Medical Negligence - Indian Legal Perspective
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MEDICAL NEGLIGENCE: INDIAN LEGAL PERSPECTIVE
Ragini Kandhari, Fairfield Institute of Management and Technology
ABSTRACT
A patient approaching a doctor expects medical treatment with all the
knowledge and skill that the doctor possesses to bring relief to his medical problem. A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor. After all there is a fiduciary relationship between both of them. Medical Negligence cases are quite common in developed countries leading to an increase in malpractice insurance. This paper describes and it throws light on the current circumstances regarding medical negligence prevalent in India and their available laws. Keywords: Medical Negligence, Medical Treatment, Fiduciary Relationship
1. INTRODUCTION
Medical Negligence is an offence under Tort, IPC, Indian Contract Act, Consumer Protection Act and many more. In recent years Medical Negligence has become one of the major problems in the country. Even the Medical Profession, Despite being regarded as one of the noblest professions is not exempt or we can is not immune to negligence, which frequently ends in patient death, whole or partial disability or other suffering that negatively impacts the patient’s health. There are situations or instance in which medical professionals with adequate education cause legal procedures of their extreme negligence or wilful behaviour. It’s no surprise that even the slightest mistake made by a doctor can change the whole life of their patients. So, therefore it is the duty of a doctor to take proper care or necessary precautions to prevent or avoid such events.
The basic or primary reason behind medical negligence is that negligence of doctors or medical practitioners is often detected in various cases where proper care is not taken during diagnosis, during operation, while injecting anesthesia etc. Medical malpractice suits are quite common in developed countries leading to an increase in malpractice insurance. 1
2. MEANING AND DEFINITION OF MEDICAL NEGLIGENCE
Medical Negligence is a combination of two words. The first word ‘Medical’ describes the meaning relating to the science or practice of medicine, related to the treatment of illnesses and injuries or an examination to assess a person’s state of physical health or fitness. Whereas the second word ‘Negligence’ describes as misconduct although the definition of negligence has not been properly explained, the second word simply states that it is an act of recklessness committed by one person that causes predictable harm to another. We can define the term “Medical Negligence” as the improper or unskilled treatment of a patient by a medical practitioner or professional this includes negligence in the case of a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical Negligence are the result of medical practices.
Negligence refers to a breach of duty which a reasonable person would do or a wrongful act which a reasonable person wouldn’t otherwise do2. Medical Negligence is negligence in the field of medicine, where a medical professional is negligent
1 Justice K Kannan, Medical Jurisprudence and Toxicology, Modi, Lexis Nexis, 26th Edition.
2 Chandi Prasad Khamari, A Study on Medical Negligence in India: Retrospective and Prospective, International Journal of Legal Science and Innovation, ResearchGate, Volume 3, Issue 3, Published on March,2022,
DOI:10.10000/IJLSI.11698
during the management of his or her patients. However, no law in India defines Medical Negligence. “When a medical professional or service provider engages in any inhumane treatment creates an environment of terrorizing medical knowledge or license, it is not just negligence, it is additionally an act of medical terrorism”. Medical Negligence is considered a noble profession as it helps in preserving life3. We believe that life is god given. Thus, a doctor is included in the plan of god because he stands to carry out his command. A patient generally goes to a doctor or hospital based on his/her reputation. A patient’s expectation are of two types: Doctors and hospitals are expected to provide medical treatment with all the knowledge and skills as directed by them.
Secondly, they will not do anything that causes harm to the patient in any way due to their negligence carelessness or careless attitude of their staff. Although a doctor may not be in a position to save his patient’s life at all times, he is expected to use his specialized knowledge and skills in the most appropriate manner, keep in mind the welfare of the patient who has entrusted his life to him. Furthermore, unless there is an emergency, he obtains the informed consent of the patient before proceeding with any major treatment, surgical operation or even invasive investigation. Failure by a doctor and hospital to discharge this duty is essentially a tortious liability. A tort is a civil wrong (right in rem) as against a contractual obligation (right in personam) a breach that attracts judicial intervention by way of awarding damages.
Thus, the patient’s right to receive medical aid/attention from doctors and hospitals is essentially a civil right the relationship takes the shape of a contract to some extent due to informed consent payment of fees and performance of surgery/providing treatment etc while the essential elements of the tort are retained.
