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Medical Negligence: The New Bug Proliferating India’s Litigation

Heer Shah 4 Oct 2017

Medical Negligence: The New Bug Proliferating India’s Litigation

Medical Negligence: The New Bug Proliferating India’s Litigation

 

Introduction: Essence of Negligence

The medical world is ever evolving and the corresponding progress in technology has undoubtedly saved millions of lives, however with the enactment of the Consumer Protection Act, 1986 the patients have realized their rights and have claimed compensation for the inattentive or careless treatment provided to them. Also, the medical practitioners have come to terms with the fact that they owe a ‘duty of care’ towards the patient and therefore, such a ‘breach of duty’ would amount to medical negligence.

The Black Law Dictionary defines negligence as:

“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.”

 

Medical Negligence is simply a failure to exercise due care and protection. The three key ingredients of negligence are as follows:

·       The defendant owes a duty of care to the plaintiff.

·       The defendant has breached this duty of care.

·       The plaintiff has suffered an injury due to his breach.

 

Cases at Glance: The Ever Changing Interpretations

It is a given fact that a doctor owes a duty of care to his patient which can either be contractual duty or one arising out of tort law. In order to define the boundaries and the relationship between doctor-patient, the Supreme Court in Parmanand Kataria v. Union of India, reinstated that “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life.” The liability of a doctor arises when the injury has arisen due to the negligent conduct of the doctor and not when the patient has suffered from an injury due to other reasons. The plaintiff certainly needs to prove the breach of duty and the outcome beyond doubt.

In Jacob Mathew v. State of Punjab, the Supreme Court framed a few guidelines under which a Doctor could be held criminally liable for his professional negligence or a mere deficiency of service. The judgment was a subsequent result to the appeal filed by a doctor who had been booked for the death of a terminally ill cancer patient. The failure was on part of the hospital which could not provide for the oxygen on time to the deceased, Jiwan Lal as there was no gas in the cylinder.

The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by expert evidence.[1] In case of the State of Haryana v. Smt Santra, the Supreme Court held that every doctor “has a duty to act with a reasonable degree of care and skill.[2]

The concept of vicarious liability and its relation to the medical profession is vital as the hospital will always be liable in each case whether the negligent act is committed by the doctor, surgeon, anesthetic, nurses, etc. whether they are permanent or temporary or visiting or full time, they are equally liable as they are the agents of the hospital to provide treatment to the patients. This was the judgment in the case of Cassidy v. Ministry of Health given in.[3]

In V Kishan Rao v. Nikhil Super Specialty Hospital[4], it was held that in a case where negligence is evident, the principle of ‘res ipsa loquitur’ operates and the complainant does not have to prove anything as the thing (res) proves itself. It is the respondent who has to prove that he has taken care and done his duty to repel the charge of negligence. One of the first instances where the principle was applied in medical negligence cases was in the case of Spring Meadows Hospital and Anr v. Harjol Ahluwalia wherein it was stated that use of wrong drug, wrong gas and delegation of responsibility to another may amount to negligence in certain circumstances and the application of ‘res ipsa loquitur’.


Reasons and Solutions: What Lies Ahead

One of the reasons attributing the upsurge in the amount of cases relating to medical negligence is due to the increased awareness among the people and access to consumer courts, however it may be remarkable to note that a Supreme Court Advocate, Mahendra Kumar Bajpai, who specializes in medical law, conducted a study[5] on the statistics of medical negligence cases and it was shockingly revealed that there was a 110 percent rise in litigation pertaining to it every year in India. The study also shows that between 60-66 percent of the filed cases are due to the hospitals taking improper consent from relatives before performing certain procedures and treatment of the patients which clearly depicts the ground reality persisting in the courts.

In India, the previous Medical Council Act of 1956 had no provisions to deal with medical negligence, even after the modification in 2002 to include medical negligence, the section under which action can be taken or penalties be imposed against the alleged malpractice is not per se specified. This is one of the reasons why there is an urgency to formulate a comprehensive law which deals with the medical negligence cases.

It is also crucial for every MBBS student to be aware of Medical Council of India (MCI) Regulations, 2002, which directly talks about the legal intricacies and therefore needs to be included in the syllabus. The moneymaking mentality of a few in the medical field also have to be done away with as one has to realize and understand that they are dealing with the precious lives of the patients which are at stake. There is no doubt about the fact that the medical science is progressing and reaching new horizons however, the medical profession may slowly lose its aura of sanctity if the staggering rise in such cases are not looked into.



[1] Smt. Vimlesh Dixit v. Dr. R.K. Singhal. 2004;(I) CPJ 123 (Uttaranchal) [Ref list]

[2] State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335

[3] Dr. Jagdish Singh & Vishwa Bhushan, Medical Negligence and Compensation 115, (2d.ed 1999)

[4] 2010(5)ALD46(SC)

[5] http://timesofindia.indiatimes.com/city/nagpur/Alarming-rise-in-medical-negligence-litigation-Study/articleshow/55484635.cms

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User Comments
Anuj
Very good interesting article . Good work done ,. Thanks for sharing
Anuj Malhotra 4 Oct 2017
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