This article is written by Leepakshi Rajpal.

Introduction

This article talks about the legal actions that have to be taken against a doctor if he treats his patients the wrong way or gives them the wrong medicines. This comes under medical negligence because it is the breach of the duty of care on the part of the doctor and the patient has no fault in it. Apart from that, the doctor acted negligently because of which the harm or damage was caused to the patient. So, this all will be dealt by us in detail in the following article and make sure you read it, so that next time you go to a doctor and he treats you wrong, you got to show him his negligent act in the court and that you can sue him for that.

In India, we have been noticing now and then that the medical negligence is paving its way in our medical system and the doctors are not careful regarding their own actions and treatment they do. Apart from that we also need to consider that this article publishes in context of the Patient’s rights and which imbibes in it the essence of human rights and right to life all over the world. This trend of medical negligence is visibly making a difference as we can see that there are so many cases pending in the court regarding the medical negligence and that people of our country have become aware of their rights towards the medical negligence conducted over them or their loved ones. The patient-centered initiative has led the doctors to realize the importance and vitality of their duty and the duty of care as well. When we talk about this initiative it should also be considered with regards to the economic development and advancement of the country and this initiative has proved to be a great one especially considering the spending by the State and the maximum private investment in the field of healthcare. The efforts of the Supreme Court in constitutionalizing the right to health as a fundamental right is an achievement in itself. The adjudicating process of criminalizing the medical negligence is a growing process and be it a consumer forum or the civil or criminal court. It is principles relating to negligence, vitiated consent and breach of confidentiality. However, it is equally vital to understand the needs of the patient and that the patients right will not be sacrificed at the cost of professional integrity and autonomy of the medical practitioner. What we need today is a right balance between the both failing to recognize which will be lethal and devastating.

Procedure For taking a Legal Action

When you are confused as to when and where to go. Follow these steps:-

When we talk of medical negligence, the thrust of tortious liability arises and the victim can receive compensation for the injury or loss suffered by him. The liability can be civil as well as criminal but here we are talking about civil liability. There are two purposes of the tortious liability:-

  1. The first reason is that it provides compensation in terms of money to those injured as a result of the negligence of doctors or hospitals, thereby operates as a source of indemnity.
  2. Secondly, the reason is that the court imposes sanctions on the guilty professionals, so it functions as a deterrent to the future negligent behavior.

The writ jurisdiction of the high courts has smaller jurisdiction as compared to the scope and dimension of the law of torts in relation to the medical malpractice. The victim may move to the Supreme Court or the High court under the Constitution only when there is infringement of the “right to life” envisaged in Article 21 of the Indian Constitution, but when it comes to the medical malpractice by a private health provider, neither the Supreme Court or the High court have jurisdiction over the same. Whereas the civil court may exercise its jurisdiction over the government as well as private health care providers under the tort law. Any person or his family member may institute a suit claiming damages in the court specified herein. According to the procedure law, an action for negligence where the total compensation claimed is less than fifty thousand rupees will fall under the jurisdiction of the Civil Judge (junior division). If the amount of compensation exceeds fifty thousand, the litigation has to be instituted in the civil court (senior division). An appeal lies to the District Court from the order passed by the Civil Judge (senior division). An appeal may also be preferred in the High court of the State concerned, besides preferring the appeal in the Supreme Court.

What is Medical Negligence?

The medical profession is a noble profession and is not only considered to be one. It helps in preserving life, and sometimes, it is not because that you were to be saved from death but it is because of the doctor that your life is saved. A patient generally approaches the hospital with a view that the doctor will cure him or save him from the disease he or she has been suffering from. This happens when the doctor has a reputation and based on that reputation, his clients are built up in the market. A doctor figures in the scheme of the god as he stands to carry out his command. When we consider the expectations of the patients that are admitted, they are two-fold and have two phases. First is that the doctors and the hospitals provide the medical treatment to the patient with the knowledge that they have and the skills that they possess. Second is that the doctor or the medical practitioner will not do anything that risks the life of the patient or causes him to die because of the negligence. But it is always said that it is not always that a doctor can save your life, if it is so and they feel that the patients lie can be risked, they take the consent form from either the patient or the family members of the patient so that they are not at fault, however, provided that they perform their duty with the reasonable duty of a care. The patient, therefore, expects a doctor to reasonably take care of him in the course of his duty towards the patient so that no negligence causes the patients life to death. It is because his negligent act can lead to the death, or any serious harm or injury is caused to the patient which will damage not only the patient but also the reputation of the doctor and the hospital at large. The doctor also needs to obtain information which is essential for the treatment of the patient and also needs to inform the patient and take his prior consent before performing a major treatment or a surgery or payment of a fee. It is human that sometimes negligence can happen but a doctor in his course of duty cannot be negligent because it is his duty to take care and failure to perform his duty can lead to death or harm to the patient. This liability can also be divided into parts, tortious or criminal. A tort is a civil wrong and when the doctor fails to perform his duty towards the patient then he fails to perform contractual obligations. Therefore when the patient’s right to receive medical advice from the doctor is the contractual relationship between them. What constitutes the contractual relationship is the right to receive the medical attention, form of consent and the payment of a fee. There can be other factors as well but they were mentioned to name a few.