3. CASE LAWS & LANDMARK JUDGEMENTS ON MEDICAL NEGLIGENCE
There are some land mark judgements and cases on medical negligence which are listed below: • Spring Meadows Hospital v. Harjol Ahluwalia4 In this case the child Harjol Ahluwalia was being treated at Spring Medows hospital. The child was diagnosed with typhoid by senior consultant pediatrician Dr. Promila Bhutani. During the course of his treatment nurse Bina Mathew gave
3 Saad Dahlawi, Ritesh G Menezes, Mohammad Ajmal Khan, Abu Warsi, Saifullah, Mirza Muhammad Naseer,
Medical Negligence in healthcare Organisations and its impact on patient safety and public health: a bibliometric study, National Library of Medicine, PubMed Central (version1), March ,2021
DOI:
10.12688/f10000research.37448.1
4 AIR 1998 SC 1801: (1998) 3 CPR 1 (SC): (1998) 1 CPJ: (1998) 2 JT 620.
harjol a Lariago injection. At that moment, the child fell. After being revived, the child was placed on a manual respirator. He was eventually sent to AIIMS in New Delhi, where the medical staff informed Harjol’s parents that he was very critical and that, even if he lived, he would only be in a vegetative state because his brain had suffered irreversible damage and there was no chance that his damaged organs would ever recover. A gross medical error will always be deemed negligent. In many cases, liability will be imposed if the incorrect gas or medicine I used during the anesthesia. In some situations, even assigning responsibility to someone else can be considered negligent. A consultant may be negligent if he assigns duty to a junior employee knowing that the junior is unable to carry out his responsibilities effectively. • Samira Kohli v. Dr. Prabha Manchanda & ORS5.
A gynaecologist performed a laproscopic examination on a lady who had
experienced on a lady who had experienced nine days of heavy menstrual flow. After discovering that she had endometriosis, the doctor resorted to radical surgery of removal of the uterus instead of a conservative treatment. The doctor survived a challenge to his action on the ground of negligence, but he was found to have professionally erred in doing an act without prior consent and hence held to be guilty of deficiency of service liable and asked to forego charges for surgery and imposed costs of Rs. 5000. • State of Haryana v. Raj Rani 6 Failure of sterilisation performed by a doctor and vicarious liability of the state was discussed. It was held that the state’s vicarious liability cannot be used in this instance because the doctor’s negligence cannot be demonstrated.
5 (2008) 2 SCC 1: AIR 2008 SC 1385: 2008 (1) SCR 719.
6 III (2005) ACC 811: 2005 ACJ 2116: AIR 2005 SC 3279: 2005 (6) Bom CR 927: IV (2005) CPJ 28 (SC): 2005 (4) JCR 227 (SC): JT 2005 (8) SC 56: (2005) 4 MLJ 131 (SC): 2005 141 PLR 795: RLW 2005 (4) SC2511:
(2005) 7 SCC 22: 2005 (2) UJ 1420 (SC) Cases.
Poonam Verma v. Ashwin Patel and Others7 The Supreme Court discusses the issue of what’s medical negligence. The court held that “Negligence has many manifestations it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence as such.
4. COMPONENTS OF MEDICAL NEGLIGENCE
In order to define medical negligence, Winfield or propounded 3 important components which are as follows: A. Existence of Legal Duty
The patient doesn’t necessarily enter into a written or spoken contract with the doctor. When they consent to treatment for their condition, but it is implied that any careless behaviour will undoubtedly constitute a breach of professional obligation or duty. This is where the existence of legal responsibility originates. Therefore, it is the doctor’s responsibility to treat patients with the implied guarantee of a particular level of expertise and understanding. B. Beach of Legal Duty
The health care professional may have violated/breached his or her duty of care by failing to provide treatment that meets the required standard. This breach of duty may occur through an act of omission or commission. C. Damages Caused by the Breach
The patient had to suffer harm or injury as a result of the duty violation. It must be demonstrated that the harm or injury resulted directly from the medical professional’s duty 7 Chandi Prasad Khamari, A Study on Medical Negligence in India: Retrospective and Prospective, International Journal of Legal Science and Innovation, ResearchGate, Volume 3, Issue 3, Published on March,2022,
DOI:10.10000/IJLSI.11698
violation. The healthcare provider’s duty breaking have caused harm or injury to the patient. This harm or injury may be financial emotional or physical.
