’ negligence, the Hon’ble Commission, relying on the judgment in Basant Seth v. Regency Hospital O P (1994), rejected the hospital’s argument and held that the hospital is vicariously liable for any wrongdoing claimed by the consultants.
Absence of consent on the part of the patient
For the sake of diagnosis, treatment, organ transplant, research, disclosure of medical information, and educational and medico-legal objectives, there is a legal obligation to get prior agreement (from living patients) on the part of the hospitals and doctors. Hospitals will be held responsible for medical negligence if prior consent of the parties has not been taken before undertaking any kind of medical practices on the patient.
Mental anguish caused to patients and families because of the hospital’s actions
Spring Meadows Hospital and Anr. v Harjol Ahluwalia (1998) resulted in a payout of Rs. 5 lacs for mental agony given to the parents of a child who became totally disabled for life, in addition to a settlement of Rs. 12 lacs for the child. The insurance was supposed to pay Rs. 12 lacs, while the hospital was supposed to pay the rest. Despite the fact that the insurance company took a stance since the nurse who gave the kid the adult dose of injection Lariago was unqualified, the Apex Court did not address this issue while adjudicating negligent cases. As a result, it’s essential to remember that physicians and hospitals should not only get a Professional Indemnity Insurance Policy but also ensure that the nurses and other hospital personnel who are hired as a result of it are qualified.
In Nizam Institute of Medical Science and Ors vs Prashanth S. Dhananka (2009), the Supreme Court of India considered important issues such as what constitutes medical negligence, a hospital’s duty to engage a specialist when one is available, a hospital’s vicarious liability for doctors’ and staff’s omissions and commissions, and compensation for mental and physical torture. The Apex Court had observed that once it is established that the patient was admitted to a certain hospital and evidence is sufficient to show that he died due to a lack of adequate treatment and negligence, the hospital bears the burden of proving that the treating doctor or hospital was not negligent. In any instance, the hospital is in a better position to divulge what treatment was given to the patient or what drug was given to him. The hospital has the responsibility of ensuring that there was no lack of care or thoroughness. Hospitals are institutions, and people expect better and more efficient service. If the hospital fails to discharge its responsibilities through its doctors, whether on a job or on a contract basis, the hospital must justify its actions.
Absence of medical ethics in handling accident victims
The National Consumer Dispute Redressal issued a landmark ruling in the matter of Pravat Kumar Mukherjee vs. Ruby General Hospital and Ors, (2005), where it questioned the hospital’s care of an accident victim. The case concerns the untimely death of a young man, Shri Sumanta Mukherjee, a second-year B.Tech. Electrical Engineering student. On January 14, 2001, a bus from the Calcutta Tramway Corporation collided with the deceased’s motorbike at Netaji Subhash Chandra Bose Engineering College, Kolkata. Sumanta was conscious when he was carried to the hospital, which was roughly a kilometre away from the accident scene. A mediclaim policy provided by the New India Assurance Co. Ltd. covered him for Rs. 65,000/-. The deceased was aware of the policy when he arrived at the hospital and presented the mediclaim certificate he had in his wallet. He was informed that treatment fees will be reimbursed and that his treatment would begin immediately. In order to keep its promise, the hospital began treating patients in its emergency room with moist oxygen, suction, and injections of Driphylline, Lycotinx, and titanous toxoid.
The respondents, Ruby Hospital, demanded an urgent payment of Rs. 15000/- and terminated treatment until the money was not transferred promptly, notwithstanding the fact that the accompanying people from the general public had promised to pay the money. The people in the crowd were obliged to move the guy to National Calcutta Medical College, which was around 7-8 miles from Ruby hospital as the latter was stubborn and stopped treating the patient after 45 minutes. The patient died on the way to the National Calcutta Medical College and was pronounced dead there.
The Commission ordered the opponent, Ruby Hospital, to pay the complainant Rs. 10 lakhs in damages for mental anguish. The Commission had further viewed that its decision in the present case would serve the objective of bringing about a fundamental change in the mindset of hospitals toward delivering care to human beings as human beings. The need for ensuring a human touch, proper code of conduct, and execution of vested responsibilities, rests solely on the hospital and its authorities.
