Negligence is a Latin word which is derived from the word negligentia, which means ‘failing to pick up’. In other words, we can say that if a person fails to exercise reasonable care to avoid injury or damage to other persons or their property then he is negligent.
In a personal injury case, Negligence is the most important concept. In Indian law of torts is based on English Common Law. Thus, the Supreme Court of India follows principles of justice, equity and good conscience. In legal terms, negligence is defined as:-
- A reasonable person has a duty to do something if he or she not done it properly.
- Doing something which has not to do with a reasonable person.
Medical negligence is defined as lack of reasonable care and skill or willful negligence on the part of a doctor with respect to the acceptance of a patient, history taking, examination, diagnosis, investigation, treatment- medical or surgical, etc. resulting in an injury or damage to the patient. The definitions involve three constituents of negligence.
1) A legal duty to exercise due care on the part of the party complained towards the
party complaining about the former’s conduct within the scope of the duty.
2) Breach of the said duty.
3) Consequential damage.
Another important concept that emerged is legal liability for a failure to act. Originally liability for failing to act was imposed on those that undertook to perform some service and infringement a promise to exercise care or skill in performing that service. Gradually the law began to imply a promise to exercise care or skill within the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modem concept of duty.
Although there have been important developments in negligence, the basic concepts have remained the same since the eighteenth century. Today, negligence is by far the widest tanging tort, encompassing virtually all unintentional, wrongful conduct that injures others. One of the foremost important concepts in negligence law is that the reasonable person, which provides the quality by which an individual’s conduct is judged.
In Municipal corporation of Delhi v. Subhagwanti AIR 1966 SC 1750, a clock – tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The building was 80 years old whereas its normal life was 40-50 years. The Municipal corporation of Delhi having control of the structure failed to take care and that’s why they are liable.
In the case of Municipal corporation of Delhi Vs. Sushila Devi, AIR 1999 SC, a person passing by the road died because of the fall of a branch of a tree standing on the road, on his head. The Municipal corporation was held liable.
Medical negligence referred to as medical malpractice is the improper, unskilled, or negligent treatment of a patient by Doctors or other health care professionals. Medical malpractice occurs when a health-care provider strays from the recognized “standard of care” within the treatment of a patient.
The “standard of care” is defined as what a fairly prudent medical provider would or wouldn’t have done under an equivalent or similar circumstances.
Medical Negligence under Consumer Protection Act, 1986
The Consumer Protection Act, 1986 in India has opened a new quasi-judicial, cheap and convenient system of redress for the consumer of goods and services. The Act in section 2(1) (d) defines who is a consumer and in section 2 (1) (o) define what is service. The definition of service isn’t an exhaustive one, so if health service isn’t specifically mentioned within the provision it’s been interpreted that the supply includes such services, In spite of the existence of professional regulatory bodies. The Supreme Court in Indian Medical Association v. Shantha has been the first case in which the court has included health services within the definition of services under the buyer Protection Act:
- Medical Services are treated as in ambit of “services” under Section 2(1) (o) of the Act. It isn’t a contract of personal service as there’s the absence of a master-servant relationship. Contract of service in Section 2(1) (o) can’t be confined to contracts for the employment of domestic servants only. The services rendered to employers aren’t covered under the Act.
- Medical Services rendered by hospital/nursing home freed from the charge aren’t within the purview of Section 2(1) (o) of the Act.
- Medical Services rendered by independent Doctor freed from charge is under Section 2(1) (o) of the jurisdiction of the Act.
- Medical Services rendered against payment of consideration are within the scope of the Act.
- A medical service where payment of consideration is paid by a third party is treated as within the ambit of the Act.
- Hospitals during which some persons are charged and a couple of are exempted from charging thanks to their inability to affording such services are getting to be treated as consumers under Section 2(1) (d) of the Act.
There are many loopholes regarding the act of Negligence or Medical Negligence which need to be covered by bringing certain changes. Here through this article, we can see that the consumer protection act applied in cases related to medical negligence. There it needs certain reforms for its effective usage. Also, the punishment prescribed is insufficient. On several occasions, there has been a demand for increasing the imprisonment period.
The same was found by the Supreme Court judges. There is also a need for care and caution in the part of society, for the service which the medical profession renders to human beings is probably the noblest of all. And there is a need to understand that we have also protected doctors from unjust prosecutions. Thus, a complainant has to produce Prima facie evidence before the Court to support the charge of negligence or medical negligence on the part of the accused doctor.
This Article is Authored by Gunjan Karn, 2nd Year, B. A. LLB Student at IIMT and School of Law, GGSIPU.