Growing Medical Negligence

Growth of Medical Negligence

Author: Ms. Vaishali Malhotra, Kurukshetra University

Introduction

Medical Negligence simply means the breach of a legal duty to care in the Healthcare profession. It refers to the carelessness in a matter in which the law mandates carefulness. Breach of this duty by the medical expert gives a patient the right to initiate action  as a suit for claims against medical negligence. Individuals who offer medical advice , prescription and treatment implicitly states that they have the adequate skill and knowledge to do the necessary task to cure the patients. Along with  this they are implicitly state that they have required skills to decide whether to take a case, to decide the treatment, and to administer that treatment.Public awareness regarding medical negligence in India is day by day increasing. Hospitals now days  are increasingly facing complaints regarding the medical negligence in terms of lack of adequate  facilities, standards and certification  of professional competence, and the appropriateness of their therapeutic and diagnostic methods. After the enactment of Consumer Protection Act, 1986,  some patients who faced negligence in medical treatment have filed legal cases against doctors established a platform stating that the doctors were negligent in their medical service and for that purpose accused of that medical negligence will compensated for the wrong done to him. Growing of awareness regarding medical negligence resulting to a number of legal decisions relating to the composition of medical negligence and  what is required to prove it.

I.Types of Medical Negligence

There are different categories of medical negligence which are listed below :

• Misdiagnosis
• Delayed Diagnosis
• Surgical Error
• Performance of wrong surgery
• Operation of wrong part
• Foreign objects left in the body
• Perforation of organs
• Cosmetic surgery causing scarring and disfigurement
• Hazardous Infection caused by poor hygiene
• Wrong Site Surgery
• Performance of unnecessary Surgery
• Errors being made in Anaesthesia
• Long-Term Treatment negligently.

II.Differentiation between Medical Negligence and Medical Malpractice

Basically, medical negligence is concerned with the law of torts, specifically deals with the tort of negligence which is exactly the cause of action for most patients against the treatment of their doctors. In this, the degree of suffering to the patient is much less than the medical malpractices. On the other hand, Medical malpractices refer to the larger category of misfeasance done by doctors such as inappropriate behavior towards patients or behavior which brings the profession into disreputation. The degree of something in medical malpractice is much greater than the medical negligence.

III.Origination : Concept of Medical Negligence

The historical background of medical malpractice extends back to several centuries. The very first identifiable case of medical negligence can be identified in the year 1374. In that case medical negligence was caused by a surgeon had attempted to repair his patient’s mangled hand. Unfortunately, after the treatment done by the doctor,the patient’s hand still remained deformed. Afterwards, that case was dismissed because of errors in procedures.

In ancient Greek times, usually, a medical practitioner was sentenced to death if a patient died under his care as a result of the nonusage of orthodox practices. Moreover, the rules and regulations were so strict that if a patient lost his limb after operation then the medical practitioner has also to lose his hands.

According to Roman times, if a patient suffered an injury due to ignorant medical negligence. Then, his or her family can file lawsuit and claim the compensation.

In the Germanic empire, medical negligence was regulated by the promulgation that provided for a medical practitioner who caused the death of a patient to be handed to the family of the patient to do with him as they pleased.

Today, when medical negligence is suspected the patient or his/her family may choose to institute a civil claim to recover damages or can file a criminal charge against the doctor under various provisions of the law of India including Consumer Protection Act and Indian Penal Code etc.

IV.Essentials of Medical Negligence

A person who claims negligent medical negligence by the medical practitioner must prove the following elements which are listed below:

• a duty of care was owed by the physician.
• the physician violated the applicable standard of care.
• the person suffered a compensable injury.
• the injury was caused in fact and proximately caused by the substandard conduct.

V. When does duty arise?

It is a well known fact that a medical practitioner implicitly owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. However, in some cases, it was traced that if the doctor-patient relationship is not established then courts itself have imposed a duty upon the doctor to act with due care.

