This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatanam. In this article, she discusses the meaning of medical negligence, the elements that constitute medical negligence, consequences of medical negligence, duties of a medical practitioner, rights of a patient, laws that affect the medical profession, defenses available for the medical practitioner and exemptions for medical negligence.

Introduction

An estimated number of 2,25,000 people died due to medical malpractice or negligence which varies from incorrect dosages and wrong diagnosis to surgical errors. Statistics show that nearly 12,000 people die per annum because of unnecessary surgery.

A study conducted by HealthGrades in 2002 found that an average of one lakh ninety-five thousand hospital deaths in America was because of medical errors which were potentially preventable. From 1990 to 2003, 8151 medical malpractice payment reports were made filed against doctors in Illinois. In the same period of time, 2570 medical malpractice reports were filed against physicians in Indiana and 1,012 medical malpractice reports were filed against medical professionalists in New Mexico.

The Journal of American Medical Association reports that 1,06,000 patients die per annum because of the negative result of their treatment or medication. The Institute of Medicine estimates that errors in providing or suggesting medications are the most common errors and 1.5 million people every year are suffering injury from these mistakes.

What is Medical Negligence?

Medical negligence is the misconduct by medical practitioners or doctors by not providing enough care and taking proper safeguards or measures resulting in the breach of their duties harming the patients. In Moni v. State of Kerala [1], it is mentioned that in the case of the medical practitioner, negligence way failure to act through the standards of moderately ready clinical men on the time. There may be one or more perfectly proper or reasonable standards of care, and if he conforms to one of these standards, then he is not negligent.

For example, if an accountant makes a mistake there will be a loss of money but if a doctor makes a mistake there is a threat of losing a life. A doctor is always expected to be perfect as the patients see the doctors as gods and believe them in the process of healing and the mistakes of doctors cost a life.

Medical negligence occurs because of improper, unskilled or negligent treatment provided to the patients. Medical negligence also known as medical malpractice occurs when the medical practitioners fail to perform their duty with the necessary amount of standard of care. Negligence is an offense under the law of torts, Indian Penal Code, Indian Contracts Act, Consumer Protection Act 1986  and many more.

What are the essentials or ingredients that constitute the Act of Medical Negligence?

Negligence is the breach of legal duty. For example, a producer of cold drink has to ensure the quality of the product he produces, in case if he fails it amounts to negligence. A medical practitioner or a doctor who possess knowledge and skills for the purpose of giving advice and providing treatment owes certain duties to his/her patients which were mentioned in the case of  Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr.[2] by the Supreme Court. The breach of any of these duties gives a right to the patient to bring an action for negligence. These duties are:

  • The duty or obligation of care in finding out whether to undertake a unique case or not.
  • The duty of care in deciding what therapy or treatment that a patient is to receive in a certain case.
  • The duty of care in administering the treatment properly.

Medical negligence is caused by lack of proper care or carelessness of the medical professionals during diagnosis, operations or while injecting anesthesia. The most common causes for medical negligence include lack of procedural safeguards, incorrect dosages, surgical errors, operation theatre contamination, blood transfusion contamination, mistreatment, wrong diagnosis, etc., which can be potentially prevented by taking a proper standard of care which is required.

Every medical professional or doctor has a duty of care towards their patients and when they commit a breach of this duty of care it causes injury to the patients and gives the patient’s right to bring an action against negligence. In the case of  State of Haryana v. Smt Santra [3], the Supreme Court stated that each and every health practitioner has a responsibility to act with an affordable amount of care and skill.

What are the duties of a medical practitioner towards a patient?

The duties and responsibilities of a physician are prescribed in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002  made under Indian Medical Council Act, 1956.