In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. the State of U.P., AIR 1989 SC 1570, it was held that when a patient goes to the doctor for medical treatment or consultation, the doctor owes a duty to the patient. Those duties are

  1. Duty of
  2. Duty of care in deciding the kind of treatment
  3. The duty of care in the administration of treatment being given.

If any of the above articles are breached then the duties give a rise to the cause of negligence and the patient may recover damages from the doctor in such circumstances. In the above case, the court observed that the negligence has many manifestations, which is that it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, gross negligence, criminal negligence, hazardous negligence, willful negligence, or negligence per se. The definition of the negligence according to the Black’s Law dictionary is the “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 the statute or valid municipal ordinance it can be said that without hesitation or doubt that no careful person would have been guilty of it or that in an ordinary course of manner, the act could not have been committed.  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/

Tests of Bolam and Bolitho

In Medical Negligence, as far as the law of negligence is concerned the medical profession is in a privileged position because it is recognized that the medical opinion may differ from doctor to doctor. Accordingly, it is sufficient that if a doctor surgeon, midwife or a nurse follows a practice that is adopted by a body of medical opinion, be it the doctor or the hospital. If there is such a body of medical opinion and it is followed then the medical practitioner will not be liable for any adverse outcome despite the existence of another medical practice that would have adopted a different course which could or would have produced a better outcome. This is the Bolam Test.

The reason why this is called the Bolam test is that of the case of Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118. It established that in order to determine whether the defendant has fallen below the standard of care that is required to be taken, and that the regard must be shown to a responsible medical opinion, and to the fact that reasonable doctors may differ. A Practitioner who complies with the current practice and is not negligent is believed to be doing so merely because of the existence of the body of opinion which would have a contrary view.

In the Bolitho test, i.e. in the case of Administrarix of the Estate of Patrick Nigel Bolitho v City and Hackney Health Authority (1997) 4 All ER 771, it was held that the doctor could be held liable for the negligence in respect of diagnosis and treatment despite a body of professional opinion who is sanctioning his conduct where it had not been shown to the judge that the body of the expert opinion relied on the reasonable or responsible degree of care which any other person would have taken with respect to the work so provided. In the vast majority of the cases, the only thing that distinguished experts in the field were a particular opinion would demonstrate the reasonableness of the opinion. However, if in certain cases if it is proved that the reason that was given was not a logical on then the court or the arbitrator decides as to whether the negligence existed or not at the very first place. It is for the court to decide whether the requisite logical basis for a defendant’s expert medical opinion is absent.

The legal aspect of the whole case that arose was that what is reasonableness, illogical or irresponsible.

  1. It does not matter whether it is a minority view or not, just being the minority cannot be illogical in accordance with the Bolitho test.
  2. If at all there arises a doubt regarding the professional approach of the expert team then the court itself determines the logical and the legal part involved.
  3. When a person who prefers to be out of the box and has an out of the box idea and considers to be a fact, then the court also looks into these kinds of cases
  4. A practice is illogical if there was a clear precaution mentioned or there was a notification of the same indicating that the person should take precautions. However, if there are risks attached to the precaution and one body of medical opinion differs from the other person then the court determines the balance of risks involved. The precaution that should be mentioned is the clear precaution and not a mere indication one. Then the judgment is passed on the basis of the balance of risks and the logical opinion that the board has.