Vicarious liability of hospitals
The principle of vicarious liability is based on a latin maxim “qui facit per alium facit per se” which describes that the one who acts through another act in his or her own interest. The patient only requires diligent and proper care, if any of the staff of the hospital is negligent in the performance of their prescribed work, the hospital will be held liable on the negligent conduct of even borrowed doctors for specific performance of certain operations. This principle was established in the case of Aparna Dutt .V. Apollo Hospital Enterprises Ltd. (2002 ACJ 954 (Mad. HC).
Hospitals have been also held liable for not providing adequate medical facility as it was held in Paschim Bengal Khet Mazdoor Samity and Ors. v. State of Bengal(1996(4)SC260).
Hospitals are also held vicariously held liable if they are not able to provide proper sanitation facility, as it happened in Mr. M Ramesh Reddy .V. State of Andra Pradesh [2003 (1) CLD 81 (APSCDRC).
Medical negligence cases and ethics
In some cases of medical negligence, the compensation to the victim has given looking on the ethical values related to humanitarian basis as we can infer with the case of Pravat Kumar Mukherjee Vs. Ruby General Hospital and ors 2005 CPJ 35 (NC). In this case National Commission of India delivered a land mark judgment for treating of accident victim, what happened in this case the complainant were the parents of deceased boy named Samanate Mukherjee a 2nd year B.tech boy who studied in Netaji Subhas Chandra Bose Engineering College , the complaint was filed in National Commission of India. The boy was hit by a Calcutta transport bus and rushed to the hospital which was 1 km from the accident spot. The boy was conscious when he was taken to hospital and he showed his medical insurance card, which clearly says that the boy will be given Rs.65,000 by the Insurance company in case of accident, relying on it hospital started treating boy but after giving some initial treatment hospital demanded Rs15,000 and on the non- payment of the demanded money hospital discontinued treatment of the boy and the boy was rushed to another hospital in the way the boy died. This was the case and in this case the National Commission held Ruby hospital liable and provided Rs. 10 lakhs as compensation to the parents. So, in this case the court looked on humanitarian basis and compensation was awarded to the complainant.
Landmark judgment on medical negligence
When we think about landmark judgment in medical negligence cases the first judgment that comes into our mind is one of the high profile and most talked case with the highest amount of compensation granted till date. Kunal Saha Vs AMRI (Advanced Medical Research institute ) famously known as Anuradha Saha Case, this case was filed in 1998 with the allegation of medical negligence on Kolkata based AMRI Hospital and three doctors namely Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Balram Prasad. In simple layman term, the wife was suffering from drug allergy and the doctors were negligent in prescribing medicine which further aggravated the condition of patient and finally led to death. In brief this was the facts and circumstances of the case, in this case the final verdict was given by the Supreme court on 24th October 2013 and a compensation of around 6.08 crore for the death of his wife.
In the case of V.Krishan Rao Vs Nikhil Super Speciality Hospital 2010, Krishna Rao, an officer in malaria department filed a complaint against the hospital for negligent conduct in treating his wife. His wife was wrongly treated for typhoid fever instead of malaria fever, due to the wrong medication provided by the hospital. Finally, the verdict was given and Rao was awarded a compensation of Rs 2 lakhs. In this case, the principle of res ipsa loquitor (thing speak for itself) was applied and the compensation was given to the plaintiff.
Harish Kumar Khurana v. Joginder Singh : a legal insight
A Division Bench led by Justices Hemant Gupta and A.S. Bopanna of the Supreme Court of India has ruled in the recent case of Dr. Harish Kumar Khurana v. Joginder Singh (2021) that a hospital’s and doctor’s omission to treat a patient does not automatically make them accountable for medical malpractice. The instant was a case where the patient, set to undergo surgery, suffered cardiac arrest after she was administered anesthesia. This case is necessary to be discussed in light of this article’s title because the Apex Court has laid down the criteria for determining medical negligence on the part of the hospital and doctors which in the present case were not fulfilled and hence did not amount to medical negligence.
