Today, in the era of human sufferings and expanded knowledge of human rights and responsibilities , the medical professionals need to realize the necessity to learn and have the knowledge that how the judicial courts work and what are the enacted law statutes that govern the legal acumen of the cases of Medical Negligence in India. The courts determine the fate of the cases of medical negligence so there is a need to strike a balance where both the parties are served justice so that there is no impartiality or harassment towards medical professionals as well as to secure the victim rights. The judicial forums till date are trying their best to uphold the enacted law impartially and provided guidelines and the requisite precautions to safeguard victims as well as doctors. Both civil and criminal consequences of medical negligence are taken into amount in case of negligence depending upon the facts and circumstances of each case.
Introduction
The term “medical negligence” is a term which is nowhere mentioned in the Indian enacted laws, however it has significant relevance in the field of Indian law as it refers to the wrongful acts or omissions of the medical professionals who have a duty and standard of reasonable care towards their patients.
To define the term Medical Negligence in simpler words, Medical negligence is failure of a medical professional to act according to the its standard care who possessed duty of care towards the patient but breached that duty of care and because of that breach of care there is injury caused which is the direct result of the breach of that duty of care.
This article on ‘Medical Negligence in India’ shall deal with the basic features of medical negligence cases in India and its legal enacted sanctions and will also highlight the remedies and safeguards as offered to the victims as well as the medical professionals in these cases.
The article shall also outline the basic essentials as required to fulfil the negligence in cases of medical negligence and provide broad categories of the liabilities that are provoked as a result of negligence and in the end will also provide the relevant case laws and guidelines as provided by hon’ble Supreme Court through various precedents.
Basic Features of Medical Negligence
To comprehend the basic characteristic of medical negligence is can be said that that the medical professional must have a duty of care towards the patient. That duty of care can be whether to undertake the case or not. Duty regarding the decision of what treatment, medications, procedure should be followed. Duty not to take any case which is not under his control or he lacks the required skill or knowledge for the same and will exercise the treatment with reasonable care and caution.
Since the duty of care exists and is the foremost responsibility of the medical professional to take care of that duty of no carelessness but however that there is a breach of that duty and there is a direct nexus between the breach and the injury caused it is said to be medical negligence. In other words, it can be said that the injury must be the direct result of the breach of the duty of care.
Legal Consequences in the cases of Medical Negligence
The legal consequences or liabilities can be divided into 3 different categories – Criminal Negligence, Civil Negligence and Negligence under Consumer Protection Act.
Criminal Law and Medical Negligence
One of the main legal consequence that can be highlighted is the criminal liability imposed on medical professionals in the case of rash or negligent act. To safeguard the interest and uphold the reasonable duty of care and standard of caution. The wrongful act is punishable under Section 304A of Indian Penal Code,1860, which states that whosoever causes the death of any person by doing any rash and negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Many times, medical professionals are prosecuted under this section for their negligence or rash act in operation, treatment or acting carelessly when they are in the position to provide utmost skill and knowledge but breach that duty of care and cause injury. However, to prosecute any person under this section it is essential that there was no intention to cause the harm or injury but has the accurate knowledge that that act if done may or can likely cause death. Other provisions such as Section 337 and 338 of Indian Penal Code,1860 imposes criminal liability on negligent and rash act or omissions.
Civil law & Consumer Protection Act in case of Medical Negligence
Civil liability i.e. monetary compensation can be one of the legal consequences in case of negligent or rash act done by any medical professional that can be done by seeking legal remedy in civil courts or consumer forums. The procedure to seek remedy can be initiated by any relative or close person in the case the negligent or rash act resulted in death of the victim or victim himself can seek compensation if alive. In case of negligent act by a medical professional as decided in case of Indian Medical Association v. VP Shantha[1] , says that the profession of medicine falls under the ambit of ‘services’ as defined in the section 2(1)(o) of Consumer Protection Act if the services are attained for free and if it resulted in some negligent or rash act, the victim shall have the capacity to sue the medical professionals and seek compensation. However, in the cases that do not fall under the ambit of definition as given under section 2(1)(o) ‘services’ as under CPA, the victims can seek the remedy or take resource as under the tort law under negligence and claim compensation. Here the onus to prove that there was negligence and that negligence caused injury shall be on the victim or the patient.
However, the line between the civil and criminal liability is thin and it has been clearly identified and separated by the Hon’ble Supreme Court in case of Dr Suresh Gupta v. Government of NCT Delhi[2], in this case the criminal liability has been put on higher pedestal and the basic requirement id that the negligence must be “gross and reckless”. Mere lack of care or attention cannot be sufficient to prosecute a medical professional criminally. It was observed that in this case the court merely differentiated the concept of criminal and civil liability by specifying the degree of the negligence and is was also doubted on the point that no word of ‘gross’ is mentioned in section 304A of IPC.
Because of these contradictions, a three-judge bench in Jacob Mathew v. State of Punjab[3], in order to hold the existence of criminal rashness or criminal negligence, it shall be proved that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent.
Landmark cases
Jacob Mathew v. State of Punjab[4]
In this landmark case it was observed that no professional can ensure that the result of a particular surgery or treatment shall be positive only. The only assurance is that the professional possesses accurate and required skill and knowledge of the particular profession and performs the given task by due care and caution. So, to charge a professional of negligence it is essential to prove that he did not possess a professional skill requisite for the task or possessed that skill but did not exercise it with complete competence. The skill that is possessed is ordinary skill required for the profession and not some extra-ordinary skill or knowledge beyond the capacity of professional’s knowledge.
