MEDICAL NEGLIGENCE BY CHIRAGH DEVAL @LEXCLIQ

MEDICAL NEGLIGENCE

INTRODUCTION

Medical Negligence comprises of two words- Medical and Negligence. Negligence means the failure to meet a standard of behavior established to protect society against unreasonable risk. Medical negligence is actually the misconduct by a medical professional or doctor by not providing enough care resulting in a breach of their duties and harming the patients which are their consumers. In the law of negligence, professionals such as doctors, lawyers, architects, etc. are covered. This category includes persons with special technical skills and knowledge. A doctor or any medical professional is expected to take due care and necessary precautions while treating his patient. The relationship between the patient and the doctor takes the form of a contractual relationship, retaining the essential elements of torts. A medical professional has certain duties towards his patient and the breach of any such duty results in negligence on the part of the doctor. The doctor has certain duties like deciding whether to undertake the case of the patient, the form of treatment or the medication to be administered to him, and obtaining the consent of the patient and his family before giving the treatment. The services of all such professionals are covered under the ambit of The Consumer Protection Act, 2019 and the patient in case of any grievances or complaints can seek their redressal from the consumer forums that are set up by the government for such complaints. However, negligence by doctors is difficult to be determined by the judges as they are not well-versed in medical science. The decisions are mostly taken on expert’s advice and suggestions. Reasonable and prudence are the guiding factor in such cases.

REMEDIES IN MEDICAL NEGLIGENCE

The decision to take legal action against a practitioner may be determined not only by the original injury but also by insensitive handling and poor communication after the original incident. Thus, a patient who alleges medical negligence can resort to any of the following remedies: (a) Complaining to the State Medical Council (b) filing a case before the Consumer Court, (c) filing a case before a civil court, and (d) filing a criminal complaint citing gross negligence

Compensation for medical negligence, however, can be provided only by a consumer court or civil court. The basis of computing compensation under common law lies in the principle of “restitutio in integrum” which, when translated, refers to ensuring that the person seeking damages due to a wrong committed to him/her is in the position that he/she would have been had the wrong not been committed.

CONCLUSION AND SUGGESTIONS 

As the duty of a doctor is to save the life of a patient, he should perform his duty with utmost care and sincerity, in which many doctors or practitioners fail to do so and breach their duty towards the patient. Medicine is one of the noblest profession of the world and it requires setting a realm that can benefit the victims of various ailments. Many professionals or even expert doctors, sometimes fail to take the necessary reasonableness and care which results in unavoidable complications in the patient’s body and can sometimes even be life-threatening to the patient. This profession requires more focus on laws and statutes than any other profession. A unique and independent legislature should be set up to govern such malpractices. Many victims and activists of medical negligence have been alleging to get redressal against malafied acts of medical practitioners and doctors.

Not just for the profession of Medicine but for all other such professions which require a requisite amount of care and skill, strict laws and statutes should be formulated by the legislature. People in our country are already dying due to various medical complications and lack of proper treatment, in such a case, we should make sincere efforts to reduce the deaths caused by medical negligence.

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