5. HISTORICAL OVERVIEW
The Indian Legal System has been a little sluggish to adopt the constantly evolving international legal framework on medical negligence. Initially, the majority of medical negligence lawsuits were filed under the Indian Penal Code to address complicated situations involving patients who had suffered serious physical harm. There claims were solely considered criminal offenses. There is one case JUGGAN KHAN V STATE OF MADHYA PRADESH8 can be taken as a prime example: where a homeopathy doctor was found guilty of killing a patient as result of his “gross negligence” after prescribing an ayurvedic medicine that returned out to be toxic. Furthermore, the doctor was found guilty and sentenced to jail, for his negligent actions the family of the claimant couldn’t pursue a claim for damages under tort law as the remedy was not made available to them.
The introduction of the Consumer Protection Act,1986 provided a civil remedy to claimants to seek damages and compensation for injuries they had suffered as a result of medical malpractice. The Consumer Protection Act of 1986 permitted claimants to file complaints under section 11(i), 17 or 21in order to seek remedies. The district, state or national commission will only consider these complaints if they were filed within a period of
2 years, unless it can be proved or demonstrated otherwise that the claimant had sufficient cause
for the delay. The Supreme Court of India decide a landmark case of JACOB MATHEW9 in 2005 in which the Supreme Court finally laid down the guidelines governing the laws of Medical Negligence in India. The said case has not only established the guidelines for governing Medical Negligence but it also provided remedies to the claimants by allowing them to seek compensation for their injuries and also file a criminal complaint to prosecute the doctors for negligence under criminal law. However, the current dilemma confronting the Indian Judiciary is that they interpret the words “rash or negligent” under section 34 of the IPC, 1860 as “gross negligent”. This view or interpretation makes it extremely difficult task for claimants to prove
8 AIR 1965 SC 831
9 (2005) 6 SCC 1
their case that the doctors acted negligently and courts frequently employ this interpretation. Additionally, when addressing claims brought forth by parties who have been wronged instance of ordinary negligence, the courts frequently apply this interpretation. Furthermore, there is a thin line between the civil liability & the criminal liability and the Hon’ble Supreme Court hasn’t yet developed any adequate standards to offer precise direction. To demonstrate that a medical professional were negligent or acted in a negligent manner, three things must be present; duty of care, breach of that duty and the damage or injury sustained by the patient.
6. LEGAL FRAMEWORK GOVERNING MEDICAL NEGLIGENCE IN INDIA
A number of laws and court rulings makeup India’s legal framework for dealing with medical
negligence: India’s Legal System addresses medical negligence through a number of statutes and court rulings: i.
INDIAN PENAL CODE (IPC), 186010/ BHARATIYA NYAYA SANHITA
(BNS), 2023: Section 304A (causing death by negligence) and 337/338(causing hurt/grievous hurt by an act endangering life or personal safety) are often invoked in criminal cases of medical negligence. 11Bharatiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code (IPC) introduce Section 106 which also talks about causing death by negligence. The BNS mandates a jail term of up to five years and a fine for causing death by negligence, specifically mentioning medical practitioners. This has been modified to two years imprisonment and a fine for registered medical practitioners after representations from the medical community. Whereas previous law under the IPC, causing death by negligence was punishable with imprisonment up to two years or a fine. ii. CONSUMER PEOTECTION ACT, 198612 (repealed and replaced by Consumer Protection Act, 2019): Through consumer courts, which recognize
10 Indian Penal Code, 1860, S.304 A, 337 & 338.
11 Bharatiya Nyaya Sanhita, 2023, S.106.
12 Consumer Protection Act, 1986.
medical treatments as service under the Act, Patients can seek compensation for medical negligence. The Consumer Protection Act (CPA) of 201913 covers medical negligence under sections 2(42) • Section 2(42): Defines medical services as service under the CPA. The following provisions of medical negligence are also included in the CPA: • Section 69(1): Sets a two-year time limit for filing a medical negligence complaint from the date of injury • Section 2(1)(d): Define a consumer as a hospital patient who is unable to pay for service • Section 2(1)(o): Excludes free medical services provided by hospitals and nursing homes, but includes free medical services provided by independent doctors. • Section 17: Describes the authority of the Consumer Disputes Redressal Commissions, which have the authority to decide cases involving allegations of negligence against healthcare providers.
• Section 14(1) (d): Would therefore indicate that the compensation to be awarded is for loss or injury suffered by the consumer due o the negligence of the opposite party. • Section 2(1) (g): Defines “deficiency” in service as a failure to provide proper care or treatment, which can include medical negligence. iii. CIVIL PROCEDURE CODE, 190814: Allows for civil suits claiming
compensation for negligence.