  1. Obligation to sick – A physician or medical practitioner won’t consistently be certain to deal with each individual who asks for his service but he should continuously be competent to reply to the calls of the ill and will have to be mindful of the high character of his mission or obligation and the accountability he discharges in the direction of his professional responsibilities. A doctor or clinical practitioner advising a patient to seek provider of an extra health practitioner is acceptable however in the case of an emergency, a health practitioner ought to deal with the sufferer. No health care professional shall immediately refuse to offer to heal to a sufferer. However, the surgeon could refuse to deal with the sufferer if he/she is suffering from an ailment which isn’t inside the range of expertise of the treating health practitioner.
  2. Prognosis – The physician should never exaggerate or minimize the gravity of a patient’s condition or ailment. He will have to make certain himself that the sufferer, his family or his in charge buddies have such knowledge of the patient’s condition or sickness as it’s going to serve the nice pursuits of the patient and his/her loved ones.
  3. Patience, Delicacy, and Secrecy – A physician must have patience and delicacy. The confidentiality about the details of the patient and his ailments need to be maintained by the physician. However, in a few cases, the physician may reveal about these matters if he feels that his duty towards the society or any particular person is more important. For example, if there is a new form of hazardous and transmitting disease than the confidentiality of the disease cannot be kept.
  4. The Patient must not be neglected – A physician or a doctor is free to choose whom he will treat or serve but he should respond to any request or need for his assistance in case of an emergency. After undertaking a case, the health care professional must now not forget the sufferer and must no longer withdraw from the case without giving sufficient information to the sufferer and his/her family. Provisionally or fully registered medical practitioner or doctor should not willfully commit any act of negligence that may deprive his patient or patients of the required standard of medical care.
  5. Engagement for an Obstetric case –  When a physician who has been engaged to attend an obstetric case is absent or unavailable and another physician or doctor is sent for and delivery accomplished, the acting physician or doctor is entitled to get his professional fees, but should secure the patient’s acceptance or consent to resign on the arrival of the physician engaged.

Acts of Misconduct

  • Abuse of Professional position – They should not attempt to do misconduct by using the position in their profession. Committing adultery or improper conduct or maintaining an improper association with a patient constitutes professional misconduct.
  • Not taking the consent of Patient – Performing an operation without taking the consent or acceptance in writing from the spouse, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is required.
  • Violation of regulations and laws – The medical professionals must follow the rules and regulations regarding the duties and responsibilities laid down in the  Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

What are the rights of the patients?

The Ministry of Health and Family Welfare (MoHFW) has released a ‘Charter of Patients Rights’ prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights according to the Constitution of India.

