What is Medical Negligence? The medical profession is, undoubtedly, one of the noblest professions. Doctors are considered akin to Gods for their ability to save lives and infuse hope in ailing patients.
However, sometimes the very doctors we rely upon fail to heal our lives and instead the health of the patient worsens. A patient has rights against any form of mistreatment meted to him by a doctor. Of late, the awareness of the public has increased regarding the rights they possess in such instances. Patients have started suing doctors or the hospitals involved to claim their rights.
Even though, a doctor does not assure his patient of a positive result, a medical professional impliedly assures his patient that he possesses the requisite skill and while treating the patient, he would use reasonable standard of care.
With the inception of The Consumer Protection Act in 1986 and since 1995, when medical negligence was brought under the ambit of this Act, such cases have been on the rise. This was done so to give some legal sanctity to the doctor-patient relationship as that of a service provider-consumer.
Medical Negligence is a subset of negligence. In India, we follow the common law principles to establish negligence on the part of a person. Negligence comes under the ambit of the "law of torts" that we have inherited from the British. A tort is a redressible civil wrong.
Negligence is the breach of a duty caused by omission or commission to do something which a reasonable man would have done in those situations and on account of which injury results. Essentially, negligence involves three essentials:
Existence of duty of care
Breach of the duty
If a patient believes that he has been wrongly treated by the doctor, he can file a complaint against him/her and claim compensation. However, this is not as simple as it sounds and involves a host of complex issues.
Duty of care When a medical practitioner attends to his patient, he owes him the following duties of care:
A duty of care in deciding whether to undertake the case
A duty of care in deciding what treatment to give
A duty of care in the administration of the treatment
If the doctor breaches any of the above, the patient has every right of action for negligence to the patient.
The Punjab and Haryana High Court explained the term "duty of care" in the case of Dr. Lakshman Balkrishna Joshi v. Trimbak Bapu Godbole (A.I.R 2002 Gauhati 102) in the following words:
The medical practitioner is expected to bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. It should neither be the highest degree nor the lowest.
The question that arises here is: what is reasonable degree of care?
Courts understand the fact that doctors are after all human beings and even the most experienced doctors can make errors. The concept of fallibility of human beings was totally considered, when it was further explained that reasonable degree of care implies the care that would be exercised by an ordinary competent member of the profession who professes that particular skill and not someone who is a specialist in that field. Reasonable degree of care is measured against that of an average competent person in that field and not the highest possible degree of skill.
Thus, a simple lack of care will not make a doctor liable under medical negligence if the doctor had followed a practice acceptable to the medical profession at the relevant time.
But they will be liable if they did not possess the requisite skill which they professed to possess and even if they did, they did not exercise reasonable care and caution while using it.
In fact, the degree of care would be different for generalists and specialists.
There is a difference between "standard of care" and "degree of care". Standard of care is constant and is always that of a competent member in that particular field. However, degree of care is a variable and is dependent on the unique circumstances of the case. Generalists will have their own degree of care based on the ordinary competent members in their field and similarly, specialists will have their own degree of care based on their ordinary competent members. The standard of care, in both the cases is that of ordinary competent members and is thus the same.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field. This was stated by Lord Denning in the case of Hucks v. Cole. (1968, 118 New L.J. 469)
Halsbury's Laws of England explains this "degree of skill and care" in the following words:
"A person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art."
Medical science is not a static field and medical advancements are frequently made. The concept of "reasonableness" varies with time. What is reasonable today may not be so tomorrow. A doctor may not possess the best knowledge/skill (treatment) regarding an ailment, he can always choose from the traditionally available methods.
However, it is required that a doctor be aware of the latest developments and keep himself constantly updated because the newly available method of a particular treatment may become reasonable over the course of time and in that case, the doctor may be sued for his failure to adopt the new method. Thus, a doctor must possess "reasonable knowledge." The criterion of "reasonableness", in each case, is something that the Court has to determine considering the opinions of experts.
Apart from this, most importantly, doctors are also expected to take the "consent" of a patient before performing any surgical operation or other big treatments on them and provide them with the information necessary in that regard. Furnishing the requisite amount of information is necessary, so that based on that information; the patient can make an informed decision.
Breach of duty and Resultant Damage In negligence cases, the burden of proof lies on the patient accusing the doctor. The patient is required to prove, after he has established the existence of a "duty of care" on the part of the doctor that the doctor has breached this duty and the injury he has suffered was a direct consequence of that breach.
For instance, if there are a number of reasons behind the patient suffering injury, it must be shown that the doctor's breach of duty was the "most" probable cause of injury and not a "mere" probable cause of injury. In other words, the factor of "proximity" is relevant here.
Res Ipsa Loquitur Often referred to simply as "res ipsa," it is Latin for "the thing speaks for itself." Res ipsa loquitur allows plaintiffs to use circumstantial evidence to infer negligence. In other words, in such instances, negligence is inferred in the absence of concrete proof. This principle comes into operation only when there is proof that the occurrence was unexpected, that the accident could not have happened without negligence and lapses on the part of the doctor and the circumstances conclusively show that only the doctor is liable.
