Medical Negligence in India

MEDICAL NEGLIGENCE NEGLIGENCE IN INDIA 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 authority is expected to be more in comparison comparison with other cases cases of negligence. negligence. So proper care must be taen by the authorities and the doctors to avoid medical negligence. The !lac 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 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. $s a general rule# the viola violati tion on of a publ public ic duty duty# en%oi en%oine ned d by law law for for the the prot protec ecti tion on of pers person on or prop proper erty ty## so constitutes&. The basic elements of 'egligence are (a) Duty of *are (b) !reach of Duty (c)*ause in fact (d)Proximat (d)Proximatee *ause and (e) Damage. These These are the basic elements of negligence# negligence# to prove the case of negligence all these criteria must be satisfied and in cases of medical negligence in India# the ambit ambit of duty of care and proxim proximate ate cause increas increases# es# as there there are life life involv involvee in this situation. +hen there is civil wrong (right in rem) against a con tractual obligation (right in persona)# with a  breach of duty which invites the intervention of %udges 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 *ourt in the case of Dr of Dr.. Laxman  Balakrishna Joshi vs. Dr. Dr. Trimbark Trimbark Babu Godbole and A.S Mittal .v. State of U.P . In these cases# different ind of negligence were introduced which were further ,uestion of ,ualification 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 sec -() of *onsumer protection $ct /01.

What Is Medical Negligence?

 'egligence is simply failure to exercise due care. The three ingredients of negligence are as follows2 .

The defendant owes a duty of care to the plaintiff 

-.

The defendant has breached this duty of care.

3.

The plaintiff has suffered an in%ury due to his breach.

$nd in case of medical negligence mostly the doctor is the defendant. 'egligence is  predominantly a theory of liability concerning allegations of medical malpractice# maing this type of litigation part of the Tort 4aw. Civil Liability and Medical Negligence

 'egligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. $ breach of this duty gives a patient the right to initiate action against negligence. Persons who offer medical advice and treatment implicitly state and undertae to have the sill and nowledge to do as under2 •

To undertae particular %ob.

•

To decide whether to tae a case or not #

•

To decide the treatment suitable for particular case

•

To administer that treatment.

This is nown as an "implied undertaing& on the part of a medical professional. 5owever# no human being is perfect and even the most renowned specialist could mae a mistake in detetin! or dia!nosin! the true nature of a disease. $ doctor can be held liable for negligence only if one can prove that she/ he is gilty of a failre that no doctor with ordinary sills would be guilty of if acting with reasonable care. $n

error of %udgment constitutes negligence only if a reasonably competent professional with the standard sills that the defendant professes to have# and acting with ordinary care# would not  have made the same error.

Doctors must exercise an ordinary degree of sill. 5owever# they cannot give a warranty of the  perfection of their sill or a guarantee of cure. If the doctor has adopted the right course of  treatment# if she6 he is silled and has wored with a method and manner best suited to the  patient# she6 he cannot be blamed for negligence if the patient is not totally cured. *ertain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission7 this act must have been in  breach of the person8s duty7 and this must have caused harm to the in%ured person. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion. Cri!inal Liability and Negligence

Indian Penal *ode 019 sections :-# 09# 0# 03# 00# /9# /# /- 39;<$# 33= and 330 contain the la" of !edical !alpractice in India . $ physician can be charged with criminal negligence when a patient dies from the effects of  anesthesia during# an operation or other ind of treatment# if it can be proved that the death was the result of malicious intention# or gross negligence. !efore the administration of anesthesia or   performance of an operation# the medical man is expected to follow the accepted precautions. In such cases# the physician should be able to prove that he used reasonable and ordinary care in the treatment of his patient to the best of his %udgment. 5e is# however# not liable for an error   %udgment. The law expects a duly ,ualified physician to use that degree of sill and care which an average man of his ,ualifications ought to have# and does not expect him to bring the highest  possible degree of sill in the treatment of his patients# or to be able to guarantee cures. "Gross 4ac of competency or gross inattention# or wanton indifference to the patient8s safety# which may arise from gross ignorance of the science of medicine and surgery or through gross negligence# either in the application and selection of remedies# lac of proper sill in the use of  instruments and failure to give proper attention to the patient.& (5ampton v State7 State v 4ester) When Does #he Liability Arise In Case $f Medical Negligence?