13 Consumer Protection Act, 2019, S. 2(42), 69(1), 2(1) (d), 2(1)(g), 2(1)(o), 17, 14(1) (d).
14 Code of Civil Procedure, 1908.
iv. INDIAN MEDICAL COUNCIL ACT, 195615: Medical Negligence is not specifically addressed by the Indian Medical Council Act, 1956, although it does provide the council the authority to establish guidelines for medical professional’s professional behaviour and demeanor. Additionally, the council has the authority to establish a code of ethics and define what constitutes professional misconduct.
7. DUTIES OF A DOCTOR TOWARDS THEIR PATIENTS16
These can include giving the wrong prescription or dosage, not taking possible drug interactions into consideration, or giving the medication in the wrong way. Ø Obligation to the Sick – A doctor should not only be always prepared to respond to the calls of the sick and injured, but he should also be aware of the high character of his mission and the responsibility he incurs in the discharge of his professional duties. This is because he is not required to treat everyone who seeks his service, except in cases of emergency for the benefit of humanity and the hon’ble traditions of the profession. He should always remember that the lives and health of those under his care depend on his ability to provide them with the care and attention they need. By scheduling his visits at the times that patients specify, a doctor should try to improve the comfort of the ill.
Ø Patience, Delicacy and Secrecy- The doctor should be patient and delicate. Patient’s private and domestic life secrets entrusted to a doctor, as well as any flaws in a patient’s character or disposition noticed while they are receiving medical care, should never be disclosed unless mandated by state law. However, there are situations when a doctor must decide if it is his responsibility to society to use the knowledge he has gained through his professional confidences to shield a healthy individual from a communicable disease to which he is likely to be exposed. The doctor should behave in this situation as he would like to be treated by another in the same situation with his own family.
15 Indian Medical Council Act, 1956.
16 B V Subrahmanyam, Medical Jurisprudence and Toxicology, Modi, Lexis Nexis, 26th Edition.
Ø Prognosis: In the best interests of the patient and the family, doctor should neither overstate nor understate the extent to which his family members or responsible friends are aware of the patient’s condition. Ø The Patient must not be Neglected: It is up to the doctor to decide who he will treat. However, if someone asks for his help in an emergency or when a responsible public expects the service, he should react. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends, sufficiently long in advance of his withdrawal to allow them to secure another medical attendant.
No doctor, whether they are fully certified or not, may intentionally engage in careless behaviour that could deny their patient or patient or patients the medical attention they require.
8. DUTIES OF A PATIENT
When a patient hires a doctor to treat his illness, it is reasonable to expect that he will give him all the information possible about the case’s facts and circumstances, give him complete control over his own treatment, follow his instruction to the letter regarding his medication, diet and way of life, and pay him a fair amount for his services. If the patient doesn’t fulfil his obligations, the doctor can end the patient-physician relationship and be released from his legal obligations.
9. REMEDIES FOR CLAIMING COMPENSATION17
As previously mentioned, under the laws of tort and contact, the patient or consumer has the right to obtain damages or compensation in the case of medical negligence. Under the law of tort it is not necessary that consideration should have been paid for the treatment. Compensation is recoverable under tort for a breach of duty by the doctor/hospital. Both tort and contract laws allow for the maintenance of a lawsuit where payment has been made for the treatment.
17 Dr Jagdish Singh, Vishwa Bhushan, Medical Negligence & Compensation, Bharat Law Publication, 4th
Edition.
Following remedies are available for claiming compensation for medical negligence: Ø Under law of contract and tort in a civil court. Ø Under the Consumer Protection Act, 1986 in a Consumer Forum/Commission. Ø Under the Constitution of India by filing writ in the appropriate High Court of Supreme Court, particularly in case of injuries or death in a government hospital: Ø Under the Medical Council of India Regulations and State Medical Council Acts: Ø Under the Fatal Accidents Act,1855: Ø Under criminal law where, apart from punishment, compensation can also be awarded against the doctor. Remedy In a Civil Court For a claim under law of contract or tort, a suit has to be filed in a civil court of appropriate jurisdiction.
