Medical Negligence in a Nutshell: Indian Legal Framework | Criminal Law Attorney for Medical Negligence Case in in Delhi NCR | Criminal Lawyer for Medical Negligence Case in in Delhi NCR
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The word “negligence” and particularly the term “medical negligence” has been widely heard of, however, the etymology of these words cannot be plainly implied but rather on the contrary have to be studied from the point of view of both law as well as medicine. The term “negligence” means failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation. Talking about negligence as per civil law it has often been defined as the breach of legal duty by an act of carelessness and callousness where the law mandates attention. In the case of Mrs. Moni Sen v. State of Kerala (SA. No. 832 of 2000(G)), the Hon’ble Kerala High Court held that “in the case of medical man, negligence means failure to act by the standards of a reasonably competent medical man at the time. There may be one or more perfectly proper standards, and if he conforms to one of these proper standards, then he is not negligent”. Therefore, medical negligence has three essential ingredients i.e. a legal duty of the party complained of to exercise due care towards the party complaining the former’s conduct within the scope of his duty, breach of the said duty and the consequential damage that follows.
Highlighting the Indian legal framework medical negligence is categorized under three different aspects, i.e., criminal negligence, civil negligence and negligence under the consumer laws. All these laws are applied according to the act conducted by the person for which punishment and compensation is awarded by the Court as per these laws. Section 304-A of Indian Penal Code 1860 deals with criminal negligence, which states that “whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.” Doctors are also subjected to vicarious liability, however, we must understand that no human is perfect and even the renowned specialist can make mistakes in detecting and/or diagnosing a disease. Sections 81, 82, 88 and 92 of the Indian Penal Code 1860 provides defences for doctors accused of criminal negligence. A doctor can only be held liable for negligence if one can prove that he/she is guilty of failure that no other doctor with ordinary skills would be guilty of if acting with reasonable care.
In the case of Dr. Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole (1969 SCR (1) 206), the Hon’ble Supreme Court held that if a doctor has adopted practice that is a right course of treatment and considered proper and by a reasonable body of medical professionals who are skilled in that particular field then he or she will not be held liable negligent only because something went wrong. There have been instances where fraudulent and vexatious cases have been registered against doctors which damage their reputation. Therefore, the Hon’ble Supreme Court in the case of Jacob Mathew vs the State of Punjab (Crl. Appeal 144-145 of 2004) directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressure in performing their duties. However, in some situations the complainants have invoked the “principle of res ipsa loquitur” or “the thing speaks for itself”, meaning thereby that in certain circumstances no proof of negligence is required beyond accident itself. This principle comes into operation only when there is proof that the accident was unexpected and could not have happened without negligence and lapses on part of the doctor.
Further, the criminal negligence is covered under the Indian Penal Code, but, when criminal negligence is clubbed with the consumer laws then the same has been a matter of debate as to whether medical services are explicitly covered under the definition of “Services” as enshrined under the Section 2(1)(o) of the Consumer Protection Act, 1986. In a landmark decision the Hon’ble Supreme Court in the case of India Medical Association v. VP Shantha (Civil Appeal No. 688 of 1993) held that medical services are within the ambit of the term “Services” defined in the Consumer Protection Act, 1986. Thus, the patients can now sue the doctors for deficiency in services before an appropriate Consumer Forum on part of doctors if patients sustained injuries in the course of treatment.
The position regarding medical negligence under civil law is also very important as in cases where services provided by doctors do not fall under the ambit of the Consumer Protection Act, 1986, the law of Tort begins where a patient can claim negligence, however, the onus to prove the act of negligence on part of the doctor and hospital is on the patient.
The liability for medical malpractice is governed by different statutes and laws in India, however, the time has come where legislature should take steps to make an independent statute to govern medical malpractices. Another matter of concern under our current legal framework is the “Burden of Proof” i.e. if a patient alleges medical malpractice, he/she shall require a very high standard of medical evidence to prove the base of his allegation. Further, there are frivolous and vexatious complaints filed by the patients against the doctors. Thus, an independent law for medical malpractices/negligence is a dire need to bring in more accountability and transparency in the entire medical profession.
Authored By: Adv. Anant Sharma