    • Right to know the information – Physicians or their qualified assistants are required to provide ample information about your sickness, its analysis (provisional or demonstrated, as it usually is), proposed investigation and feasible complications to the patient. If the sufferer will not be in a state to recognize this, the health care provider or their assistant is required to furnish the information to the caretaker. This has to be accomplished in a simple language that the patient or caretaker will appreciate. Apart from this, sufferers have the right to grasp the identity and respectable repute of every medical professional and assistant as good as the major health practitioner who’s treating them. Expertise concerning bills of medication wants to be given in writing.
    • Right to see and check records and reports related to their ailment – Patients or their respective caretakers have the proper to entry the originals or copies of case papers, indoor sufferer documents, and investigation studies. Investigation experiences must be made to be had to them within 24 hours of admission or seventy-two hours of discharge. The hospital is accountable for providing a discharge abstract or a death abstract, in the case of a dying, to the caretakers or family members of the sufferer with customary copies of investigations.
    • Right to receive medical care during an emergency – In the case of an emergency, you can avail hospital treatment in any executive or confidential health facility. Underneath Article 21 of the structure, which ensures that every person has the proper right to life and private liberty, you have got proper right to prompt emergency care with the aid of medical professionals without compromise on the standards of care, safeguard and without needing to pay full or an advanced cost to the health center.
    • Right to give informed consent – If a hospital decides upon carrying an invasive investigation or surgery or chemotherapy on a patient, they require to do so after finishing a correct policy system. The general practitioner specifically in control of a patient has to provide an explanation for the risks, consequences, and process of the investigation or surgery in the element and an easy language before supplying the protocol consent type to the sufferer or to the responsible caretaker.
    • Right to have confidentiality, human dignity and privacy related to their ailment – Now this one is a particularly identified right, mainly for those who follow television suggests about hospitals or doctors. The code of ethics dictates medical professionals to hold knowledge concerning the ailment and medication plan for the patient in strict confidentiality from all people besides the patient and their caretakers. Unless it is the best case the place sharing this knowledge is within the interest of shielding others or because of public well-being issues. Within the case of a feminine patient, she has the proper to demand the presence of another girl if the clinical practitioner checking or treating her is male. Having stated this, the medical institution is accountable for upholding the respect of every patient, irrespective of their gender.
    • Right not to be discriminated on any basis regarding medical care – This point brings us to the rights of a patient being upheld without discrimination established on their ailment, situation, HIV reputation or on their gender, age, religion, caste, ethnicity, sexual orientation, linguistic or geographical or social origins. Headquartered on the above traits, no person may also be subjected to discriminatory treatment, and the employees of the clinic are liable for ensuring this.
    • Right to safety and quality care according to standards of required medical care – There is a list of provisions that come under the list of quality care standards. This includes Safety and security, Cleanliness, infection control measures, and sanitation facilities and safe drinking water, healthcare that abides by the latest standards, norms, and guidelines under the National Accreditation Board for Hospitals, to be attended to, treated and cared for in a professional manner and with the principles of medical ethics and the right to seek redressal by patient or caretakers.
    • Right to choose or select any alternative treatment to cure their ailment if options are available – Hospital employees and medical professionals are dependable for clarifying all cure choices to the sufferer/caretakers. After a radical gain knowledge of their alternatives, the patient/caretakers can prefer to select a cure that will or is probably not the surgeon’s main recommendation. This also signifies that once the patient/caretakers prefer this substitute healing, they’re going to shoulder the accountability of its consequences.
    • Right to have transparency in the cost of the treatment and care according to the prescribed cost whenever relevantAs acknowledged, the patient has the correct to have a written account of the costs they’ll have to endure for the remedy they’re receiving. As evidence for this, hospitals are required to have printed brochures and distinguished display boards bearing the names and rates of clinical tactics which can be to be had with them. Particular schedules of key charges need to be displayed in conspicuous places and must be in both, English as good as the neighborhood language. Patients have the correct to get drugs, instruments, and implants at rates determined with the aid of the countrywide Pharmaceutical Pricing Authority (NPPA) and other imperative authorities. Patients have the right to acquire health care offerings that fee inside the variety prescribed through the critical and State governments, on the time of receiving it.
    • Right to choose or select the source for buying medicines or doing testsAs a patient or a caretaker, you’ve gotten the correct to decide upon which registered pharmacy you want to purchase your scientific provides from. This also entails getting an investigation system (like a blood experiment, for illustration) from any diagnostic center or laboratory registered beneath the national Accreditation Board for Laboratories (NABL).
    • Right to choose or select proper referral and transfer, which is free from contradictory commercial influences If a patient must be transferred from one healthcare center to one other, a right and unique justification need to take delivery of to them/caretakers along with various options of the brand new healthcare center. They have got to additionally take delivery of a record of cures/drug treatments that have got to be endured after the transfer. This step is not able to be taken unless the patient or their caretaker be given it. Understand that, these selections are not able to be influenced by factors like “kickbacks, commissions, incentives, or other perverse trade practices.”
    • Right to protection for the patients who are involved in the clinical trialsConsistent with the Ministry of Health and Family Welfare (MoHFW), “All scientific trials need to be carried out in compliance with the protocols and good scientific apply recommendations issued through services, Govt. Of India as good as all applicable statutory provisions of Amended drugs and Cosmetics Act, 1940 and rules, 1945 principal medicinal drugs general manipulate service provider, Directorate basic of wellness.” These aspects incorporate consent through the sufferer, written prescription of medicinal drugs or intervention, privacy, and many others.
    • Right to protection of participants who are involved in biomedical and health researchIn case a patient is involved in a biomedical or health study system, their consent wishes to be taken in a written format. Their correct to dignity, privateness, and confidentiality wants to be upheld even for the period of the research. If the participant suffers direct bodily, psychological, social, legal or financial damage, they are eligible for financial or other help by using the medical institution. Anything advantages the hospital gets from the study need to be made to be had to valuable individuals, communities and the overall populace.
    • Right to be discharged or right to receive or take the body of a deceased person from the hospital“A patient has the right to be discharged and cannot be detained in a hospital, on procedural grounds such as a dispute in payment of hospital charges. Similarly, caretakers have the right to the dead body of a patient who had been treated in a hospital, and the dead body cannot be detailed on procedural grounds, including non-payment/dispute regarding payment of hospital charges against wishes of the caretakers,” says the Ministry of Health and Family Welfare  (MoHFW).
    • Right to get the education that a patient requires to know about his ailment or diseaseThere’s a list of things that a sufferer wants to be advised about by the medical institution. These have got to be addressed within the language that the sufferer/caretaker knows. This entails main details about their, healthy living practices, their rights and responsibilities, well-being coverage schemes significant to them, relevant entitlements (for charitable hospitals)and how to search redressal of grievances.
    • Right to be heard and seek redressal about his ailment or diseaseLast but not the least, every patient has the proper to address his grievances and give feedback about the healthcare and remedy they received on the hospital or from a specified doctor/assistant. The Ministry of Health and Family Welfare (MoHFW) extra provides, ” sufferers and caregivers have the correct to seek redressal in case they are aggrieved, by reason of infringement of any of the above-recounted rights on this charter. This may be achieved with the aid of lodging a criticism with a legitimate special for this cause by using the sanatorium/healthcare supplier and extra with a legitimate mechanism constituted by the federal government corresponding to sufferers’ rights Tribunal forum or scientific organizations regulatory authority because the case could also be.