It involves: (i) a time consuming and elaborate procedure as envisaged in the Code of Civil Procedure: (ii) leading of oral and documentary evidence: and (iii) payment of court fees according to the amount of the claim. Where treatment is provided free of charge as in case of treatment in a charitable hospital or dispensary or a government hospital, dispensary, etc, the remedy only under the law of tort can be availed of in a civil court. Invoking Article 21 of the India Constitution, which addresses the right to life a fundamental right protected by the constitution is another way to address carelessness that occurs in a government hospital.
With the coming into force of the Consumer Protection Act,1986 and it being held to be applicable to the services rendered by medical professionals by the Supreme Court an additional remedy has been made available, which is simple, cheap, effective and speedy. Unlike a civil suit under law of tort and contract where court fee is required to be paid according to the amount claimed as compensation no court fee was required to be paid under the Consumer Protection Act but after the said Act having been amended w. e. f
15.03.2003 only nominal fee will be required to be paid for filing a complaint under the
said Act. One of the requirements for filing a complaint under the said Act is that consideration should have been paid for the treatment. Since most of the complaints for medical negligence are being filed under the said Act, various aspects of applicability of the Act are being elaborately discussed in the succeeding paragraphs. Remedy under The Consumer Protection Act, 1986 The Supreme Court in INDIAN MEDICAL ASSOCIATION Vs. V. P. SHANTHA AND OTHERS18, has held that the Consumer Protection Act,1986 is applicable to services rendered by doctors and hospitals. While arriving at its decision the court traced the background in the light of the United Nations Resolution on Consumer Protection against which the Consumer Protection Act, 1986 was enacted by the Indian parliament and observed: “On April 9, 1985, the General Assembly of the United Nations, by Consumer Protection Resolution No.
39/248, adopted the guidelines to provide a frame work for governments, particularly those of developing countries, to use in elaborating and strengthening consumer protection policies and legislations. The objectives of the said guidelines include assisting countries in achieving or maintaining adequate protections for their population as consumers and encouraging high levels of ethical conduct for those engaged in the production and distribution of goods and services to the consumers. The legitimate needs which the guidelines are intended to meet include the protection of consumers from hazards to their health and safety and availability of effective consumer redress.
Keeping in view the said guidelines, the Act was enacted by parliament to provide for the better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes and for matters connected therewith. ” Applicability of Consumer Protection Act to Medical Professionals and Incidents Thereof19 18 Indian Medical Association Vs. V. P. Shantha AND Others 1995(8) JT 119: (1995) 6 SCC 651: 1995(3) CPJ 1: AIR 1996 SC 550: 1995 (3) CR 412 (SC).
19 Dr Jagdish Singh, Vishwa Bhushan, Medical Negligence & Compensation, Bharat Law Publication, 4th
Edition.
The Supreme Court’s land mark ruling in the INDIAN MEDICAL ASSOCIATION’S CASE (supra) is examined in the paragraphs that follow, providing context for a discussion of several instances where the Consumer Protection Act of 1986 applied to medical professionals: Patient is Consumer Section 2(1)(d) of the Consumer Protection Act defines “consumer” as under: “‘Consumer’ means any person whoi. Omitted (as it relates to ‘goods’ which is not relevant in the present context) ii.
Hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose Explanation – Omitted (as it is not relevant in present context)” The definition of ‘consumer’ in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services, bought or hired, for consideration.
Such consideration may be paid or promised or partly paid or partly promised under any system of deferred payment and includes any beneficiary of such service other than the person who hires the service for consideration. The Act being a beneficial legislation, aims to protect the interests of a consumer as understood in the business parlance. The important characteristics of goods and services under the Act are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. However, by virtue of the definition. The person who obtains goods for resale or for any commercial purpose is excluded, but the services hired for consideration even for commercial purpose are not excluded. The comprehensive definition
aims at covering every man who pays money as the price or cost of goods and services. However, by virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded, but the services hired for consideration even for commercial purposes are not excluded. As the Supreme Court has held that services rendered to a patient by a medical professional are ‘service’ within the meaning of the Consumer Protection Act, 1986 [Section 2(1) (o)], persons who hire or avail of such services are, therefore, consumers as defined under the Act, with the exception that where the doctor/hospital renders service free of charge to every patient or under a contract pf personal service, a patient availing of such free of charge services will not be a consumer.
