Introduction

Negligence is a failure in executing the ethical duties which is important to discharge in certain circumstances. Some code of conduct is to be carried out by the professionals and their recklessness leads to destruction. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.^[1] Negligence in the medical profession is taking the way of the lives which are given by God as per his will. Medical Negligence is a breach of duty and care by the medical professionals which is also called medical misconduct.

It comes under the domain of torts law, criminal law, consumer protection act, and professional misconduct. Under all these laws medical negligence is contemplated as an offense. Lack of professionalism harms the health of patients. Doctors save the lives of their patient but with their recklessness and omission of care and duty, they also endanger their lives. The negligence of the doctors trembles the trust and confidence of their patients.

This article focuses on how negligently doctors behave with their patients, its outcome with the cases, and how it can be conquered and medical negligence both tort and crime.

Negligence both tort and crime

In torts negligence is defined as an omission to take reasonable duty and care which an ordinarily prudent man would never do. It is a breach of duty which the defendant owed to the plaintiff. It is foreseeable and it can be prevented. For example: – Putting a wet floor sign after mopping and omitting it would lead the passer-by to fall on it and getting injured.

In the case of Aparna Dutta v. Apollo Hospital Enterprises Ltd.^[2] the abdominal pack was left in the abdomen post-operation. In torts medical negligence is a specific tort. Omission of certain specific duties of care and caution.

In crime negligence is defined as gross negligence. To constitute a crime, it requires both mens rea and actus rea. In this a person risks the life and safety of the other individual by misconducting. For example: – Driving at high speed while talking on the phone.

In the Jacob Mathew v. State of Punjab^[3] it was stated by the Supreme Court that to make a doctor criminally liable for a patient’s death, it must be proven that there was negligence or misconduct on the part of the doctor which, based on civil liability, went beyond a mere question of compensation. Criminal liability would only arise if the physician did something disregarding the patient’s life and safety. In the case also, certain directions have been given.

Based on the intensity of the negligence the case is treated as the criminal or civil. If the person can prove that he took reasonable standard care then it would not amount to medical negligence.

Consent form signed before undergoing the surgery

Doctors give their best to deal with each case but cannot give 100% assurance that the patient will be fine or not. Hence, before going through any surgery the consent form is signed by the family members that have given their consensus for the surgery and its consequences, they cannot sue the hospital and the doctor. But if the patient’s death is caused due to the negligence of the doctor then they can hold both the hospital and doctor because they could have avoided the death of the patient by exercising reasonable and standard duty and care.

This is known as informed consent where the patient is informed about all the consequences of the surgery and what the expected result of it. If the patient is aware of the outcome of the surgery then he would have never agreed for the surgery. If your doctor or hospital was negligent in their care for you (i.e., if your doctor did not exercise his duties as a reasonably prudent doctor in his situation would), and this negligence led to your complication, an informed consent form means nothing.^[4] In this scenario, even if your complication was listed correctly on your informed consent form, you are still able to bring a medical malpractice claim against your doctor or hospital.^[5]

But not every time the death or any other happening is caused by the negligence act of the doctor. “Merely because the operation did not succeed, the doctor cannot be said to be negligent” and the appeal of the doctor was allowed.^[6]

By signing the consent form both the medical practitioners and patients come into the contract in both the expressed and implied terms. Doctors have to fulfill the condition of the contract and breaching it would lead to violation of the contract and doctors can be held liable, have to compensate patients for the same. 

In medical profession doctors there is a prevalence of medical negligence because of several reasons: –

Money overpowering their honesty

Medical is a noble profession and dealing with honesty gives the best output. Patients come to the doctor for getting treated from their ailment and sufferings. But most of the negligent acts are performed during the surgeries or operation, the utmost duty of care is required in this profession as they are undergoing the treatment of their body i.e. their sensitive part. Patients come to them so that they can live a happy life. In private hospitals this happens on the most frequent basis, the money which doctor gets per surgery is a handsome amount and the greed for more money shifts their focus.

They take the responsibility of the surgeries and operation or the case which they have never dealt with and just because it will give them a huge amount of income, also indulging themselves in more than one surgery. Both situations will end up making the doctors negligent.

The cases in which they have never dealt will require their due care and attention, often they lack in that because they have no experience and they might use wrong instruments that might risk the life of the patients.

Indulging in more than one surgery will shift their focus and their concentration may be diverted. Doctors are the face of God but are not God who are experts in multi-tasking and dealing with more than one case will occupy their mind and cases start mixing and because of all this they will act negligently.