Bolitho test also offers symmetry and balance between the plaintiff and the defendant’s expert evidence. The defendant’s expert has only to persuade the court that his views are capable of withstanding what the logical arguments are and not satisfy the court of the same whereas the plaintiff has to satisfy the court as to the logical analysis of the argument. However, the plaintiff has to support both the things.

When does the Liability Arise?

The liability of the doctor arises not when the patient has suffered an injury, but when the injury has resulted due to the conduct of the doctor. So, for instance, I go to the doctor, and the doctor while applying the bandage and cutting it off, cuts off the tissue of my skin, then that is where the liability of the doctor would arise because he did not take care or he was negligent enough and fell below the reasonable care. In other words, the doctor is not liable for every injury, he is only liable for that injury which has been caused by the doctor himself. In other words, the doctor is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show that what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.

When it comes to the causation part, the court has held that it must be shown that of all the possible reasons for the injury, the breach of a duty of the doctor was the most probable cause. It is not sufficient to show that the breach of duty is merely one of the probable causes. Hence, if the possible causes of an injury are the negligence of the third party, an accident, or a breach of a duty of the doctor was the most probable cause. It is not sufficient to show that the breach of duty is merely one of the probable causes. Hence, if the possible causes of an injury are the negligence of a third party, an accident, or a breach of duty care of the doctor, then it must be established that the breach of duty of care of the doctor was the most probable cause of the injury to discharge the burden of proof on the plaintiff.

Normally, the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence.The following are the necessary conditions of the principle of res ipsa loquitur.

  1. Complete control rests with the doctor.
  2. It is the general experience of mankind that the accident in question does not happen without negligence. This principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without negligence. In the absence of any such explanation, the liability of the doctor arises.

Normally, a doctor is held liable for only his acts (other than cases of vicarious liability). However, in some cases, a doctor can be held liable for the acts of another person which injures the patient. The need for such a liability may arise when the person committing the act may not owe a duty of care at all to the patient or that in committing the act he has not breached any duty. A typical example of a case where such a situation may arise is in the case of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be liable even if he actually commits the act which causes the injury. In such a case, it is the duty of the senior doctor to have advised him properly. If he did not do so, then he would be the one responsible for the injury caused to the patient, though he did not commit the act.

Situations where liability does not arise

A liability of the doctor may not arise in the following circumstances:-

  • The fact may be that the doctor has a valid defense for the injury being caused to the patient.
  • Or the case may be that there is no breach of duty of care
  • The error of judgment can be either due to mere error of judgement or error of judgement due to negligence, which means that the time when the doctor took the decision, the decision was not wrong, however it was only wrong with a course of time, and that it turned out to be wrong later on.

What constitutes Medical Negligence?

Medical negligence is not only constituted by the failure of an operation or the side effects of the operation because negligence and especially medical negligence is defined in the sense of the breach of the duty of care, and hence the duty of care not in its literal sense but in its golden sense, that the operation or the surgery is happening because of the doctor himself. Therefore, it is necessary for the harm to be caused by the doctor himself, for instance, if the doctor gives his patient poison instead of the medicine because they looked alike. So, in such a circumstance, the medical negligence is of the doctor that it was because of whom the patient died, had it happened that the patient itself was in comma and the medicine that the doctor gave was right but it reacted in his body differently and he dies, then the doctor would not have been medically negligent.

In the allegation of negligence in a case of wrist drop, the following observations were made. Nothing has been mentioned in the complaint or in the grounds of appeal about the type of care desired by the doctor in which he failed. It is not said anywhere what type of negligence was done during the course of the operation. Nerves may be cut down at the time of operation and mere cutting of a nerve does not amount to negligence. It is not said that it has been deliberately done. To the contrary, it is also not said that the nerves were cut in the operation and it was not cut at the time of the accident. No expert evidence whatsoever has been produced. Only the report of the Chief Medical Officer of Haridwar has been produced wherein it said that the patient is a case of post-traumatic wrist drop. It is not said that it is due to an operation or the negligence of the doctor. The mere allegation will not make out a case of negligence unless it is proved by reliable evidence and is supported by expert evidence. It is true that the operation has been performed. It is also true that the Complainant has many expenses but unless the negligence of the doctor is proved, she is not entitled to any compensation.

