In this period, deaths and injuries caused by medical negligence is commonly seen. When Medical practitioners or doctors or nurses failed to take care of patients it result in deaths or injuries. So, here in this article we talks about types of medical negligence and how to claim compensation and what are the procedures for complaint. We also discuss about relevant case laws and legislative measures in this article.
“Medical negligence is an unpardonable sin” in this world all humans are making mistakes, no one is perfect here. It includes doctors also who are equal to god who are saving our lives. It is also a noble profession. In this era, there are more medical negligence cases is being increased because of unprofessional medical practitioners. In this article we are going to discuss about this issues.
Medical negligence is done by Doctors or Medical practitioners for not providing enough medical advice or enough care which results to breach of their duty such as death or medical injuries. In recent years there are many cases filed in India due to medical negligence. “To err is human” is the common thing which faced by all humans so the doctors are no exception to this.
TYPES OF MEDICAL NEGLIGENCE:
- Misdiagnosis
- Surgical error
- Wrong site surgery
- Unnecessary surgery
- Delayed diagnosis
- Errors in anesthesia
- Labor malpractice
- Negligent in c- section
- Prescription errors
- Negligent in medical advice
- Pregnancy and birth injuries
- Dental negligence
- Negligence in skin treatment
ESSENTIALS:
- The doctor must have responsibility to take care of the patients.
- The doctor must committed the negligence which means breach of their duty
- The patient must suffered damages due to the negligence done by medical practitioner.
In the case of Dr. Laxman Balkrishna Joshi V. Dr. Trimbark Babu Godbole & Anr[1], it held that when a patient consult to doctor, the doctor owes certain duties such as duty of care.
EXAMPLES:
- Not giving proper medical advice to patients
- Giving improper prescription
- Leaving an object during surgery such as bondage, scissors, cotton, and so on.
BURDEN OF PROOF:
The burden of proof laid upon on the complainant. It is the essential one of the medical negligence. In the case of Calcutta medical research institute V. Bimalesh chatterjee[2], it was held that onus of proofs against negligence of medical practitioners is completely depend upon complainant only.
The law requires higher standard of evidence to prove the negligence against a doctor. In Kanhaiya kumar singh V. Park medicare & research centre[3], it was held that negligence has to established not to presumed.
PROVISIONS:
FUNDAMENTAL RIGHTS:
- ARTICLE 21 – Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
- ARTICLE 32 – Right to constitutional remedies
It has right to go for Supreme court by appropriate proceedings for the enforcement of rights.
CRIMINAL LAW:
Code of criminal procedure amendment 1973 (C.C.P)
When it is proved that the negligent act is performed with Men Rea (guilty mind) he shall be punished under C.C.P Amendment 1973. The intention to behave in such negligent way shall be proved to make a doctor liable under criminal law.
INDIAN PENAL CODE:
| Section 52 | Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention. |
| Section 80 | Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. |
| Section 81 | Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person and property. |
| Section 88 | Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied to suffer that harm, or to take the risk of that harm. |
| Section 90 | A Consent is not such a consent as is intended by any section of this code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequene of such fear or misconception. |
| Section 304A | Causing death by negligence- whoever causes the death of any person by doing of any person by doing rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both. |
| Section 312 to 316 | Causing Miscarriage |
| Section 319 to 322 | Causing grievous hurt |
| Section 336 to 339 | Act of endangering life or personal safety of others |
| Section 345 | Wrongful confinement |
OTHER LAWS:
- Consumer Protection Act, 1986
Victims can claim damages for medical negligence against a doctor or Medical Practitioners. Section 69 (1) of the Consumer Protection Act, 2019 laid down that complaint must be filed within 2 years from the date of an incident.
- Indian Medical Council Act, 1956
Any person who has incurred damages due to the act of any doctor’s negligence can file a complaint with respective council. In the last few years the Indian Medical Council has started taking severe steps for improvement in standard medical practice and medical ethics. However, the council only has power to punish the doctor and cancel their registration for their negligent behaviour but does not have the power to provide compensation for the victim of such misconduct.
RELEVANT CASE LAWS:
CHANDIGARH CLINICAL LABORATORY V. JAGJEET KAUR[4]
The National consumer disputes redressal commission upheld the findings of the district and state commission and further held that the appellant had “duty of care” to give accurate findings to the patient and the failure of the appellant to take due care shall amount to medical negligence.
JAGADISH RAM V. STATE OF H.P[5]
It was held that before performing any surgery the chart revealing information about the amount of anesthesia ad allergies of the patient should be mentioned so that an anesthetic can provide sample amount of medicines to the patient. The doctor in above case failed to do so as a result of the overdose of anesthesia the patient died and the doctor was held liable for the same.
GIAN CHAND V. VINOD KUMAR SHARMA[6]
It was held that shifting of the patient from one ward to another inspite of requirement of instant treatment to be given to the patient resulting in damage to the patient’s health then the doctor or administrator of the hospital shall be held liable under negligence.
MR.M.RAMESH REDDY V. STATE OF ANDHRA PRADESH[7]
The hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death.
JAGDISH PRASAD SINGH V. DR.A.K. CHATTERJEE[8]
The state consumer disputes Redressal commission of Jharkhand had observed that the accused had failed to take due care to return the precise findings in the reports. Whether harm came to the patient or not would not be the criteria for case against negligence.
HOW CAN COMPLAINT:
Victims can complaint against doctors when it completes the essentials of medical negligence. A Complaint can be filed in State Medical Council or in State Consumer Courts or in Criminal Courts. If our aim is to achieve monetary compensation then we can approach Consumer Courts. The Consumer Courts can cancel the license of doctors in some cases.
REMEDIES AVAILABLE TO PATIENTS:
- MEDICAL COUNCIL OF INDIA:
Any aggrieved person can claim damages due to negligence of doctors which cause death or injury with respective council. Here the council have powers to punish the doctors and to cancel their registration. It has no power to compensate the victims for such negligent behaviour.
- CIVIL LIABILITY:
Victim can file a complaint before a civil court or can complaint before the consumer Forum under consumer protection act,1986 against doctors who committed negligence by this we can claim damages in the form of compensation.
- CRIMINAL LIABILITY:
We can approach criminal court when only it arises death or serious injury which causes to life long term due to medical negligence under section 304-A of Indian Penal Code, 1860 by claiming relief for the negligence.
Patients completely believe the doctors who save the people lives. Medical practitioners have to deal with them carefully even they attain some mistakes in some cases. Medical tools such as scissors, Knife should be should be handled correctly.If any mistakes occur it suffers the patients life as well as their in long term. Indian Laws have to be reform in more ways.
[1]Dr. Laxman Balkrishna Joshi V. Dr. Trimbark Babu Godbole & Anr , AIR 1969 SC 128
[2]Calcutta Medical Research Institute V. Bimalesh Chatterjee , Appeal No. 388 of 1994
[3]Kanhaiya Kumar Singh V. Park Medicare & Research centre , 1999 CPJ 9
[4] Chandigarh clinical laboratory V. Jagjeet kaur ,30 August 2007
[5]Jagadish Ram V. State of H.P ,AIR 2007
[6]Gian Chand V. Vinod Kumar Sharma , AIR 2007
[7]Mr.M. Ramesh Reddy V. State of Andhra Pradesh ,2003 (1) CLD 81 (AP SCDRC)
[8]Jagadish Prasad singh V. Dr.A.K.Chatterjee , 23 October, 2008
Written By – Sushmitra Dahal