Lack of services provided by the hospitals

The doctor owes a duty of care towards each ailing patient and the hospital must provide all the services to the patients and the doctor that is required or essential for treating them. It should be their priority that they are treating their patients with utmost care and honesty. The doctor and patient share the fiduciary relationship. Medical services are covered under the Consumer Protection Act, 1986. In the case V. Kisan Rao v. Nikhil Super Specialty Hospital^[7] it was held that the complainant is absolved from proving the liability of the respondent and the respondent has to prove that he did not breach the duty of care which he owes.

Impact of medical negligence on patients 

Medical Negligence nerves the trust of the patients. They go with the very strong esteem and give the discharge of their body to the one who can cure it. But their recklessness destructs the trust which is built for the doctors. Unnecessary surgeries, dropping off the medical equipment while undergoing the operation, hiding the essential information from the patients regarding their health. Negligently doctoring them will leave them in deep scars.

All this has a physical, emotional, and financial impact on both the patients and their family members. Physical impact as their part of body dysfunctions, does not respond properly, etc. Emotional impact as risk of burnout, depression, fears, and anxiety. Medical negligence leaves them emotionally vulnerable. Financial impact as a lot of expense is done on the treatment and the outcome of their expenditure is the death of the patient due to negligent acts.

Most of the time just to generate the amount of the medical bill they keep the dead patient under observation claiming him to be alive and charging the cost of medicine and hospital services.

Getting rid of medical negligence

• Awareness: – Its an important aspect that each person should be aware of before undergoing any operation or surgeries. They must be informed about the various cases of medical negligence and how their life is affected by coming in the wrong trap.
• Strict laws: – Negligence coming under all the contracts, crime, torts law, and consumer protection act must be made stricter and more effective. Proper regulation must be done of these laws.
• Immediate complaints: – If any patient has come across any such malpractice by the hospital or doctor, they must immediately report to the consumer forum so that inspection could be done.
• The government should increase its expenditure on expanding public health and resources so that doctors and use efficient resources and technology for treating the individuals.
• Only experts or skilled doctors should do the surgery and they should not pass over to the nurses for the same. If found so then the hospital administration staff would take the action respectively.
• Doctors should adhere to the medical protocol and violation of it would lead to the seizure of their license and punishment for the same.
• There must be effective and proper communication between the hospital staff and the doctors so that it does not result in the harm of their patients.

Conclusion

God has given us life and for safeguarding that life God has made doctors. Technically, if our lives are endangered or at risk then doctors give us the other life to live by doctoring us. That’s why it’s called a respectable and honest profession. But meeting the ethical code of conduct of this profession by dishonesty or malpractices will convert the life-giving profession as a killing occupation. Its high time or wake up call with the increase in medical negligence cases that India should revamp the medical laws. Public health should be the utmost priority of the government and proper check and responsibility is owed towards both the public and private hospitals. Private hospitals are preferred because of high-qualified doctors not because they are experts in making the overcharged bill. Doctors should be given more training for dealing with critical cases. Forums must be established to provide them with remedies.

Both the patients and doctors should be vigilant while dealing with a particular case. Doctors must respect their patients and treat them with happiness, due care, and responsibility.

God chose and trusted them to take care of his children. Therefore, it’s the duty of the doctor not to break his trust.

Glossary

1. Contemplated- view
2. Recklessness- carelessness
3. Revamp- rebuild
4. Vigilant- alert

References

• The Law of Contract Act
• Consumer Protection Act, 1986
• Winfield Torts
• SCC Online

Questions

• How medical negligence is a specific tort?
• Can appointment of skill and efficient doctors get rid of medical negligence?
• Why is money over-powering the medical profession?
• If the person has signed the consent form for the particular treatment but the doctor removed some part then can the doctor be sued?
• What is medical misconduct?

^[1] Jay M. Feinman, Law 101 (2014).

^[2]  Aparna Dutta v. Apollo Hospital Enterprises Ltd, AIR 2000 Mad 340

^[3] Jacob Mathew v. State of Punjab, AIR 2005 SC 3180

^[4] Steven Palermo, I Signed an Informed Consent Form – Can I Still Sue For Medical Malpractice? Long Island Personal Injury Law Firm | Palermo Law, P.L.L.C. (2019), https://thesuffolkpersonalinjurylawyer.com/signed-consent-form-can-sue-medical-malpractice/ (last visited May 22, 2020).

^[5] Steven Palermo, I Signed An Informed Consent Form – Can I Still Sue For Medical Malpractice? Long Island Personal Injury Law Firm | Palermo Law, P.L.L.C. (2019), https://thesuffolkpersonalinjurylawyer.com/signed-consent-form-can-sue-medical-malpractice/ (last visited May 22, 2020).

^[6] Dr. (Smt) Kumud Garg v. Raja Bhatia, 2004;(I) CPJ 369.

^[7] V. Kisan Rao v. Nikhil Super Specialty Hospital, 5 SCC 513, 2010