The term medical negligence had two-aspect with it. The first aspect is “Medical” which means providing health treatment to an ill person through a medical practitioner. Whereas negligence come under tortious law. According to Winfield and Jolowicz “Negligence means the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”. Thereafter the Medical Negligence means the breach of a legal duty by the medical practitioner or medical staff which result in damage to the health of the patient. This also article highlights the stands of count in various case on the liability of doctor for any medical negligence’s towards his patient.
The doctors are always presuming to act in good faith for the all-round well-being of his patient. Therefore, the law also protected the doctor from criminal liability through Section 88 to 92 of the Indian Penal Code, 1860 (IPC). The concept of Good Faith has a wider interpretation on the part of the doctor or medical staff in a medical negligence case. The patient or member of his family have all right to take legal action against such malpractice against the doctor or the medical practitioner or the other medical professional involved in such kind of activities and can be sued in court. But it is also a side reality to prove that the injury occurred to the patient as a result of medical negligence in the court of law is very difficult
The essential point of a Medical Negligence includes:
- It is a legal duty of the doctor to exercise due care toward his patient,
- That the doctor by an act of commission or omission breach that duty,
- There shall be a relationship between the breach of duty and the damage suffered to the patient, and
- The patient due to breach of such duty consequential suffers damage or harm.
When a case is a file in court for medical negligence the burden of proof is on the plaintiff (patient or their family member) to show damages that is a result of the alleged negligent care on the part of the defendant (doctor).
Rules and Regulation for Medical Negligence in India
There is no specific statute to define medical negligence in India, as it is in the evolutionary stage. However, the judicial precedence pronounced by the court was used to give compensation to the victims. The supreme court in its several important judgments has tried to define the Medical Negligence law in India. Medical Negligence laws in India is not only covered under the criminal liability of a doctor or other medical practitioner but also civil law as well as the consumer laws in India. Criminal liability has been covered under the various provision of offences in The Indian Penal Code, 1860 dealing with punishments such, as Section 52, 80, 81, 83, 90, 91, 92, 304(A), 337 and 338 relate to the law of medical negligence in India. For the better understanding of this principle through an illustration, is the act of a cardiologist while treating his patient give the overdose of anaesthesia for the operation. However, it results in the death of the patient thus the doctor will be charged with criminal negligence of IPC.
The above provision of IPC says that there is no difference between criminal negligence committed by the doctor toward his patient and ordinary crime committed by a criminal, if such negligent act of doctor or another medical practitioner while treating his patient leads to his death or any injury was proved in the court this will recognize as a case of gross medical negligence.
Winfield and Jolowicz on Tort, Ninth Edition, 1971, p. 45