Negligence in Treatment is “deficiency in service” Section 2(1)(g) of the Act defines “deficiency” as under: A deficiency is defined as any flaw, imperfection, shortcoming, or insufficiency in the
quality, nature, and manner of performance that must be upheld by any currently enacted laws or that has been committed to be carried out by an individual in accordance with a contract or in any other way pertaining to any service. The Haryana State Commission had noted in RAVINDER GUPTA (Dr. ) V. GANGADEVI20 prior to the Supreme Court’s ruling in the INDIAN MEDICAL ASSOCIATION case (above), that there is a distinct difference between medical negligence under tort law and a lack of quality in the medical services that are intended to be provided within the Consumer jurisdiction. Without a doubt, the latter under the Act encompasses what is meant by negligence in the law of tort, although it is a little more expansive than strict liability under the earlier law.
Under spite of this, the State Commission acknowledged that there would be a grey area between the two until the issue fully crystallizes under the still-developing Consumer jurisdiction.
20 1993 (3) CPR 255 (Haryana SCDRC)
The Supreme Court, in its ruling, appears to have clarified what constitutes a “deficiency” in relation to medical negligence. While dismissing the argument that, under the aforementioned clause defining “deficiency,” a service’s fault, imperfection, shortcoming, or inadequacy must be determined based on certain standards pertaining to quality, nature, and manner of performance, the Supreme Court noted that medical services provided by a medical practitioner cannot be evaluated based on any set standards and, as a result, cannot be said to have. Therefore, Section 14(1)(d) would specify that the compensation to be given is for the consumer’s loss or injury brought on by the other party’s negligence. For the purposes of section 2 (1)(g), a failure in service must be determined using the same standard that is used in a negligence action seeking damages.
There is no question or disagreement that the courts would decide the following in order to prove medical negligence or a service deficiency. i. No doctor or surgeon can promise that a patient will be cured. ii. A fair, reasonable, and competent level of skill which might not be the highest must
be exercised by the doctor. iii. It would not be considered neglect to adopt one of the therapy modalities, if there are several, and to treat the patient with the appropriate care and caution. iv. It would not be considered negligence to act contrary to the standard, reasonable, and competent medical means available at the time. A medical professional must, however, use the appropriate level of caution, expertise, and understanding that he possesses. Negligence would be the failure to diagnose with the necessary skill, which would lead to the incorrect treatment being administered. v. If the doctor is carrying out his responsibilities to the best of his ability, the court would be cautions to attribute negligence in a complex situation.
10. TYPES OF MEDICAL NEGLIGENCE AND THEIR IMPACTS ON PATIENTS
All clinical practitioners and healthcare providers (e. g. physicians, nurses, medical technicians, paramedics, and other healthcare professionals) are responsible for any mistakes that could lead to medical negligence. 21 There are several ways that medical negligence might happen. It usually happens when a medical practitioner departs from the required level of care. Medical negligence can take many different forms in the healthcare sector. Here are a few of the most common types: a. Wrong Diagnosis- Whenever someone visits a clinic, hospital and medical room etc. The diagnosis is made as soon as the patient is admitted. Making an accurate diagnosis is essential to giving any patient medical attention. However, a doctor may be held accountable for any additional harm or damages resulting from a misdiagnosis if the patient is not treated appropriately. b.
Delay in Diagnosis- If another doctor might have reasonably diagnosed the same condition sooner, a delayed diagnosis is considered medical negligence. Delay in diagnosis can result in unnecessary harm to the patient if the injury or illness, sickness is not treated and is allowed to deteriorate over time. It goes without saying that any delay in recognizing and treating an injury can lower the patient’s chances of recovering. c. Medication Error- These may include giving the wrong prescription or dosage, not taking possible drug interaction into consideration, or giving medication in the wrong way. d. Surgical Errors- Surgical procedures are notably responsible for about 80% of deaths caused by medical errors22. Surgical operation requires a great deal of
21 Saad Dahlawi, Ritesh G Menezes, Mohammad Ajmal Khan, Abu Warsi, Saifullah, Mirza Muhammad Naseer,
Medical Negligence in healthcare Organisations and its impact on patient safety and public health: a bibliometric study, National Library of Medicine, PubMed Central (version1), March 3 ,2021 DOI: 10.12688/f10000research.37448.1 22 Surbhi Gloria Singh, “Over 5.2mn medical malpractice cases filed in India annually” show data, Business Standard, 2024.04.29
skill and should be performed carefully because even the smallest or slightest mistake can have serious consequences for the patient. Surgical error includes operations performed at the incorrect location, cuts to any internal organ, significant blood loss, and leaving a foreign object in the patient’s body. e. Unnecessary Surgery- The most common of unnecessary surgery are incorrect patient symptom diagnoses or medical decision made without fully weighing risks or other options. Alternatively, because surgery is more convenient or quick than other option, it is occasionally preferred over traditional treatments. f. Errors in the administration of Anesthesia- A professional (anesthesiologist) is needed to administer and monitor the effects of anesthesia, which is a dangerous component of any significant medical operation.
