CHEARS

Medical negligence has become one of the serious issues in the country in recent years. Even the medical profession, which is known to be one of the noblest professions, is not immune to negligence which often results in the death of the patient or complete/partial impairment or any other misery which has adverse effects on the patient’s health. Around 52 lakh medical injuries are recorded every year in India out of which 98,000 people in the country lose their lives in a year because of medical negligence. It is really a serious concern for the entire nation that 10 people fall victim to medical negligence every minute and more than 11 people die every hour in the country due to this medical error.

Patient- Doctor relationship

The doctor-patient relationship is a relationship of a special trust and confidence with an underlying understanding of duty to act for the benefit of the fiduciary with a strong reliance on the skills and acumen of the doctor, he being in a string influential position. The relationship of a patient and doctor being built on the highest level of trust and confidence, and health being the dearest assets to a person’s wealth and his sustenance of family, any slip of advice, wrong and untimely diagnosis, compromised standard of care and precaution etc. often threatens the sanctity of the profession with allegation of commercialization and money-making business. In a land mark case, the court held that “the attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient.

Tortuous Liability of medical Professionals

This is a specific tort of professional negligence where the act or omission falls short of the test of ‘reasonable and prudent person. The widely acclaimed judgment of Jacob Mathew v. State of Punjab & Another has been instrumental in deciding the distinction between the jurisprudential concept of negligence in civil and criminal law. It observed that, “for negligence to amount to an offence, the element of men’s rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.”

For negligence to be proved, the following elements are necessary

a. Duty of Care

b. An act: There must have been an omission or commission of an act by the doctor which was not supposed to be done

c. Breach of duty: “Such act or omission must have been occasioned either by not doing something which a reasonable man, under given set of circumstances, would do, or by doing some act which a reasonable prudent man would not do.”

d. Consequential damage: Breach in duty has directly resulted in the injury of the person, either economic and non-economic.

Any allegation of negligence against the doctor has to be materially substantiated with the best of evidence available in medical science and opinion of the experts.

Consumer Protection Act:

The advent of Consumer protection Act, 1986 brought a swiping change in the perspective of rights of consumers ranging from right to be informed on quality, standard of services, consumer awareness, redressal for any exploitation of consumers’ interests. Thus, questions have often been raised on patient’s status of being a ‘consumer of services’, medical practitioner’s status as rendering’ service’ under section 2 (1) (0) and circumstances when it can be deemed to a service.

The verdict in Indian Medical Association v. VP Shantha, (1995) 6 SCC 651) “settled all the concerns by covering the medical profession within the ambit of ‘service’ excluding those services of consultation, diagnosis and treatment (both medical and surgical) being rendered free of charge or under contract of personal service. However, service rendered at a non-Government hospital/nursing home where charges were required to be paid by persons who were in a position to pay and persons who could not afford to pay were rendered service free of charge would fall within ‘service’ as defined in section 2(1)(0). Thus, settlement of legitimate claims arising under section 14(1)(d) and section 2(1)(g), the Consumer Disputes Redressal forums would apply the same principle as is applied before the civil courts. However, the allegation of ‘deficiency of service’ would fail in a high-risk case where accidental eventualities are not controllable.”

Challenges faced by the victims of Medical Negligence

· If is a time-taking process to decide medical negligence cases. So, sometimes it leads to the de-motivation of the complainant.

· Sometimes, due to the reputation of the hospital, the doctor has more chances of winning the case.

· There are some cases in which the doctor already knows that they have been negligent so they remove all the necessary evidence which creates a problem for the complainant.

· You need to know about your insurance policy limits because sometimes the insurance company itself rejects the case.