MEDICAL NEGLIGENCE: A CRITICAL STUDY
Medical Negligence has these days have become one of the major issues in India. Our experience discloses to us that the medical profession is perhaps the noblest profession. Patients normally consider the doctors as God who are going to treat their disease, medical problems and at last, they will be cured and healed by them and we at least anticipate that they should be cautious while performing their obligations toward their patients. Medical Negligence is similarly named as clinical negligence that is the wrong, inept, ill-advised, or imprudent treatment of patients by their doctor, dental specialist authority, nurture, or other restorative administration specialists. In 1995, the SC judgment for the case Indian Medical Association v. V.P. Shanta and Ors brought the medical administrations inside the scope of the governance characterized in the Consumer Protection Act 1986. This characterized connection between diligent and clinical experts by enabling legally binding patients to prosecute specialists in the event that they sustained wounds over the class of treatment in ‘process free’ consumer protection courts for remuneration. There is an immediate need to check expanding patterns in the number of medical negligence cases and the crumbling nature of health care in India.
No Doctor knows it all. There is a reason why it is called medicine practicing.
Let us first comprehend what really Negligence is as we probably know there are various definitions of negligence as it comes under various facets of law, for instance, contract, tort, crime, and so forth. As in layperson terms, we can interpret negligence as a deletion to take proper care over something which results in damage. In other words, we can term it as carelessness, neglectful, or say doing of something which a reasonable man would not do. In legal expressions, we can say failure of a responsibility to take care of something which outcomes in damages.
The notion of negligence and negligence law appeared in a very famous case of Donoghue v. Stevenson3 until this case’s conventional view was that there were a number of relationships that generated a particular obligation, including that of a doctor and patient, employer and employee. Apropos to another well-known English case King v. Phillips4 it was seen that an issue of carelessness develops exactly when there is immediate damage to the offended party by a wrongdoing and the damage ought to be unsurprising. As a result, in short, we can say that damage is an essential ingredient to compose negligence.
II. MEDICAL NEGLIGENCE – LAWS IN INDIA-
In the situations of Indian law, medical negligence comes under three categories that are:
1. Criminal negligence
2. Civil negligence
3. Negligence under the consumer protection act
Various provisions regarding the compensation in the form of punishment and the remedies are covered under these laws.
(A) Criminal Law and Medical Negligence:-
Indian Penal Code has set out the medical occupation on an alternate frontal area when contrasted with ordinary individuals. Section 304A of the IPC 1860 states that “whoever causes the death of an individual by a rash or negligent act not amounting to culpable will be homicide rebuffed with detainment for a time of two years or with a fine or with both”. Consequently, criminal liability can also be obligatory upon a medical practitioner under particular situations wherein the patient dies in between the time of managing anesthesia during the time of operation. Death must also be due to poisonous intention or whole negligence8.
(B) Civil Law and Medical Negligence:-
“The spot concerning neglect under civil law is significant as it includes many elements within itself. Under the tort law or civil law, this principle is relevant even if clinical professionals furnish free services10. It tends to be said that where the consumer protection act ends, tort law begins. In cases where the services provided by the doctors and the hospital does not come under the extent of the CPA, patients can claim compensation by assisting tort law. Here, to prove that the damage has occurred due to negligence of the doctor or the hospital, the burden lies on the patient.”
(C) Consumer Protection Act and Medical Negligence:-
“Since 1990, there is enormous supposition and discussion on whether clinical services are expressly or completely remembered in the meaning of Services as under section 2(1) of the Consumer Protection Act. Absence of organization infers any deficiency, imperfection, or inadequacy in the quality, nature, or way that is required to be kept up by or under any law until further notice in power or has been attempted to be performed by an individual in execution of an agreement or in any case about any service.”
III. IMPORTANT CASE LAWS AND ANALYSIS-
“At the point when we talk about the milestone judgment in medical negligence cases, the very first case that strikes in our brain is one of the most debated cases with the highest sum of compensation ever allowed to date. In Kunal Saha v. AMRI Hospital14 broadly known as the Anuradha Shaha case, a case was filed in the year 1998 with the claim of medical negligence on a Kolkata based AMRI hospital alongside its three specialists, in particular, Dr. Sukumar Mukherjee, Dr. Baidyanath Halder, and Dr. Balram Prasad.” The facts of the case are that the spouse of the offended party was experiencing drug hypersensitivity and the specialists were negligent in endorsing medication which bothered the condition of the patient and finally the patient died. In a nutshell, the final judgement was given by the Supreme court on 24th October 2013 and pay of around Rs 6.08 crore for the demise of his spouse .In any case, is that amount is adequate to fulfill the insufficiency that has been made by her death? No amount of money whatever is given can’t bring her back and what drove her to death, the negligence of the specialists. A little negligent act can prompt perilous closures. It is there obligation to serve their patient appropriately because of their negligence now and again huge numbers of the patient lost their lives.
Another case of V. Krishan Rao v Nikhil Super Specialty Hospital 201015,” Krishna Rao, an official in the malaria division recorded a complaint against the hospital for negligent treatment in treating his better half. His wife was wrongfully treated for typhoid instead malaria, because of an inappropriate drug given by the hospital.”
At long last, the verdict was given and Rao was granted pay of Rs 2 lakhs. For this situation, the rule of Res Ipsa Loquitor which signifies ‘the thing speaks for itself’ was applied and the remuneration was given to the offended party.
A simple amount of 2 lakh rupees won’t diminish the disturbance and pain which has been caused to the patient both psychologically and physically. If the treatment has been given of typhoid, at that point clearly the medicines would have been given for a similar reason and medication have their reaction too. And how they can be so negligent while releasing their sole obligation towards their patient. All these are the sole questions that are to be solved.
It isn’t declared that medical practitioners are negligent or not responsible, nonetheless, while performing the duty which requires a lot of consistency and care, frequently many professionals come up short or break their obligation towards the patient. Medication which is believably the purest profession requires setting a environment that can profit the survivors of various illnesses. “Many specialists even the expert now and again neglect little things to be dealt with a while practicing which may bring about damages to the patients that could have been prevented and many times the demise of the patients. This sort of medical negligence needs more concentration than to incorporate it for different laws or resolutions. A free and extraordinary legislative body should be set up to administer negligence. Numerous activists and the survivors of medical negligence have been claiming to get redressal against malafied demonstrations of medical practitioners and specialists.” The patient can’t prove doctor’s deficiency past a sensible uncertainty, since, the field of medication is unpredicted and unforeseeable and anything can occur anytime in a manlike body thus, it returns to the offended party. Therefore, it is high time that “the laws directing upon the medical negligence get changed to suit patients first. Also, the patients ought to be sharpened with respect to their rights against medical acts of neglect by civil societies through an appropriate education transmission.”
Not only for medication, but the law be also made pertinent to all the experts practicing in various regions which require an imperative measure of expertise and an obligation of care. Individuals in our nation are now victims of numerous diseases and are dying because of the same. Let’s put forth attempts to diminish these deaths and amend the profession so that individuals don’t die on where they come to get healed.