In other words, the resultant injury clearly establishes negligence on the part of the doctor/health care provider and that no more evidence is required. The act speaks for itself. Without negligence the act could not have occurred and the circumstances were not beyond the control of the doctor performing the act.
In Jacob Matthews v. State of Punjab (A.I.R 2005 SC 3180), the Supreme Court has stated that this doctrine is only a rule of evidence and is applicable in the domain of civil law and not criminal law. Examples include: leaving behind abdominal pack in the abdomen post operation (Aparna Dutta v. Apollo Hospital Enterprises Ltd., Madras; A.I.R 2000 Mad. 340) or the amputation of a leg instead of being put in a cast to treat the fracture etc.
Criminal Negligence and Civil Negligence
Negligence in India can be of both civil and criminal nature. Charges of medical malpractice can be brought under the normal civil courts and criminal courts or the consumer fora.
Under civil negligence, the law is The Consumer Protection Act, 1986, where the complainant alleges "deficiency in service", defined under Section 2 1 (o) of the Act. However, it only includes medical/dental practitioners doing independent medical/dental practice and those rendering free service on behalf of the Government are exempted from this provision. Even persons who had availed the facility of medical treatment in a Government Hospital are not "consumers" as defined in the Act and the said facility cannot be regarded as service "hired" for consideration.
For criminal negligence, the legal provision is Section 304-A of the Indian Penal Code (IPC) which provides for "causing death by negligence":
Whoever causes the 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.
In criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. If the charge in a criminal court is that of criminal negligence, one of the essential elements of crime, "mens rea" cannot be excluded from consideration. Also, certain other elements must be established to determine criminal liability in any particular case, the motive of the offence, the magnitude of the offence and the character of the offender.
Although from the context of jurisprudence, it is stated that no difference can be drawn between civil and criminal medical negligence.
This is so because of the following complexity. There might be a case where the harm/injury suffered by the patient is gross whereas the negligence is little (which may not be sufficient to prosecute him) and the reverse can also happen wherein the injury of the patient is minor whereas the negligence on the part of the doctor is gross. In both the instances, it is futile to charge the doctor under criminal law.
The court in the case of Syad Akbar v State of Karnataka (1979), considered that there is a distinction between negligence actionable under tort (civil) and under criminal law and established that, to be actionable under criminal law, the negligence should be extremely gross or of a very high degree.
Thus, to impose criminal liability under Section 304-A of the IPC, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and the act must be the proximate and efficient cause without the intervention of another's negligence.
In Jacob Matthews's case, the Court further held that: "Criminal liability would arise only if the doctor did something in disregard of the life and safety of the patient."
Evidence The burden of proof lies on the complainant. The accused person will be presumed innocent until proof beyond reasonable doubt is adduced by the prosecution although a mere preponderance of probabilities would satisfy the civil court. Thus, as already mentioned, the standards differ in civil and criminal matters.
In Kanhaiya Kumar Singh v. Park Medicare & Research Centre (1999), it was held that negligence has to be established and cannot be presumed.
However, the Supreme Court has recently ruled that medical negligence cases in all courts may proceed only when the same are scrutinized and approved as 'genuine' by a expert in the medical field which means that the complainant has to satisfy two panels: the experts and the judges.
After the case is approved by the experts, judges being layman when it comes to medical practice, has to rely on opinions of medical experts to decide further. The Prosecution is expected to produce high standards of evidence.
Defences Defences for the accused doctors are available under Section 80 and 88 of the IPC. Section 80 provides for "accident in doing a lawful act" and states that
Nothing is an offence that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
Section 88 provides that:
A person cannot be accused of an offence if she/ he performs an act in good faith for the other's benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.
Anuradha Saha's Case: A turning point in the history of medical malpractice The 2013 judgment of the Supreme Court awarding damages of about 6.08 crore to Dr. Kunal Saha, the husband of the deceased Anuradha Saha was the highest ever compensation paid in India for medical negligence. The patient was undergoing some skin problems and the wrong medication given to her aggravated the problem and she eventually lost her life.
The Supreme Court had ruled that: "The patients, irrespective of their social, cultural and economic background, are entitled to be treated with dignity, which not only forms their fundamental right but also their human right."
The Supreme Court pondered over the issue as to why the core medical team attending to the patient did not pause to question as to why she was getting worse despite all the steroids. No one wondered if the drug itself could be making her worse. Based on this and a number of factors, the Court pronounced the three accused doctors of Kolkata guilty. However, they were only held under civil liability and did not qualify the high standards of grossness to term it as criminal negligence.
Conclusion It is encouraging to see that today people are becoming aware of their rights as patients and not sitting quietly. They are availing the legal provisions at their disposal and fighting for their rights. It is true that he standards set by the various cases of the Judiciary must be followed in each and every case based on their unique circumstances. Strict criterion has to be followed before pronouncing a doctor guilty and strict interpretation of the existing laws must be made. Also, as stated by the Supreme Court, opinions of experts must be taken before proceeding with the case.
However, accusing a doctor of each and every wrong move may hinder him from fully performing his duties in the constant fear of action being taken against him in the form of litigation.
According to Lord Denning, "it would be a great disservice to the community at large, if we impose liability on the doctors for each and everything that goes wrong."
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