Procedure to Register Complaint of Medical Negligence

When a patient suffers from the medical negligence he is definitely seeking for the compensation or the remuneration in return. When a doctor is the authority to take care of the patients then he should be best at his skill because the skill and the knowledge and the role of a doctor involve noble practicing. A reasonable degree of care is required to be taken, which means that the care is neither a very high amount of care nor very little which means care which any other doctor would have taken while performing his duty. This is what the law requires it to be. You can file a complaint in only certain circumstances which are mentioned below:-

  1. When there is damage to the organ due to negligence
  2. When wrong treatment is done due to the wrong diagnosis
  3. When the money receipt or the prescription summary or the tests reports are not provided
  4. When the treatment was chosen is not accepted by the medical norms
  5. When the doctor performs an action which is res ipsa loquitur
  6. Medical negligence will be proved in case all the three requirements are proved to be true
  7. Government hospitals can be made liable if the contribution of such negligence is from the employee of the hospital and then the hospital can deduct the amount of compensation from the salary of the employee.
  8. The hospital can also be negligent is it is a case of non-availability of oxygen cylinder either because of the hospital has failed to keep available a gas cylinder or because of the gas cylinder being found empty.

Duty of care towards patients – Private hospital vis-a-vis Government Hospital

This part of the article talks more about whether malpractice is done more by the government hospitals or the private hospitals. As to this, the answer remains that depends upon the circumstances in which the doctors say, but what you can do is consider the various factors before choosing either the government hospital or the private hospital.

Five things to consider while making a discussion whether to consult a private hospital or go to the government ones.

  1. The number of facilities – The number of facilities that a government hospital provide will be less as compared to the private ones, considering the Indian scenario, but when we look at the foreign scenario, be it in US or Singapore, the medical facilities that a government hospital provides is way better than any other hospital. The queues in the government hospital in India do actually take a lot many lives, and the quality delivered can also be questioned. Therefore, chose before you land into more trouble than you are actually engaged in.
  2. The Size of the Facilities – When you go to a hospital obviously, you look for the number of facilities available and at what scale, therefore when you go to a private hospital the amount of the facilities you may receive will definitely be higher than that of the government hospitals. When a person goes to government hospital then the accommodation and other facilities will be different and may not match up to the expectation of the people especially in India.
  3. Quality of Professionals and Prevalence of Medical Negligence – When you go to a government hospital you may not find as qualified doctors as in the private hospitals because private hospitals offer specialised doctors who are more trained in a specific field rather than being a general physician, which in turn raises the quality of the service that they provide. When it comes to the part of the medical negligence, one thing to consider is that negligence can be done by both private as well as the government hospital doctors but what is important is that as a patient you must check whether the hospital or the doctor you are approaching has a record of medical negligence.
  4. Cost of Healthcare – The cost of healthcare is also an important factor to consider whether the treatment or the medical facility you are opting for, is pocket-friendly or affordable for you. Chose the one that meets your requirement at the best possible price and fits in according to your own needs.
  5. What time and stay time – This is an important factor to consider while we wonder as to whom to chose and whom not to. This means that you must take a note of what time the doctor gives you as an appointment and what time you meet him, which means the difference between the appointment time and the appointment is to be considered.

Free Medical Care and Medical Negligence

We usually witness that medical negligence is something very prevalent in the society and when we discuss medical negligence we must also discuss that there are so many free health camps and medical care that is being provided. What is the rate of negligence in such circumstances? To dive into the matter, the court, however, has adopted a restricted approach towards the free medical health care that is being provided by the hospitals and other institutions of the country. It has distinguished between the circumstances in which the services are rendered free of charge to everybody irrespective of any discrimination. These services are aimed at eliminating the paucity of the medical services to the backward class and hence, accomplish their goals by providing the free medical health care to the people who cannot afford them. The people to whom the services are provided are known as the beneficiaries and they are also covered under-consumers of the Consumer Protection Act under section 2(1)(d).

The court has also held that the salary paid by the government to the doctors providing these services in such institutions cannot be regarded as the payment made on behalf of the person availing of the service. Nor can it be considered that such payments coming from the taxes are made for the benefit of the person using the service.

Conclusion

There are cases, therefore, which involves the negligence on the part of the doctor and also, where it may seem to be such that the negligence exists on the part of the doctor but it may not be the case, therefore you must be careful to determine whether the liability has arisen or not and if yes then which liability in negligence, civil or criminal which can be found on the link mentioned https://blog.ipleaders.in/negligence-criminal-civil/. Be careful and be healthy.

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