The liability of a doctor arises not when the patient suffers in%ury but when the in%ury results due to the conduct of the doctor# which was below reasonable care. 5ence once there exist a duty which has to be established by the patient# then the next step is to prove breach of such duty and the causation.  'ormally the liability arises only when the plaintiff is able to discharge the burden on him of   proving negligence. 5owever# in some cases the principle of "res i"sa lo#uitor$ which means the thing speas for it might come into action. Mostly the doctor is liable only for his own acts. 5owever in some cases a doctor can also be made vicariously liable for the acts of another. The example of such a situation is when a %unior doctor assisting the senior doctor commits a mistae it becomes the duty of the senior to have supervised him hence vicariously liable.

%roof of Medical Negligence

It has been held in different %udgments by the 'ational *ommission and the 5on8ble Supreme *ourt that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. The burden of proof correspondingly IS greater on the person who alleges negligence against a doctor. It is nown fact that things can go wrong even with the best doctor. $nd the guilt or the negligence should be established beyond all reasonable doubts that his sill fell below reasonable care that he ought to tae during the treatment6 surgery.

Land!ar& 'dg!ent on Medical Negligence

+hen we thin about landmar %udgment in medical negligence cases the first %udgment that comes into our mind is one of the high profile and most taled case with the highest amount of  compensation granted till date.  %unal Saha &s AM'( ($dvanced Medical >esearch institute ) famously nown as $nuradha Saha *ase# this case was filed in //0 with the allegation of  medical negligence on ?olata based $M>I 5ospital and three doctors namely Dr. Suumar 

Muher%ee# Dr. !aidyanath 5alder and Dr. !alram 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 -;th @ctober -93 and a compensation of around 1.90 crore for the death of his wife.

In the case of &.%rishan 'ao &s )ikhil Su"er S"eialit* +os"ital ,--# ?rishna >ao# an officer  in malaria department filed a complaint against the hospital for negligent conduct in treating his wife. 5is wife was wrongly treated for typhoid fever instead of malaria fever# due to the wrong medication provided by the hospital. Ainally# the verdict was given and >ao was awarded a compensation of >s - lahs. In this case# the principle of res i"sa lo#uitor   (thing spea for  itself) was applied and the compensation was given to the plaintiff.

Defense of Medical %rofession

In defense of medical profession Supreme court in  %usum Sharma / 0rs vs. Batra +os"ital  and Medial 'esearh ase held that the law of negligence has to be applied according to facts and circumstances of individual case. 'o 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 ris which cannot be denied because of complication in the operation if some ris is done# the doctors cannot be held liable for negligence as the patient himself has consented to the ris involved in the operation.

In another case of Jaob Mathe1 .&. State of Pun2ab3 the Supreme court held that in some cases of medical profession the doctors are e,uipped in certain situation where they have to mae choices between a devil and the deep sea. Sometimes in certain situation there must be greater  ris in the operation but higher chances of success and in another move there would be lesser  ris but higher chances of failure. So the decision# that which course would be follow will depend on facts and circumstances of case.

Conclsion

@n the scrutiny of leading medical negligence cases of India# certain principles should be taen into consideration while pronouncing the %udgment in medical negligence cases.

. 'egligence 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 re,uires certain degree of sill and nowledge# so the standard of  care in cases of medical professional is generally high and should also be taen into account while giving the %udgment. 3. $ medical professional can be only held liable# when the standard of care is reasonably is less than the reasonable care that should be taen from a competent  practitioner in that field. ;. +hen a choice has to be made between certain circumstance when there is higher ris  involved and greater success is involved and lesser ris with higher chances of failure# the facts and circumstances of the individual case should be taen into the consideration. :. 'o negligence will apply on medical professional# when he performs his duty with the utmost care that should be taen# and he had taen all the precaution. 1. 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 re,uired# they should be given some liberty in certain peculiar situation where they need to mae their %udgment without any apprehension freely. So that it can be beneficial for the society.