Discuss about the Medical Negligence and Law in India for Medical Malpractice.
In a medical field, it can be found that many medical negligence cases: it could be doctor’s mistake or patient negligence for treatment. However, in the end doctors have to suffer and end up in lose his degree or pay huge amount especially in India. Because in some cases even asking about the history of patients as an example: dentist asked about the diabetes to patient and patient has high diabetes and he knows that dentist would not extract his teeth because of diabetes. Therefore, he lied to doctor and go for treatment but dentist was not aware of his history and do not have any written record by patient. Dentist did his duty about asking of history but patient lied and later on sued dentist for negligence.
This is just one case where not even a doctor’s fault but need to suffer. Now a day, medical negligence case or medical malpractice is too much happening in India. I want to write my research assignment on MEDICAL NEGLIGENCE AND LAW for the same. I will discuss on what are the causes, reasons, elements and laws for the same.
The aim of this paper is to define and provide an overview of medical negligence, explain the different law and remedies that can be sought by the patients in the light of grievances and injury and illustrations of famous cases of medical negligence in India. In addition the paper will attempt in understanding of the degree of care and competence and the role of the doctors and the patients.
The term medical malpractice can be defined as an act of negligence committed by the medical provider, a medical practitioner or a healthcare professional in the pursuit of his duty. It has been referred as an omnibus term by scholars as it refers to wrongful actions or omissions committed by professionals in the field of medicine during the pursuit of their profession. Broadly it can be understood as performing something one would not commit in one’s ordinary skill or the failure of the medical practitioner to perform their medical skills in a proper manner[1]. Some of the illustrations of malpractices are keeping he rails of the hospital bed in the upright position or the performance of open-heart surgery without taking the necessary precautions. Medical malpractices are closely associated with informed consent. A physician or a health practitioner needs to inform the patient about the potential of risks, danger and the alternatives. In case the patient is aware of the situations and provide an informed consent then the physician may able to contest the case. However, in case the informed consent of the patient is not sought, then case will be registered against the health practitioner. According to Agarwal (2016), some of the consequences of medical malpractices in India are criminal liability, monetary liability and disciplinary action.
The features of medical negligence should not be understood through the study of the duty of the physicians, medical practitioners and other healthcare professionals. The physician has the discretion to decide whether to take a case, the kind of medication to be prescribed and to have the ultimate decision what should be done with the case[4]. It is the discretion of the doctor to decide whether she/he would want to proceed with the case or whether they do not want to undertake any procedure beyond their control. In all these, the medical practitioner is expected to demonstrate a degree of knowledge and skill in exercising a fair degree of care and concern. Negligence can be understood as breach of duty or care that results in grievous injury and damage of the patients. There needs to be a causal relationship between injury and the breach of trust for proceeding with the case of liability for negligence. For example, when a patient is has faced 50 per cent burns and died within a period of 40 days due to wrong blood type transfusion despite receiving the appropriate care it can be said that it was a case of medical negligence. This is because there is a causal relationship between the wrong transfusion of blood and death that was caused due that negligence. It has also been found that the line between civil liability and criminal liability often blurs. In the Dr. Suresh Gupta vs. Govt. Of NCT Delhi, the Supreme Court ruled stated that it was an incident of gross and reckless violence[5]. It was found that DR. Suresh Gupta that there was inadvertence and a certain degree of care that made it a case of civil liability, however it was not strong enough to call it a case of criminal liability. In this case, a young man lost his life during the procedure of nasal deformity. This happened because for implanting cuffed endotracheal tube of proper size to prevent the flow of blood from the wound to the respiratory passage. The accused was prosecuted under the Section 304A IPC by the High Court; however the Supreme Court kept it aside. Another case that needs to be discussed in the light of medical negligence is the three-judge bench hearing of the Jacob Mathew vs. State of Punjab case. In the context of the Jacob Matthew case, it was decided by the Supreme Court that the issue of medical negligence have emerged from negligence of the medical profession in adopting a differential treatment. The incident that took place was that an aged patient was suffering from terminal cancer and was at an advanced stage.. //he was experiencing difficulty in breathing and the oxygen cylinder that was attached to the mouth of the patient was found to be empty. Before there could be any replacement made, the patient died. During this case, the Supreme repealed the judgement of the High Court and concluded that doctors cannot be criminally prosecuted. As observed by Agarwal (2016), he would not be surprised to find that if different benches of the Supreme Court would come up with different verdicts during each hearing. These two cases provide a glimpse into the understanding of the medical negligence law in India. In the Dr. Suresh Gupta case and in the Mathew Jacob case, the law held different views on the subject of medical negligence. It needs to be kept in mind that criminal and civil liability are not mutually exclusive and can be applicable together in the context of medical negligence cases.
In cases that involve medical negligence, the aggrieved party has the initial onus of proving the allegiance related to medical negligence and after this, the onus shifts on the medical practitioner or the hospital administration to prove that there was no medical negligence[6]. For seeking civil liability, it is not necessary to hold the doctor and the nurses culpable for what had happened. For example, in case of an allegation that the doctor was negligent because of his failure to use particular equipment and instead have used wrong equipment, then the court would give the verdict by assessing the availability of the equipment at that time. There are times when it is time difficult to prove that the equipment was available at the time. In the context of cases pertaining to medical negligence, the opinion of the both the sides are assessed and then the verdict is presented. According to the Indian Evidence Act, 1872 when the court gives a verdict related to science, it has to seek the opinion of the person who is an expert in that area and is skilled to provide a deeper insight into the situation.
The doctor-patient relationships plays an important role in the fastening of the liability on the doctor. The medical practitioner has greater obligation than the patient as the former is understood to e the authority of knowledge and the latter is considered to be the who has limited knowledge about medicine and ailments. Therefore, the doctor and the patient share a fiduciary relationship. The doctor is expected to work in the best interest of the patient and cannot resort to actions that are against the will of the patient. Patients are increasing becoming aware about their rights in the Indian society[7]. According to Joga Rao (2009), there has been a trend of growing litigation related to the medical professional or the established liability. There is the patient-centred rights endeavours where there is the protection of the patients are guaranteed[8]. In regard to the adjudicating process in respect to the medical professional liability whether in case of a criminal court or the consumer forum, there are common principles of law that are related to consent, negligence and breach of confidentiality. Some of the important information in this light is as follows:
Another view is that the legal system needs to strike a balance between the rights of the patient and the autonomy of the doctor. It has been fund that Indian courts are usually empathic towards the doctors as they recognize the complexity of the human body. Courts try to protect the medical professionals; however, the courts do not resort to misplaced sympathies. The courts recognize that there can be contributory negligence on the part of the doctors that may contribute to the further worsening of the condition of the patient. To prevent the occurrences of medical negligence, the Supreme Court has made it mandatory that medicines should not be provided to anyone without a proper prescription[13]. A doctor should not be relying on the versions of the patients completely during medical examination of the symptoms but should engage in their own analysis that should include investigations and tests. In case of any doubt, an experienced doctor should be consulted.
Conclusions:
This paper discussed about medical negligence in the context of India by integrating the issues of law and health. Medical negligence is a complex and hence, contentious issue as it involves understanding the human anatomy long with the ethics of medical professionals. Both civil and criminal liabilities can be brought against the medical practitioner. Disciplinary action can also be brought against the medical practitioner. One such illustration would be suspension or cancellation of registration. However, proving the doctor or other healthcare professionals guilty, the burden lies with the patients. There are situations when the patient do not take proper responsibility and later sue the doctor of negligence. There have been discussions on some of the prominent cases concerning medical negligence in India to understand the nature of the law.
References and bibliography
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