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What are the consequences of Medical Negligence?

Civil or monetary liability

Liability under the Consumer Protection Act

All the medical services fall under the purview of the Consumer Protection Act 1986. The interests of the consumers are been protected against the deficiency of services. Section 2 (1) of the Consumer Protection Act defines the ‘deficiency of service’ means any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise about any service. For example, in the case of Indrani Bhattacharjee v. Chief Medical Officer and Ors.[4] the ECG of the patient was not normal and the doctor failed to advise the patient to consult a cardiologist and also to reduce smoking and drinking, and instead gave him medicines for gastric trouble which amounted to deficiency in service.

In Kusum Sharma v. Batra Hospital and Medical Research Center and Ors.[5], the court has observed that when the medical practitioner fails to maintain the standards of reasonable care or competence then he/she will be held liable for medical negligence, which gives rise to the deficiency in medical service in terms of Section 2 (1) (g) of Consumer Protection Act.

In the case of Kidney Stone Center v. Khem Singh Alias Khem Chand [6], the patient was suffering from stone in the urethra. The defendant’s company promised to remove it without surgery on payment of ten thousand rupees but failed to do so. The District Consumer Forum ordered to refund the amount along with the interest.

Doctors are not held liable either individually or vicariously if they do the treatment or service without charging their patients. Therefore, free treatment at government or non-government hospital, health care center, dispensary or a nursing home cannot be considered as service as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986. Hence, the contract of service is beyond the sphere or ambit of the Consumer Protection Act. The Act cannot rescue the patients in case if they took free service or paid only a nominal fee for registration. However, if the charges of the patients’ are waived due to their incapacity to pay then they are considered as consumers and can sue under the Consumer Protection Act.

The medical practitioners or doctors will be held liable for their services unless they come within the exceptions mentioned in the case of the Indian Medical Association v. P Santha[7] and the court held that even though the services provided by the doctor or a medical practitioner are of personal nature the patients can’t be treated as contracts of personal service. They are contracts for service under which a doctor can be sued in the Consumer Protection Courts.

The complaints under the Consumer Protection Act can be filed at  

1) The District Forum if the value of services and compensation claimed is less than 20 lakh rupees,

2) Before the State Commission, if the value of the goods or services and the compensation claimed is below 1 crore rupees, or

3) In the National Commission, if the value of the goods or services and the compensation exceeds more than 1 crore rupees.

There is a minimal fee for filing a complaint before the District Consumer Redressal Forums.