The anesthesiologist must examine the patient’s condition, medical history, current medications, and other details before beginning any medical procedure that calls for anesthesia. g. Childbirth and Labour Malpractice- Giving birth is a challenging experience for women, and it gets harder if medical professional and nurses don’t handle it appropriately. Medical negligence during childbirth can take numerous forms, such as manging a challenging birth, induced labour issues, misdiagnosing a newborn’s illness, etc. h. Long- Term negligent treatment- Over an extended duration of treatment, medical carelessness might also manifest subtly. In most cases, the neglect can manifest as a failure to appropriately assess the results of the treatment or to follow up with treatment.
11. AMENDMENTS AND RECENT DEVELOPMENTS
a. Consumer Protection Act, 2019 The Consumer Protection Act of 2019 replaced the 1986 Act and brought about a number of amendments that affected medical negligence cases: • Establishment of Central Consumer Protection Authority (CCPA): The CCPA has been established under the Consumer Protection Act,
2019 and has come into w.e.f 24th July 2020 to control & regulate matters
and issues pertaining to unfair business practices, consumer rights violations, including deceptive or false advertising which are detrimental to the interests of the general public and consumers as a class. By establishing the Central Consumer Protection Authority, the Consumer Protection Act of 2019 cleared the path for a new yet familiar system of consumer governance in India. The CCPA’s regulatory role has been strengthened with a robust toolkit of investigation, inquiry, and injunctive measures, unlike the Consumer Councils. • Mediation Cells: Alternate dispute resolution mechanism in the form of mediation cells have been introduced in CPA 2019 Section 7423. The use of mediation cells could speed up the parties settlement process, which could typically take months or even years. Mediation is a new alternative dispute resolution method introduced by the Act.
• Enhanced Pecuniary Jurisdiction: State Commissions may consider complaints up to Rs. 10 crores, National Commissions above Rs. 10 crores, and District Commissions up to Rs. 1 crore for goods or services paid as consideration. b. National Medical Commission Act, 201924 The National Medical Commission (NMC) has replaced the erstwhile Medical Council of India with the intention of bringing about positive reforms in medical education and enforcing ethical standards in the practice of medicine in India. Clauses 3 and 4 of section 30 of the NMC Act of 2019 describe the grievance redressal process. But in their current form, these clauses provide patients and doctors different levels of authority.
Although the Act gives a medical practitioner who feels wronged the ability to appeal to the appropriate NMC appellate forums, it says nothing about a patient or caregiver who feels wronged by a State Medical
23 Bhavika Vajawat, Damodharan Dinakaran, Omprakash V Nandimath, Arpitha HC, Channaveeracahri Naveen
Kumar, Chethan Basavarajappa, Suresh Bada Math, The Consumer Protection Act,2019, A Critical Analysis from a medical practitioner’s perspective, Indian Journal of Medical Ethics, Volume IX, Issue 1 Published on January 12, 2024, DOI:10.20529/JME.2023.073.
24 The National Medical Commission Act, 2019.
Council’s judgement. These provisions must be changed to give harmed patients a fair chance to challenge State Medical Council rulings in order to guarantee justice. The National Medical Commission came into force from September 25,2020, repealing the nearly 64-year-old Indian Medical Council Act 1956 and also dissolving all its bodies such as Medical Council of India and Board of Governors in Supersession of the MCI. c. Clinical Establishment (Registration and Regulation) Act, 201025 In order to guarantee compliance with minimal criteria for facilities and services, this Act requires clinical establishment to be registered and regulated. By holding facilities responsible, it seeks to avoid medical malpractice and enhance the quality of treatment.
12. CHALLENGES AND CRITICISMS
Even with India’s strong legal system, there are still a number of obstacles to overcome in order to adequately handle medical negligence. “Victims of medical negligence in India may face a number of challenges when trying to seek justice and compensation for their injuries”26. Some of the key challenges include: i. Delay in Justice: Long court cases can discourage patients from pursuing justice. It is a time-taking process to decide medical negligence cases. As a result, the complainant may get demotivated. In India, the length of the legal process for medical negligence cases can be emotionally and financially draining for victims. ii. Lack of Awareness: Many people in India are not aware of their legal options or their rights when it comes to medical malpractice and may not known how to take legal action. iii.
