Medical Negligence in India

Introduction:

Medical Negligence may be defined as the failure on the part of a doctor to exercise his skill and diligence, which are required of a medical professional, resulting in harm to the patient. However, deviation from common practice is not necessarily evidence of negligence. Similarly, a mere accident or error of judgment is also not evidence of negligence. To label an act or omission by the doctor as negligence, all the essential ingredients of medical negligence must be present.

When Does Liability Arise?

The doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty and this, in turn, caused damage to the concerned patient/complainant. To show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. The liability and negligence on the part of the doctor need to be BEYOND ANY DOUBT as per the law laid down in various cases. This is to ensure that the doctors are not always defensive and treat their patients with the legal sword hanging over their head. In some cases, a doctor can also be made vicariously liable for the acts of another, e.g., a junior doctor assisting the senior doctor commits a mistake it becomes the duty of the senior to have supervised him. Hence, the senior doctor is vicariously liable.

The Types of Acts  Attributed are as  Under:

• Damage to any organ due to the negligence of the doctor, which before coming under the care of the doctor was working normally.
• Wrong treatment due to wrongful diagnosis by the concerned doctor.
• Overcharging and not providing a receipt or prescription or discharge summary or test reports.
• In case any surgical instrument is left in the body due to negligence or a wrong part removed by surgery
• Hospital can also be negligent if there was non-availability of oxygen cylinder, life support systems or any other equipment required for a surgical procedure.

When the doctor can’t be held liable: A doctor should not be held negligent simply because something went wrong, and the patient suffered grievous damages or loss of life. He should not be held liable for mischance and/or for taking one choice out of two or favouring one school rather than another in choosing as to what treatment is to be given to the patient. He is only liable when he falls below the standard of a reasonably competent practitioner with equal skills. The standard of reasonable care is a flexible criterion capable of setting the boundaries of legal liability of the professionals depending on the duties founded on principles of torts or contracts.

Remedies Available in Case of  Medical  Negligence:

Consumer Complaint:

For the purpose of the Consumer Protection Act, doctors have been brought under the ambit of those offering services and thus a patient is a consumer, and the Consumer Courts thus have jurisdiction over disputes arising out of a doctor-patient relationship. An aggrieved patient/relative of patient/consumer can approach the jurisdictional Consumer Forum/Commission to seek speedy redressal of his grievances and claim compensation. It is best to have a specialist view and opinion which can be relied upon at the time of filing of the case and be used as evidence.

Who can file: A consumer complaint can be filed either in person or through a pleader The consumer forum shall proceed with the complaint in the manner and procedure as prescribed.

Territorial and pecuniary jurisdiction: In case compensation being sought is less than 20 lakhs, the district forum shall have the jurisdiction. In case it is more than 20 lakhs up to 1 crore INR, the State Commission shall have the jurisdiction. The National Consumer Redressal Commission, New Delhi can be approached if the pecuniary jurisdiction is more than INR 1 crore.

Appeals: An aggrieved party can appeal before the state commission against the order from the District Forum, the national commission against the order from the state commission and directly to the Supreme Court of India from the impugned order from the national commission. Please note there is only one national commission which is at Delhi for the entire country. All the appeals from different parts of the country are filed at the National Commission, Delhi.

Criminal Complaint- an alternate remedy:

Alternately and simultaneously, a criminal complaint can also be lodged by the aggrieved party. Various sections of the Indian Penal Code can be invoked depending upon the particular facts of the case. The Magistrate is expected to take cognizance and order enquiry into a case of medical negligence. The provisions of law relating to imprisonment, fine etc. shall be imposed upon an erring doctor if found guilty of medical negligence.

Precedents:

• Complaint to medical council: A case against a doctor can be filed in the Medical Council of the concerned system of medicine. However, Medical Councils do not have the power to award compensation or to imprison. It can only warn the doctor, suspend or revoke their license.

Vicarious Liability of Hospitals:

The Hon’ble Supreme Court of India through its many judgments like Savita Garg vs. National Heart Institute [(2004) 8 SCC 56] & Balram Prasad vs. Kunal Saha [(2014) 1 SCC 384], has settled the law that a hospital is vicariously liable for the acts of its doctors. Similarly, in Achutrao Haribhau Khodwa vs. State of Maharashtra [(1996) 2 SCC 634], the Apex Court unequivocally held that the State would be vicariously liable for the damages which may become payable on account of the negligence of its doctors or other employees.