Liability under the Law of Torts

The tort law begins where the Consumer Protection Act ends to protect the interests of the patients. People usually file a complaint under tort or civil law in order to get compensation. For instance, if there is a breach of duty of care when the patient is under the supervision of the hospital then the hospital will be held vicariously liable to pay for the damages in the form of compensation.

In the case of Dr. Balram Prasad v.Dr Kunal Shah and Ors.[8] the Supreme Court has awarded the highest amount of compensation i.e., an amount of six crores plus interest which makes a total amount of twelve crores as compensation as the case was pending for the past fifteen years for medical negligence which led to the death of petitioner’s wife.

Sometimes, a senior doctor can be held responsible for the acts done by the junior doctor. If the employee of the hospital acted negligently and incompetent while dealing with the patient then the hospital will be held responsible for the act. In Mr. M Ramesh Reddy v. State of Andhra Pradesh[9],  the hospital authorities were found to be negligent as they did not keep the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom and lead to her death. The court awarded a compensation of one lakh was awarded against the hospital.

In the case of  Lakshmi Rajan v. Malar Hospital Ltd [10], the patient was a forty-year-old married woman who noticed the development of a painful lump in her breast and went to the  Malar Hospital Ltd for examination, diagnosis, and treatment. Her uterus was removed though the lump had no effect on it. This ended her hope for a child. The hospital was held liable to pay compensation of two lakh rupees to the complainant.

A doctor has an obligation of providing proper treatment with the required amount of care in order to cure the patient. Failure of a doctor or a medical practitioner to discharge of this obligation essentially results in tortious or civil liability. In Hunter v. Hanley [11] the court has stated that ‘a doctor can be held liable for negligence only if it is proved that she/he is guilty of a failure to take reasonable amount of care that no doctor with ordinary skills would be guilty of if acted by taking a reasonable amount of care’.

Certain conditions have to be considered before held liable. The person must have committed an act or an omission which has been a breach of his legal duty and caused harm or injury to the patient. The complainant must prove the allegation against by submitting the best evidence available in the medical science and by presenting a professional or expert opinion and this principle was used in the case of Dr. Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole[12].

The principle of Res Ipsa Loquitur

It’s well authorized that in the circumstances of gross medical negligence the principle of res ipso loquitur is to be utilized. The law of res ipso loquitur is declared to be essentially an evidential policy and the stated principle is designed to assist the petitioner or the claimant. Res Ipso loquitur deals with the matters which speaks for itself; even as finding out the liability of the physician it has to be well established that the negligence mentioned must be a breach in due care which a traditional practitioner would have been ready to keep.

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if the act of the person clearly shows that it is the reason the injury caused to the patient although, there is no distinctive evidence of an act of negligence, and without negligence, the accident should not have happened. A general practitioner will not be an insurer for the sufferer, lack of ability to medication, the patient would not amount to negligence, however, carelessness ensuing in the hostile situation of the patient would.

In some situations, the claimant can invoke the principle of res ipsa loquitur which means the thing speaks for itself. Sometimes, no proof of negligence is required or needed beyond the accident itself. This principle was applied in the case of Dr. Janak Kantimathi Nathan vs Murlidhar Eknath Masane[13].

In Gian Chand v. Vinod Kumar Sharma[14], the hospital authorities shifted the patient from one ward to another instead of changing the treatment that has been given to the patient. This resulted in damage to the patient’s health and the hospital authorities were held liable for negligence.

In Jagadish Ram v. State of Himachal Pradesh[15], the court has held that before performing any surgical procedure, the chart revealing understanding concerning the quantity of anesthesia advert allergies of the patient should be mentioned in order that an anesthetist can provide a plentiful amount of drug treatments to the sufferer. The health care professional in the above case failed to do so, therefore, because of the overdose of anesthesia the patient died and the doctor was once held liable for the identical.

Criminal liability

In the case of  State of Haryana v. Smt Santra [16], the Supreme Court has stated that the liability in civil law is based on the damages incurred and in criminal law, the degree of negligence is a factor in determining the liability. However, the elements like the motive or the intention behind the offense, the magnitude or degree of the offense and the character of the offender must be established to determine the criminal liability.  

