MEDICAL NEGLIGENCE

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5 months ago

Author :Ramneek kaur, a student at Bharati Vidyapeeth Deemed University, New Delhi

Abstract

A patient who visits the doctor for their treatment expects the doctor to act prudently. The relationship of a patient and the doctor is of fiduciary nature, the patient always trust the doctor for the skill he uses while treating them. So ultimately it is the duty of the doctor to handle and treat their patient with due care, when this duty is breached by the doctor it is believed that the doctor has not used his erudition appropriately as required to the patient and this whole act is considered as medical negligence. In this Article we will confer upon the duties of the doctor towards the patient. Furthermore, we will be focusing on discussing the meaning, essentials, and liabilities of medical negligence enclosed with some case laws.

Keywords

Medical Negligence, Treatment, Informed consent

Introduction

Medical Negligence is something which is said to be committed when the doctor has neglected the standard of care provided to their patient. The doctor is not liable for mere negligence committed non intentionally while taking all the necessary measures towards the patient but the doctor is absolutely liable when his act of negligence is of gross nature causing damage or injury to the patient. A patient approaching the doctor is like a layman in terms of medicine and he fully relies on the doctor for cure of his/her treatment, but if the doctor fails to provide the standard treatment which the patient seeks from the doctor he not only breaks the trust of the patient but create a situation of mental distress for the patient.

Meaning and Essentials of Medical Negligence

Meaning of Medical Negligence:

Medical Negligence, which is often weighed as medical malpractice is done by the doctor when he treats his patient ordinarily rather than diligently which results in injury or actual damage to the patient. The moment doctors behave casually, neglecting the quality care and treatment that should be provided to the patient they held liable for their acts under medical negligence.

Essentials of Medical Negligence:

The doctor owes a duty of care towards the patient.
The doctor breached the duty of care towards the patient.
Damage or injury caused to the patient.

Medical Negligence is said to be committed when these three essential elements are fulfilled. The doctor being a person with good knowledge and skill in medicine is expected to treat the patient really well, abiding the rules stated under code of medical ethics. The doctor owes several duties towards the Patient, such as, patience, delicacy, secrecy, prognosis and so on, when any such duty is breached which the doctor is obliged to perform towards the patient and it thereby affect the patient in the form of injury or damage, then the doctor is charged under medical negligence. The damage here can be any disability, mental distress, financial loss, hardship or any suffering severe than before.

Duties of the Doctor towards the Patient

Informed consent- The doctrine of informed consent is prevailing from a long time now, in which the doctor is having a duty to take consent from the patient before beginning with the treatment. This consent can be oral or written and it can be withdrawn by the patient at any step of the treatment by the patient. Informed consent includes the following details which the doctor must adhere and inform to the patient, such as the condition of patient’s illness, risks and benefits in the process of treatment, disclosure of risks like death and disability, alternatives of the treatment, any sufferings or inconvenience or any other thing the patients wants to know.

Confidentiality- The communication between the doctor and the patient is privileged and protected. It is the obligation of the doctor to not disclose any information of the patient to an outsider or third person unless it is necessary to reveal it to any near relative or fellow doctor for the beneficence of the patient.

Patience and delicacy- The doctor must treat the Patient politely with utmost patience and delicacy. As the patient is already in the condition of mental trauma due to his/her illness which creates an obligation on the doctor to calm the patient and give the best of their treatment exercising their prudence in the medical field.

Prognosis- It is the duty of the doctor to neither exaggerate nor mitigate the condition of the illness and its future repercussions to the patient. Doctor should reveal the veracious information about the illness of the patient to them and their family as to which best decision can be taken in the interest of the patient.

The patient must not be neglected- Once the doctor begins with treating the case of a particular patient he cannot withdraw it without giving a notice to the patient and his/her family. The doctor is obliged to treat the patient with fidelity, addressing all the concerns of the patient with maintaining the trust of the patient along with it. The doctor should not neglect the patient in any case unless it is any emergency that too with giving a prior notice instead the doctor should make a comfortable environment around the patient as to which the patient feel calm and comfortable to communicate with the doctor.

Proper care and treatment should be given to the patient- The patient approaching the doctor should be given proper care maintaining the duty, standard and degree of care towards the patient. The doctor should not behave carelessly while treating the patient instead he should be very diligent and focused on minute details of the patient as to which he can provide the best required treatment and guidance to the patient.

Liabilities and under Medical Negligence

Res Ipsa Loquitur, an established maxim which means “things speak for itself” is absolutely related with the case of medical negligence, as in which the damage or injury occurred to the patient speaks itself that it has occurred due to negligence on the part of the doctor. Example, A doctor while operating left the scissors in the stomach of the patient which results in death of the patient and later on in the postmortem report it is found that the death is occurred due the leftover scissors in the stomach. So it is a clear cut case of Res Ipsa Loquitur, where the negligence can be easily determined on the end of the doctor.

There are three types of liability in Medical negligence, i.e., civil, criminal and liability under Liability under Consumer Protection Act, 1986.

Civil liability- It is attracted when negligence is even committed without intend. If harm is caused irrespective of the intent, the person who has done the harm is liable to pay the harm to the person whom it is done. It works on transfer of loss from the harmed person to the one who harmed enforcing some amount of compensation which is decided by the court relying on the harm done and its discretionary power.