V. Krishna Rao v. Nikhil Super Speciality Hospital[5]
In this case it was held by the Hon’ble Court by stating the facts that Mr Rao’s Wife was admitted to Malaria Department of the hospital since she was suffering from Malaria however, she was given the wrong medications by the doctors that treated typhoid rather than Malaria. The victim received compensation of Rs 2 lakhs for the negligence of the doctors. The case was decided by applying the principle of Res Ipsa loquitor (thing speaks for itself) and compensation was given to plaintiff.
Kusum Sharma & Ors v. Batra Hospital & Medical Research[6]
In this landmark judgement it has been observed by the Hon’ble Court that law of negligence applies in the cases after understanding and taking into consideration the facts and circumstances of each case. Since one can ignore the changing nature of medical science and there can be no certain criteria to define the negligence or state the accurate guideline of negligence as no outcome can be predicted or can be certain. If some complication occurs when the professional is acting under requisite skill and with due care and caution and there is content given by the patient to act under the procedure where risk exists, he cannot be held liable for negligence.
Guidelines or Safeguards as Provided by The Supreme Court for Doctors
In case of Martin F.D Dsouza v. Mohd. Ishafaq[7], the Hon’ble Supreme Court of India, in this case has put forth the precautions that need to be taken by the doctors/patients/nursing homes-
The current practices, the infrastructure, hygiene and sanitation facilities should be strictly observed, No prescription should be given without actual examination as it may lead to misunderstandings, necessary tests and investigations should be done accordingly and effectively, doctor should not experiment without the written consent of the patient until necessary to save lives, an expert should be consulted in case of doubts or confusions and it should be necessary that the record of full treatment, tests, diagnosis should be maintained. All these precautions are advisory in nature.
Although certain guidelines are essential and necessarily to be followed by the doctors as per the guidelines provided in the case of Jacob Mathew v. State of Punjab[8] which are as follows-
- Private complaint shall not be entertained until and unless another expert opinion stating the evidence as credible and sufficient that negligent act is committed is produced by the plaintiff.
- The investigating Officer should obtain an un-biased and impartial from a government service doctor in that branch of medicine and apply Bolam test in the facts and circumstances of the case.
- Doctor may not be arrested with credible evidence or in the process of collection of evidence unless the investigating officer is sure that the doctor will flee if not arrested.
Conclusion
Indian Judicial forums have been very considerate and responsible in providing the justice to both parties i.e. the patient as well as the medical professionals. However, the critics have been pointing out that unlike other offences, the offence of medical negligence is tilted towards the favours of medical professionals and given a bit upper hand since the terms of their accountability are bit relaxed and most importantly the onus(burden) of proof lies on the plaintiff. But these relaxations are surely justifiable by understanding the nature of medical science which is unpredictable and uncertain. But the basic competence and duty of care and caution are requisite of their profession. Thus, it can be said that although the medical science is evolving and not certain, but with great power comes great responsibilities to handle and these activities of the medical professionals are required to be checked regularly and maintain accountability but also provide safeguards to save them from unnecessary or minimal or harassment tactics.
FAQ’S
Q.1 What Is Medical Negligence?
Medical negligence is failure of a medical professional to act according to the its standard care who possessed duty of care towards the patient but breached that duty of care and because of that breach of care there is injury caused which is the direct result of the breach of that duty of care.
Q.2 What are the Basic Features to constitute the offence of Medical Negligence?
To comprehend the basic characteristic of medical negligence is can be said that that the medical professional must have a duty of care towards the patient. That duty of care can be whether to undertake the case or not. Duty regarding the decision of what treatment, medications, procedure should be followed.
Q.3 What are the basic Civil as well Criminal Provisions as provided in cases of Medical Negligence?
The wrongful act is criminally punishable under Section 304A of Indian Penal Code, 1860. Civil liability i.e. monetary compensation can be one of the legal consequences in case of negligent or rash act done by any medical professional that can be done by seeking legal remedy in civil courts or consumer forums.
Q.4 What is the Difference between Civil Liability and Criminal Liability in cases of Medical Negligence?
The line between the civil and criminal liability is thin and it has been clearly identified and separated by the Hon’ble Supreme Court in case of Dr Suresh Gupta v. Government of NCT Delhi, in this case the criminal liability has been put on higher pedestal and the basic requirement id that the negligence must be “gross and reckless”.
Q.5 What are Safeguards provided by the Courts to curb the Scope of Harassment or Evil Practices against Medical Professionals?
The Supreme Court provided guidelines in the case of Jacob Mathew v. State of Punjabwhich are as follows-
- Private complaint shall not be entertained until and unless another expert opinion stating the evidence as credible and sufficient that negligent act is committed is produced by the plaintiff.
- The investigating Officer should obtain an un-biased and impartial from a government service doctor in that branch of medicine and apply Bolam test in the facts and circumstances of the case.
- Doctor may not be arrested with credible evidence or in the process of collection of evidence unless the investigating officer is sure that the doctor will flee if not arrested.
References
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109761/
https://blog.ipleaders.in/important-medical-negligence-cases-india/
http://docs.manupatra.in/newsline/articles/Upload/461E58E1-4074-47C1-98EE-22F84BEFC7EB.pdf
https://www.researchgate.net/publication/221833087_Medical_negligence-_Meaning_and_Scope_in_India
https://www.latestlaws.com/articles/all-about-law-on-medical-negligence-in-india-by-gargi/
[1] AIR 1996 SC 550: (1995) 6 SCC 651
[2] (2004) 6 SCC 422
[3] (2005) 6 SCC 1
[4] Ibid.
[5] (2010) 5 SCC 513
[6] 11 (2010) SLT 73
[7] (2009) 3 SCC
[8] (2005) 6 SCC 1