In Jacob Mathew v. State of Punjab & Anr.[17], the court has stated that ‘a very high degree of negligence is required to be proved for imposing criminal liability.’ The Criminal liability for medical negligence may be imposed if

  • The doctor was not possessed of the requisite skill which he claimed to possess or
  • He possessed the skill but did not exercise, with reasonable care and competence in the given case.

In Poonam Verma v. Ashwin Patel [18], the Supreme court has distinguished between negligence, recklessness, and rashness, and also defined what amounts to criminal liability. It stated that a person is said to be acted in a negligent manner when he/she unintentionally commits an act or omission that causes a breach of his/her legal duty. A person who acted in a rash manner when he/she knows the consequences but foolishly thinks that they won’t occur as a result of his/her act.  A reckless person knows the consequences but doesn’t care whether or not they result from his/her act. The Court has stated that ‘any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability. ’

A doctor can be held liable under criminal law if it is shown that he/she was negligent or incompetent in performing their duty, with such disregard for a patient’s right to life and right to safety of his patient’s that it amounts to a crime against the State. This principle was used in the case of  R vs Adomako [19].

Sections that are often applied to deal with the cases of medical negligence under criminal liability are –

  • Section 304-A of Indian Penal Code –  A person who commits a rash or negligent act which amounts to culpable homicide will be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
  • Section 337 of Indian Penal Code  A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
  • Section 338 of Indian Penal CodeA person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

Disciplinary action

The punishments and disciplinary action for medical negligence and misconduct are mentioned in chapter 8 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 made under the Indian Medical Council Act, 1956.

If a medical practitioner is found guilty of committing misconduct by the appropriate Medical Council then he will be awarded the certain punishments which include

  • Removing the name of the medical practitioner from the register of medical practitioners forever or for a specific period of time.
  • During the pendency of the complaint, the council may restrain the medical practitioner from performing the procedure or practice under scrutiny.
  • The removal is widely publicized through local press and publications of different Medical Associations or bodies.

What are the defenses available for a doctor under the Indian Penal Code?

  • Section 80 of Indian Penal CodeAnything which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense.
  • Section 81 of Indian Penal CodeAnything which is done merely by reason of it is being done with the knowledge that it is likely to cause the harm, if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property is not an offense.
  • Section 88 of Indian Penal CodeNo person can be accused of an offense if he/she performs an act in good faith for the benefit of the other person, does not intend to cause harm even if there is a risk and the patient has explicitly or implicitly given consent.

What are the laws that affect the medical profession?

There are few laws or provisions which affect the medical profession and it’s working. These are the laws which prevent medical negligence or malpractice and protects the interests of the patients. They are