Criminal liability- Actus non facit reum, nisi mens sit rea, means the act alone does not amount to guilt; it must be accompanied by guilty mind. Criminal liability is attracted when there is presence of mens rea exercised willfully or recklessly. The doctor committing criminal negligence is liable under section 304-A of Indian Penal code, 1860 which states that: “whosoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

Liability under Consumer Protection Act, 1986- A consumer who has suffered loss, injury or deficiency in services can file the complaint under the Consumer Protection Act, 1986. Ubi jus ibi remedium , means “where there is right there is a remedy”. When the consumer’s right to be treated with due care is breached he can avail the remedy under the above mentioned Act and get compensation according to the deficiency. The complaint can be filed before District forum (for compensation less than 20 lakhs), State commission (for compensation within 1crore) and National commission (for compensation beyond 1crore). A consumer can also file Appeal against the decision of District forum before State commission, Appeal against the decision of State commission before National commission, Appeal against the decision of National commission before Supreme Court. The time of the appeal filed should be 30 days after the commencement of the decision in any case.

Case Laws

Parmanad Katara v. Union of India, 1989 SCC (4) 286

In this case a writ petition was filed by an activist, concerning the death of a person driving a scooter hit by a car at high speed. The injured person was taken to a nearby hospital, where the doctors refused to treat him and suggested him to go to another hospital which was 20 km far from the current hospital. The injured person died while he was in the way to another hospital. So it was held by the supreme court that

Every doctor of government hospital or otherwise should treat the patient and extend his services to preserve his life.
There should be no legal hindrance for medical professional upon treating the injured person immediately.
It is obligation of health professionals to preserve the life of innocent.
Lawyers and judge should not unnecessary harass the medical professional.

Poonam Verma v. Ashwin Patel, 1996 SCC (4) 332

In this case a homeopath physician with a diploma in Homoeopathic Medicine trespassed in the field of allopathic. After taking the prescribed allopathic medicines the condition of Mr. Verma worsened and he was admitted to nursing home, later on when there was no recovery he was transferred to Hinduja hospital, where here he died at the age of 35. The wife of Mr.Verma filed a complaint under national commission as a consumer. The court focusing on the statutory duties and violations made by Dr. Ashwin verma held him liable to compensate the appellant with 3 lakhs and 30,000 as appellant’s cost. The respondent 2 was not held liable as the condition of Mr. Verma was already worsened by the medication prescribed by respondent 1.

Pravat Kumar Mukherjee v. State of West Bengal & Ors, 2005 CPJ 35 NC

In this case national commission rewarded compensation of Rs. 10 lakh to the parents of deceased for mental agony. The deceased was denied from the treatment after 45 minutes for not depositing Rs. 15000. He was also having a mediclaim policy of Rs 65000 the receipt of which was showed and it was promised to pay the entire amount and requested to start the treatment, despite that the hospital did not provide the adequate treatment required to the deceased at that moment and the deceased died while his transfer to another hospital .

Indian Medical Association v. V.P. Shantha & Ors, 1995 SCC (6) 651

There were increasing cases related to doctor negligence, and it was contended whether an Indian medical practitioner can be held liable under Consumer Protection Act, 1986 and the service rendered at the hospital come under this Act. So it was held that the definition of services under Consumer Protection Act, 1986 is inclusive of medical sector as patients are paying for the services. This landmark judgment allowed patients (consumers) to file cases under Consumer Protection Act, 1986 or sue the doctors for deficiency in services and directed that

The complaint can be filed before District forum (for compensation less than 20 lakhs)
State commission (for compensation within 1crore) and
National commission (for compensation beyond 1crore)

Conclusion

Medical Negligence which is a humongous issue nowadays can be avoided if the Doctor adhere to his duties towards the patient and abide by the things sworn under the Hippocratic Oath. The Doctor is obliged to treat the patient with prudence, preserving the life of the patient. For a Doctor the injured person is a patient whom he has to treat irrespective of if the patient is a criminal or an innocent. The doctor is a person on whom the patient relies fully for their treatment, so the doctor fulfilling the expectations of the patient should give them the best of their treatment, informing all the future causes and benefits of the treatment and it is the duty of the doctor to maintain the trust of the patient and should be veracious and Fidel while treating the patient or explaining them anything.

FAQs

What is Medical Negligence?

It is the duty of the doctor to handle and treat their patient with due care, when this duty is breached by the doctor and caused injury or damage to the patient then it is believed that the doctor has not used his erudition appropriately as required to the patient and this whole act is considered as medical negligence.

What are the Essential Elements of Negligence?

Medical Negligence has three essential elements:-

The doctor have a duty of care towards the patient.
The doctor breached the duty of care towards the patient.
Damage or injury caused to the patient.

Medical Negligence is said to be committed when these three essential elements are fulfilled.

Describe the duties of the doctor towards the patient.

Informed consent
Confidentiality
Patience and Delicacy
Prognosis
The patient must not be neglected
Proper care and treatment should be given to the patient

What are the liabilities under medical negligence?

There are three types of liability in Medical negligence, i.e., civil, criminal and liability under Liability under Consumer Protection Act, 1986.Liability under civil and Consumer Protection Act, 1986 is compensation according the damage, injury, loss or deficiency in service. Whereas the doctor committing criminal negligence is liable under section 304-A of Indian Penal code, 1860.

References