Medical Negligence

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This blog is about the issue, I something personally feel for, it’s so grave and demeaning that professionals take some- one’s post cherished possession called life so casually. So I stumbled upon this topic because of a recent catch up with my colleague at office. It began by me asking about how her parents were doing, to my utter despair and shock she told me even after getting her parents admitted to India’s best medical care centre; senior doctors were not able to diagnose the ailment and had been treated for the disease which never existed. Sounds familiar, right?

The scenario is familiar to so many people around globe, let alone India. According me it amounts to full- fledged murder. According to a recent study at Johns Hopkins University, more than 250,000 people in the United States die every year because of medical mistakes, making it the third leading cause of death after heart disease and cancer. While as back in home (India) according to research paper titled “A Study of Medical Negligence Cases decided by the District Consumer Courts of Delhi” written by Mukesh Yadav and Pooja Rastogi published in Journal named Indian Academy of Forensic Medicine thers are aboud 5.2 million medical injuries recorded in India.

Arguments put forth by medical community

In most of the cases these medical practitioners come up with arguments it is the patient who is not in a position to clearly describe the symptoms, basically miscommunication.

Arguments put forth by patients or attendants

The most common compliant that is heard from receiving end is the attitude of doctors is very indifferent. Again we can’t generalise it but nonetheless it is not receptive. With medicine and health care becoming a booming industry I came to read about this news that a super multispecialty hospital in Delhi changed the attitude towards the patient just because they realised his family cannot afford treatment. Another thing is lack of good and skilled practitioners, which is menace to patients who come to hospital with hope.

What can be done to reduce cases of medical negligence?

Though it may seem trivial but establish a caregiver and protector kind of relationship with your patient, for when they approach medical practitioners you guys are no lesser than creator to them. Right of patient to be informed about what procedures will be operated on them. The patient should be asked about consent if they are willing to undergo any such procedure. Right of confidentiality with respect to any ailment. There should be proper laws and legislations to combat this issue. Proper protocol should be followed diligently. And most importantly doctors have to be compassionate and be ready to alleviate the sufferings of patients. Workshops should be conducted to train medical fraternity how to deal with emergency and crisis situation and most importantly safer handling of patients. These workshops should be made mandatory and compulsory for seniors doctors as well as working staff of hospitals. Making medical care more accountable by means of stringent laws, heavy fines and compensation. The standard guidelines to be laid down for adequate health care and it should be made compulsory that these guidelines are adhered to.

Legal Position in India with respect to medical negligence

In most cases of medical negligence culprits get away for there is no proper awareness among people about medical terminology and nuances. In India the concept of medical negligence comes under the category of 1. Criminal Negligence 2. Civil Negligence 3. Negligence under Consumer Protection Act.

Criminal Negligence

Section 304Aof the Indian Penal Code of 1860 imposes the punishment of two years or fine or both who so ever causes death of person by his rash or negligent act.

But Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal liability. Under Section 80 (Accident in doing a lawful act) if act is done without any criminal intention or knowledge and act itself is of lawful nature and utmost care and caution has been taken it will not form an offence under Indian Penal Code.

According to Section 88, once a consent has been given by the patient, doctors cannot be held liable if he performs the procedure in good faith.

Civil Negligence

The position under civil or tort law is very important because it encompasses the fact that even if medical professionals provide free services it comes within the purview of law. It can be said that where the ambit of Consumer Protection Act 1986 ends, the tort law begins. This is for simple reason that some services which might be rendered by individual doctor or the hospital may not fall within the meaning of “services” as defined in Consumer Protection Act hence patient will have no remedy under CPA at that time. It is where civil law comes to the rescue. In the case of Sir Lawrence Jenkins in Emperor v. Omkar Rampratap it was held that in order to attract Section 304-A of Indian Penal Code, the burden of proof is on plaintiff to prove that the death was direct result of rash and negligent act of the accused doctor or medical authority and there has been no intervention from other person during the procedure.

Negligence under Consumer Protection Act

From beginning there has been a huge speculation and debate on whether medical services are included in the definition of “Services” as enshrined under Section 2(1) (o) of the Consumer Protection Act (CPA). The question was answered positive in the case of V.P Shantha case which bought medical profession within the ambit of ‘service’ defined in the Consumer Protection Act, 1986. It was argued that the medical practitioner should be kept out of the purview of the Consumer Protection Act 1986 , because their conduct was already being governed by Medical Council Act which provided for disciplinary action for violating the code and standards of medical ethics and for the breach of duty to exercise reasonable care and skill while rendering medical service to the patient. The Supreme Court held that the medical practitioners are not immune from a claim for damages for negligence under Consumer Protection Act. This case enabled the patients to get speedy justice by treating patients as consumers of medical service and hence negligence in service or any defect in service will bring medical practitioners with the ambit of Consumer Protection Act.