Expert Evidence: Obtaining objective and knowledge expert testimony is still a major challenge when demonstrating medical malpractice.
25 The Clinical Establishment (Registration and Regulation) Act, 2010.
26 Sadhana Parmar, Dr.Pawan Shrimali, International Journal of Early Childhood Special Education (INT- JECSE), Volume 13, Issue 01, Published on 2021, DOI: 10.48047/INT-JECSE/V13I1.211221 ISSN: 1308-5581
iv. Fear of Litigation: When doctors prescribe needless tests and procedures out of fear of lawsuits, this is known as defensive medicine. v. Insufficient Evidence: There are some cases in which the doctor already knows that they have been negligent so they remove or delete all the necessary evidence which create a problem and issue for the complainant. So as a result of it can be difficult to prove medical negligence, and victims could find it difficult to compile enough proof to back up their claims. vi. Influence of medical professionals: It may be difficult for victims to take healthcare practitioners to court because of their considerable influence and power. Sometimes, due to the reputation of the hospital, the doctor has more chances of winning the case. vii.
High cost of legal proceedings: Victims may find it difficult to pay for court courts and legal representation because legal proceedings in India can be costly. viii. Limited access to medical records: Medical records, which are essential for demonstrating medical negligence, may be difficult for victims to get. ix. Limits of Insurance Policy: One should be aware of the limits of your insurance policy because the insurance company itself may deny your claim.
13. FUTURE DIRECTIONS AND RECOMMENDATIONS FOR IMPROVEMENT
Several recommendations and future approaches can be taken into consideration in order to improve patient safety and prevent medical negligence. A number of institutional and legal adjustment are needed to solve the issues27. Here are several key directions and recommendation. • Campaigns for Awareness- Patients can seek justice if they are more informed about their rights and the legal options open to them.
27 Sandeep Kumar Sharma ad Dr. Nagender Pal, International Journal of Law Managment & Humanities,
Volume 7, Issue 5, 1639, Published on 2024, DOI:10.10000/IJLMH.118403
Simplified Methods- Victims of medical negligence might receive prompt justice by streamlining and accelerating the legal process. • Panels of Experts: Fair adjudication of medical negligence claims can be facilitated by the establishment of panels of medical experts to offer unbiased assessments. • Enhancing Regulatory Organizations: Ensuring the efficient enforcement of moral principles and norms in the medical field by organizations such as the MNC.
14. CONCLUSION
As everyone knows the Doctor-patient relationship is a fiduciary relationship. Because term ‘fiduciary’ refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. And in Indian culture the doctors are seen as god and patients believe that they will get better after the treatment and that they would be healed by the treatment provided. But sometimes it so happens that even the doctors make mistakes which cost a lot to the patients in so many ways. Also, in certain cases the mistake made by the doctors are so dangerous that the patient has to face problems and undergo immense suffering. Medical malpractice happens daily in hospitals, clinics, and other care settings throughout India.
According to the research from the National Library of Medicine, Publish in 2022, shows an alarming annual incident rate of up to 5. 2 million cases related to medical malpractice across various healthcare settings in India. Medical professionals have an ethical and legal obligation to treat patients as best they can and to prevent negligence related harm. Additionally, patients have the right to pursue damages for any injuries brought on by medical negligence. Patients have the right to pursue damages for any injuries or harm caused due to medical negligence. It is crucial for medical professionals to be aware of their legal and ethical obligations and it is essential that patients to be informed of their rights to ensure that medical care is provided in a responsible and accountable manner.
Ultimately the objective and motive of India’s medical negligence laws is to guarantee that patients receive safe, efficient treatment that respect their wellness and dignity. Medical negligence is a complex issue and it requires a adaptable approach to address it effectively. Patients can receive the finest care possible
and medical negligence can be held responsible for their acts if the legal framework, ethical standards and patient awareness are all united. Due to several serious medical negligence or malpractice cases that have left patients permanently crippled, people are losing faith in the medical field. For the medical profession, some serious reflection and analysis are needed. In terms of self-governance it has completely failed. To operate with total justice, medical ethics must be updated, modify and improved.
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