Medical Negligence and Remedies
Akashay Lal, Damodaram Sanjivayya National Law University, Visakhapatnam
What is Medical Negligence and it’s Remedies?
What happens when a person is not feeling well? He approached a doctor with the hope that the doctor having all the knowledge and skill to treat him will bring relief to his problem.
A sort of relationship takes place between the doctor and the patient, the relationship is of trust that the doctor with the best of his ability will diagnose and treat his problem. The doctor owes the patient certain duties, which he is bound to do. If the doctor breaches any duty which he is bound to do, there occurs a cause of action against the doctor for negligence. When such type of negligence takes place by a doctor in the scope of medical practices, it is known as medical negligence.
The medical profession, all over the world is considered one of the noblest professions a person does. Since a medical professional is directly in charge of saving a person’s life, he is considered next to God.
A patient generally approaches a doctor according to his years of practice, or his reputation in the society. The patient while approaching a doctor or even a hospital carries some expectations, those expectations can be termed into two folds:
1. That the doctors and hospitals will provide the required medical treatment with the best of their ability and knowledge.
2. Secondly, they will not do anything that will harm the patient in any such way because of their acts of negligence, carelessness or more such acts.
The consequences of medical negligence can be broadly put into three categories:
1. Criminal Liability
2. Civil Liability
3. Disciplinary Action
● Criminal Liability
Criminal liability can be related to the provisions of the Indian Penal Code, 1860. There is no specific provision for “medical negligence”. For example, section 304A of IPC deals with “the death of a person by any rash or negligent act and leads to imprisonment up to 2 years.” The provision deals with death caused due to rash and negligent motor vehicle driving and also medical negligence leading with the death of a patient.
Similarly, other general provisions of IPC, such as Section 337 (causing hurt) and 338 (causing grievous hurt), are also often deployed concerning medical negligence cases.
The Supreme Court in a case held in August 2004, that to persecute a doctor for medical negligence leading to death, the standard of negligence to be proved should be very high as to term it as “gross negligence”, not merely a careless act.
Going by the Supreme Court ruling, it is evident that if a person wants to prosecute a doctor for negligence which led to the untimely death of the patient, he has to prove that the negligence done by the doctor was not just carelessness but an act of “gross negligence”.
● Civil Liability
Civil liability can also be known as “monetary compensation”. It includes the claims for damages which the patient or the family has suffered. In case of any act of carelessness by the doctor or the hospital, and because of that carelessness some injuries or hardships occur, the doctor or the hospital is liable to pay damages for the same.
If a medical professional in his capacity of an employee of a hospital commits an act of carelessness or recklessness while dealing or treating a patient, the hospital in which the treatment was going on can be tried to pay damages for the same.
This was proved in a case where the hospital authorities were held to be negligent for not keeping the bathroom clean, because of which an obstetrics patient fell which ultimately lead to her death. The hospital authorities were required by the court to pay Rs. 1 lakh as damages for the same to the family of the patient as compensation.
Can a hospital or a doctor be tried under the Consumer Protection Act for their Negligence?
In a landmark case, the Supreme Court held medical care can be termed under “service” and can be brought under the Consumer Protection Act. This means, a person who has suffered damages because of the conduct of the hospital authorities or doctor whatever the case may be, can be tried in Consumer Courts, as the patient here can be termed as a consumer who has paid for the “services” he has received as “treatment”.
How to determine whether the act is “criminal” in nature or “civil” in nature?
The diversion point between criminal liability and civil liability in a case of medical negligence is very thin, and there are no criteria as such to determine it.
The Supreme Court in one of its cases held that a medical professional can be criminally liable if the negligent act is “gross” in nature. In other words, the act should be of such degree of negligence which cannot be ignored. Mere lack of necessary care is no criteria for criminal liability of a medical professional.
In a subsequent case, it was held that the negligent act done was of such a degree that the danger was imminent. The Supreme Court here meant that the act may not be “grossly negligent in nature” but the act was such that in normal circumstances it will lead to injury of the patient.
We know now, there is no fix criteria for determining the liability, but what we know is both civil and criminal liabilities are not exhaustive, which means, a person can file a civil case and as well as a criminal case against the medical professional if he feels that he has suffered damages because of their acts.
● Disciplinary Action against the Medical Professional
Medical Professionals being negligent in their medical practices can also be punished in the form of imposition of penalties in the disciplinary action against them.
Professional misconduct in the medical profession is governed by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, which is altogether different legislation. In this, appropriate State Medical Councils are empowered to take disciplinary actions against the misconduct of the doctors.
The medical profession, as stated above is one of the noblest professions considered all over the world. It requires a lot of patience, hard work, and commitment to fulfil their responsibility towards the patient. It has been seen in many incidents that many doctors sometimes neglect small things that need to be taken care of which results in damages to the patient or many cases, even death, that could have been avoided.
Having special legislations and even courts for this negligence and recklessness may improve the present scenario in India where a person may not consider going to court for these things as it takes time and energy to fight the same.
1. M. Reddy vs. State of Andhra Pradesh
2. Indian Medical Association vs V.P. Shanta & Ors.
3. Jacob Mathew vs the State of Punjab
7. Indian Penal Code, 1860
8. Indian Medical Council Regulations, 2002