One of the noblest of all the professions is the profession of doctor. For last one and a half years we are observing how the doctors are working day and night in the disastrous Covid-19 situation. Wearing PPE kits and working 24X7 is not an easy task at all. Even in the absence of this Covid-19 disease, the doctors are considered as a personification of divinity in a country like India. A patient and his doctor when come together for a treatment, they form a medical relationship. This relationship takes the form of contract in the Law of Torts. In this contract, the patient and his doctor on certain terms agree to start a treatment. Here, if the doctor breaches his duty and makes any mistake during the course of treatment of his patient, it will be termed as negligence on his part. Such a negligence by doctors is known as medical negligence.
The components of medical negligence are:
- Existence of legal duty
- Breach of legal duty
- Damage caused by such breach
The Hon’ble Supreme Court in Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre and Ors placed reference to the Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18, wherein it was defined as “22. Negligence. – Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”
It is the duty of the doctor and the hospital to take consent of the patient before starting for the purpose of diagnosis, treatment, organ transplant, etc. In case if the patient dies, the consent of his family members must be taken for the purpose of post mortem, organ transplant, etc. Consent by the patient or his family members is given in following ways:
- Express Consent: It can be either oral or written. Written consent is considered superior due to its evidential value.
- Implied Consent: Implied consent may be implied by patient’s conduct.
- Tacit Consent: Tacit consent means implied consent understood without being stated.
- Surrogate consent: This consent is given by family members of the patient. Generally, courts have held that consent of family members with the written approval of two physicians sufficiently protects a patient’s interest.
- Advance consent and proxy consent: While the term advance consent is the consent given by patient in advance, proxy consent indicates consent given by an authorized person.
- Informed consent: It is obtained after explaining all possible risks and side effects to the patient and his family members and is considered superior to all other forms of consent.
Remedies of Medical Negligence:
- Medical Council of India- An aggrieved person can file a complaint against the doctor the State Medical Council specifying all the relevant details of the concerned matter. The council then gives 30 days’ time to the accused to submit his reply. If the reply doesn’t satisfy the council, it can call both the parties along with their evidences to support their respective claims and on the basis of that the council makes its final decision.
- Civil liability under Consumer Forum- An aggrieved person can approach the consumer courts against the doctor for medical negligence and can claim damages. Section 69(1) of the Consumer Protection Act, 2019 lays down the time limit within which a complaint for medical negligence must be filed as 2 years from the date of injury.
- Criminal liability- An aggrieved person can get relief under various provisions of the Indian Penal Code, 1860. According to the IPC, there is a punishment of imprisonment and fine for any person who acts negligently and results in threat to human life. All that the aggrieved person must prove is that the element of ‘mens rea’ i.e., ill intention was present on the part of the medical practitioner.
It is important to note that medical negligence does not always result in injury to the patient. If a doctor does not follow the appropriate medical standard of care in the treatment of a patient, and if the health of the patient is not harmed or not impacted, that negligence won’t lead to a medical malpractice case.
Written by Yaminee Verma @LEXCLIQ