 In   Parmanand Kataria vs. Union of India, Supreme Court said that“every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life”.

Dr. Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole

In this case, the apex Court held that if a doctor has adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong. Furthermore, medical practitioners must exercise an ordinary degree of skill but they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the medical practitioner has adopted the right way of treatment with reasonable care and adopted a best-suited manner to the patient she/ he cannot be blamed for negligence if the patient is not cured.

VI.Roots of Medical Negligence

Various reasons have been traced to the increase in both the number of medical negligence cases. The most prominent of these are listed below:

1. The decline in professionalism among health care practitioners.
2. Greed in the minds of the medical practitioner.
3. Employing of negligent medical staff.
4. Captives of minds of Medical Practitioners regarding profit earning.
5. Lack of moral values.

VII. Where to get a Claim of Medical Negligence?

1. Generally, the district level and the state level consumer forums are firstly accessed by the victims of medical negligence. But the absence of a non-medical person in consumer forums is an alarming issue.

• Medical Council of India (MCI) and the State Medical Councils can also be approached but the Medical Council Act, 1956 has no penalty provision to penalize a negligent medical practitioner. These Medical Councils generally can cancel the registration on a temporary or permanent basis if the doctor is found guilty of serious medical negligence. Medical councils are not empowered to grant compensation to the victim.

• Human Rights Commission could also be approached if the medical service provider is governmental in nature including public undertakings as well as public hospitals. Legally, medical negligence is defined as ‘lack of reasonable care and skill or willful negligence on the part of a medical practitioner in the course of treatment of a patient whereby the health or life of a patient is endangered or damaged’.

VIII. Governing provision related to medical negligence

Generally, many lawyers hesitated to handle cases related to medical negligence since cases are complex in nature as these cases are hard to prove. Ordinarily, criminal cases are not instituted for medical negligence cases. Section 88 of the Indian Penal Code lays down that an act not intended to cause death, done by consent in good faith for person’s benefit, does not constitute an offense. But, the complaint instituted by the victim may not be entertained if he or she has not produced evidence before the court to supports his or her contentions regarding the medical negligence he suffered. But in cases of gross negligence the medical practitioner do not have absolute immunity from the criminal litigation after the enactment of Consumer Protection Act ,1986.

IX. Preventive measure of medical negligence

Defensive practice

To prevent the cases of medical negligence a defensive practice should be exercised by the medical practitioners. The patient also exercise from defensive practices while choosing the correct medical practitioners, maintained by the medical practitioner’s, degree of skills they possess, whether medical practitioners and expertise of the medical practitioner

 In the course of treatment and unwanted medical negligence claims, the doctors have to exercise defensive practices to act with the due care required.

Urgent need of  separate Medical negligence Act

As far as the number of medical negligence cases, there is urgent need to have a enactment to be passed by the Parliament of India for medical negligence which may provide adequate provisions regarding the priorities and the preventive measures to be followed to eradicate the problem of medical negligence. As after 70 years of independence , there is no specific promulgation regarding medical negligence yet which is an alarming issue to be noticed.

X. Recent  developments

Shoda Devi v. DDU 2019

In this case, there are two observations made by the honorable judges which are as followed :

Granting reasonability higher amount of compensation

Proper message to be sent to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity.

Quantum of Compensation

The court urged that if the victim is coming from a poor or a rural background then the award of compensation cannot go restrictive.

XI.Conclusion

According to my view, there is an urgent need to evaluate the actual manner in which India chooses to address medical negligence. In addition to the fear of systemic deficiencies such as heavy costs of litigation, delayed and protracted litigation, as well as dependence on judicial discretion, do not provide effective justice to victims of medical negligence. In a country like India where there is enforcement, the level is so vague, therefore a sense of decision making by the department of Healthcare should be there by pro by providing proper rules and guidelines to be followed to prevent the cases of medical negligence. Moreover, a developing country like India needs to have a specific enactment for medical negligence providing separate provisions to be imposed on the accused of medical negligence effectively.