  • Article 21 of the Indian ConstitutionIt states that no person shall be deprived of the right to life and personal liberty except according to the procedure established by law.
  • Article 32 of the Indian ConstitutionIt speaks about the Right to Constitutional Remedies. The apex court is given authority to issue directions, orders or writs and is considered as the protector and guarantor of Fundamental Rights.
  • Article 41 of the Directive Principles of State PolicyThe State can, within its jurisdiction, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
  • Article 42 of the Directive Principles of State PolicyThe State can make provisions for securing just and humane conditions of work and for maternity relief.
  • Article 47 of the Directive Principles of State Policy The State can regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State can endeavor to bring about prohibition of the consumption of intoxicating drinks and of drugs which are injurious to health  except for medicinal purposes.
  • Section 52 of Indian Penal CodeAnything which is done without due care and attention cannot be considered as an act done in good faith.
  • Section 80 of Indian Penal CodeAnything which is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution is not an offense.
  • Section 81 of Indian Penal CodeAnything which is done merely by reason of it is being done with the knowledge that it is likely to cause the harm, if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property is not an offense.
  • Section 88 of Indian Penal CodeNo person can be accused of an offense if he/she performs an act in good faith for the benefit of the other person, does not intend to cause harm even if there is a risk and the patient has explicitly or implicitly given consent.
  • Section 90 of Indian Penal Code If the consent is given by an individual underneath worry of damage, or beneath a false impression of fact, and if the individual doing the act knows, or has intent to think, that the consent used to be given consequently of such fear or misconception; or Consent of insane character, if the consent is given by way of a man or woman who, from unsoundness of intellect, or intoxication, is unable to appreciate the character and outcome of that to which he gives his consent; or Consent of little one, unless the contrary seems from the context, if the consent is given by means of a character who’s under twelve years of age.
  • Section 92 of Indian Penal Code – Nothing is an offence by using cause of any harm which it will intent to a person for whose improvement it’s finished in just right faith, even without that character’s consent, if the instances are such that it’s not possible for that individual to suggest consent, or if that character is incapable of giving consent, and has no guardian or a different man or woman in lawful charge of him from whom it’s possible to receive consent in time for the object to be done with advantage. First of all, this exception shall not prolong to the intentional causing of loss of life, or the making an attempt to motive dying. Secondly, that this exception shall now not extend to the doing of something which the man or woman doing it knows to be more likely to reason death, for any motive rather than the stopping of death or grievous damage, or the curing of any grievous sickness or infirmi­ty. Thirdly, that this exception shall no longer extend to the voluntary inflicting of hurt, or to the making an attempt to cause harm, for any reason as opposed to the stopping of dying or hurt. Fourthly, that this exception shall no longer lengthen to the abetment of any offense, to the committing of which offense it would now not extend.
  • Section 304-A of Indian Penal CodeA person who commits a rash or negligent act which amounts to culpable homicide will be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
  • Section 337 of Indian Penal Code A person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
  • Section 338 of Indian Penal CodeA person who commits a rash or negligent act which threatens human life or personal safety of others will be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

What are the exemptions for Medical Negligence?

Doctors are not held liable either individually or vicariously if they do the treatment or service without charging their patients. Therefore, free treatment at government or non-government hospital, health care center, dispensary or a nursing home cannot be considered as service as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986. Doctors will be held liable for their services unless they come within the exceptions mentioned in the case of the Indian Medical Association v. P Santha[20].

The doctors cannot give a warranty to act in a perfect manner or a guarantee of cure to the patient. If the doctor has adopted the right course of treatment for the patient, is skilled and has worked with a proper method and manner that suits the patient at best then she/ he cannot be blamed for negligence even if the patient is not totally cured as stated in the case of Savitri Devi v. Union of India [21].  

Conclusion

Medical negligence is the misconduct by medical practitioners or doctors by not providing enough care and taking proper safeguards or measures resulting in the breach of their duties harming the patients. It occurs because of improper, unskilled or negligent treatment provided to the patients. Every medical professional or doctor has a duty of care towards their patients and when they commit a breach of this duty of care it causes injury to the patients and gives the patient’s right to bring an action against negligence. The act of medical negligence results in civil liability, criminal liability and disciplinary action.  

References

[1] SA. No. 832 of 2000(G).

[2] 1969 AIR 128, 1969 SCR (1) 206.

[3] 2000 5 SCC 182:: AIR 2000 SC 3335.

[4] II CPJ 342 UP S.C.D.R.C., 1998.

[5] AIR 2010 SC 1050.

[6] CPJ 436 Chandigarh S.C.D.R.C., 2000.

[7] 1996 AIR 550, 1995 SCC (6) 651.

[8] (2014) 1 SCC 384.

[9]  1975 36 STC 439 AP.

[10] C P J 586 Tamil Nadu S.C.D.R.C., 1998.

[11] 1955 SLT 213.

[12]  AIR 1969 (SC)128.

[13] 2002 (2) CPR 138.

[14] A.I.R. 2008 H.P. 97.

[15]  A.I.R. 2007 (NOC) 2498 (H.P).

[16] 2000 5 SCC 182:: AIR 2000 SC 3335.

[17] 2005 6 SCC 1.

[18] 1996 AIR 2111, 1996 SCC (4) 332.

[19] 1994 3 All ER 79.

[20] 1996 AIR 550, 1995 SCC (6) 651.

[21] IV 2003 CPJ 164.

 

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