The Court stated that in order to show carelessness, there must be evidence on file or sufficient medical proof must be presented. Apart from the charges made by the claimants before NCDRC, no medical evidence was presented to demonstrate that the doctor or the hospital was negligent, and the doctor actually clarified his stance pertaining to the medical procedure to maintain that there was no medical negligence. The Court stated that the NCDRC’s decision appeared to be based on speculation rather than medical proof.
Informed consent of the patient
The Court took into account the fact that the consent for the second operation was obtained solely from the patient’s spouse and not from the patient herself. The Court observed that the patient’s, as well as her husband’s permission, was obtained during the initial procedure. The patient was recovering from the first operation at the time of the second procedure, and she was notified of the need for the second surgery. Her husband’s informed permission was gained in such a situation. Hence, neither the hospital nor the doctor who administered the operation can be held liable.
Noting in the case sheet
Because the adjudicating authority is not a medical expert to record an independent opinion, medical evidence pointing out malpractice in providing anesthesia even in that scenario was necessary to be presented in order to reach the judgment that there was negligence. The burden of the same rested on the negligent-claiming party and neither the hospital nor the concerned doctor. Therefore, if the hospital can show that the doctors they have hired and who have administered a medical practice to the concerned patient, have noted down all the procedures administered in a uniform manner, as a form of record, neither the hospital nor the doctor will be held liable for medical negligence.
Res ipsa loquitur
When considering whether the concept of res ipsa loquitur (things speak for themselves) may be used in situations of medical negligence, the Court noted that the claimed negligence must be so obvious that the principle of res ipsa loquitur can be applied, instead of being applied on the basis of perception. The Apex Court clearly stated that the res ipsa loquitur principle is only used when the neglect is very clear. Therefore, for hospitals to be held liable for causing medical negligence, the negligence on their part has to be clear and a part of the facts of the case.
Defense of medical profession
In defense of medical profession Supreme court in Kusum Sharma & Ors vs. Batra Hospital and Medical Research case held that the law of negligence has to be applied according to facts and circumstances of individual case. No one can ignore that medicine is an evolving science, and there is no precise outcome of effect for every person. The operations involve certain calculated risk which cannot be denied because of complication in the operation if some risk is done, the doctors cannot be held liable for negligence as the patient himself has consented to the risk involved in the operation.
In another case of Jacob Mathew .V. State of Punjab, the Supreme court held that in some cases of medical profession the doctors are equipped in certain situation where they have to make choices between a devil and the deep sea. Sometimes in certain situation there must be greater risk in the operation but higher chances of success and in another move there would be lesser risk but higher chances of failure. So the decision, that which course would be follow will depend on facts and circumstances of case.
The hospital administration is accountable not only for their nurses, physicians, and other professionals but also for anesthetists and surgeons who practice independently but admit/operate a case in the hospital premises. It makes no difference whether they are full-time or part-time, permanent or temporary, resident or visiting consultants. The hospital administration is normally held accountable for any carelessness on the part of such workers. Patients go to the hospital and tend to get hospitalized relying on the hospital to provide medical services for which they pay a price. The hospital in return, therefore, is required to offer such a level of secured medical services, and in the event of a deficit in service, or where the surgery was performed without due care and caution, the hospital must be held culpable. On the scrutiny of leading medical negligence cases of India, certain principles should be taken into consideration while pronouncing the judgment in medical negligence cases.
- Negligence should be guided upon the principle of reasonableness of common man prudence and negligence must be established in order to give the compensation in certain cases.
- Medical profession requires certain degree of skill and knowledge, so the standard of care in cases of medical professional is generally high and should also be taken into account while giving the judgment.
- A medical professional can be only held liable, when the standard of care is reasonably is less than the reasonable care that should be taken from a competent practitioner in that field.
- When a choice has to be made between certain circumstance when there is higher risk involved and greater success is involved and lesser risk with higher chances of failure, the facts and circumstances of the individual case should be taken into the consideration.
- No negligence will apply on medical professional, when he performs his duty with the utmost care that should be taken, and he had taken all the precaution.
- Medical professional should not be harassed unreasonably and unwanted apprehension and fear should not be created on the medical fraternity that they can give their best in certain cases where it is required, they should be given some liberty in certain peculiar situation where they need to make their judgment without any apprehension freely. So that it can be beneficial for the society.
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