Introduction:
Medical negligence is one of the most challenging and onerous negligence, it consists of various claims. The doctors and the medical practitioners are involves in the medical negligence. Based on the judgments given by the various court, it is evident that claim under medical negligence were mostly unsuccessful.
Negligence is the omission to do something which a reasonable man guided by those consideration which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do[1]. A study made by Harvard University, 2017 revealed that in India nearly 50 lakhs deaths occur annually because of medical negligence due to lack of practical knowledge among the doctors and nurses to handle patients when brought to the hospital.
The Acute Critical Care Course (ACCC)[2] aims to train the surgeons of various specialization and the medical specialists such as gynecology, surgical, orthopedics, and emergency to suspect and identify patients at risk of deterioration. In Indian hospitals, implementing the course especially in the rural areas can bring down the mortality rates due to medical negligence by nearly 50 percent.
It is estimated that 98,000 people die every year in the US because of mistakes made by medical practitioners. The law is not intended to punish any act of a physician that has caused injury to a patient. It concerns only acts of negligence. This study reveals the basic structure about the medical negligence.
Essential Elements of Medical Negligence:
On the basis of various judicial pronouncements, the essential elements of ‘ Medical Negligence’, this can be distinguished in brief and in so far as it relates to the medical profession, are as follows:
(i) The Doctor must owe the patient a duty of care;
(ii) The Doctor must have committed a breach of that duty; and
(iii) The patient must have suffered damages as a result of that breach.
A breach of any of the foregoing duties gives the patient a right to take action for negligence. A breach of duty is made by a doctor when he fails to perform the standard and degree of care like a reasonable doctor of his time or as a member of his class.
In Kusum Sharma v. Batra Hospital,[3] the Supreme Court held that a doctor is often called upon to adopt a procedure involving a higher risk element, but which he honestly believes in providing a higher chances of success for the patient rather than a procedure involving a lower risk but higher chances of failure and just because a doctor, in view of the extremity of illness, has taken a higher element of risk to redeem the patient out of his/her.
Liability under Medical Negligence:
Liability of the medical professional’s falls mainly under three heads namely tortious (primary and vicarious liability), criminal and contractual liability.
- Tortious liability for negligence has two main purposes. Firstly, it provides compensation to those injured as a result of the negligence of the others, thereby acting as a source of insurance. Secondly, impose penalty on the person who found guilty.
- Criminal liability involves for an act to amount to criminal negligence, the degree of negligence should be higher e gross or very high degree.
- Contractual liability means when a patient approaches a hospital for medical care, it establishes a relationship between the hospital and the patient which is contractual in nature.
When does Liability arise?
The liability of the doctor does not arise when the patient has suffered any injury, which has fallen below that of reasonable care. In other words, the doctor is not liable for any injury suffered by the patient which is not caused by the doctor. He is liable only for those who are the result of a breach of his duty. Thus, once the existence of a duty has been established, the burden of proof lies on the plaintiff to prove the breach of duty and the cause of the obligation.
In the medical negligence, with regard to the cause of injury, the court said that the most predictable cause of the injury should be the breach of duty on the part of the doctor. The court will reject the claim if the breach of duty is one of the causes of the injury.
In some landmark cases, the court said that if the patient was injured not by the doctor but by any another person, the doctors were held liable. The need for such responsibility may arise if the person committing the act cannot owe the patient a duty of care at all or if he has not violated any duty in committing the act.
When there is No Liability?
In all cases where a patient has suffered an injury, the doctor is not necessarily liable. This may be due either to the fact that he has a valid defense or to the fact that he has not violated his duty of care. The error of judgment may be a mere error of judgment or an error of judgment on the grounds of negligence. It was only in the case of the former that the courts recognized that it was not a breach of the duty of care. It can be described as the recognition in law of human error in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be incorrect. It is a situation in which we can only say that there was an error in retrospect. It did not seem wrong at the time the decision was taken. If, however, due consideration of all the factors was not taken, this would amount to an error of judgment on the grounds of negligence.
Compensation:
The court has to award damages based on certain principles. In India, there are various legislations which give the method of calculating the losses incurred due to the death of a person or due to an injury suffered by him. The Supreme Court has given a method of calculating the compensation in the case of Mrs Sudha Rasheed V. State Of Karnataka[4].
The basic principle in awarding compensation is to put the plaintiff in the position he would have been in had the tort not occurred. Damages may be awarded under the head of pain and suffering. The damages may be awarded in loss of amenity. Under this the plaintiff is compensated for loss of any fact of life, which he will not be able to enjoy anymore, because of the accident.
Section 14(1) (d) of the consumer protection act, says that the compensation is payable to the consumer for loss or injury suffered due to the negligence of the opposite party. This provision enables a consumer to claim and empowers the commission to redress any injustice done to consumers. Thus, a patient who is alleging medical negligence can resort to any of the following legal remedies: (a) Complain to the State Medical Council, (b) file a case before a consumer court, (c) file a case before a civil court, and (d) file a criminal complaint citing gross negligence.
Conclusion:
Medicine is one of the noblest professions that require setting a realm which can benefit the victims of various diseases. It is not expressed that doctors are negligent or irresponsible but while performing the duty which requires a lot of patience and care, often many practitioners fail or breach their responsibility towards the patient.
In India, we can see a case involving medical negligence almost every day. It is seen in the big as well as in the small hospitals, clinics, dispensaries, etc. Due to this a large number of people are suffering in our country. Our country is facing a terrible time these days as the doctors also are taking advantage of poor people and are making their service sector, a profit-oriented sector and changing their vision from providing valuable medical services to gaining profits from innocent people. People in our country are already victims of many diseases and are dying due to the same, we should make efforts to reduce these deaths and focus on improvising the profession so that people do not die in the place where they come to get healed.
In my opinion if the citizens of our country with the support of the government impose rules on these hospitals and also see to it that these rules are being properly implemented then there is a chance that the standards of our hospitals would improve and as a result the skill and knowledge of specialized and authorized doctors would be used to the fullest.
[1] Blyth V. Birmingham Waterworks Co (1856) 11 Ex 781, Baron Alderson
[2] https://www.business-standard.com/article/current-affairs/india-s-medical-error-deaths-nearly-5-mn-a-year-can-be-cut-by-50-expert-118102800193_1.html
[3] (2010)3SCC480
[4] 1995 1 SCALE 130 (143)
This article is authored by Kousalya Ravi, student of B.Com LL.B (Hons.) at SASTRA ,Thanjavur.
Also Read – Medical Negligence: An Overview of Its Consequences
