Medical negligence – A Biggest Sin

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:

  1. The doctor must have responsibility to take care of the patients.
  2. The doctor must committed the negligence which means breach of their duty
  3. 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:

  1. Not giving proper medical advice to patients
  2. Giving improper prescription
  3. 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 52Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention.
            Section 80Nothing 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 81Nothing 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 88Nothing 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 90A 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 304ACausing 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 316Causing Miscarriage
     Section 319 to 322Causing grievous hurt
     Section 336 to 339Act of endangering life or personal safety of others
     Section 345Wrongful 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

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Assam – Mizoram Border Disputes

It is a well-known fact that India has several border disputes with Pakistan, China and even Nepal. Many countries in the world have border disputes with their neighbouring countries. India is made up of several states, which too have inter-state border disputes. Such conflicts have never escalated to a situation that one state issues travel advisory to its rival state despite being in the same country.

Such has happened with Assam and Mizoram locking themselves in a border disputes battle. As with many places worldwide, border disputes come from agreeing to two different border-demarcation lines signed off in two different years. Mizoram officially recognizes the border, which was signed in 1875, while Assam follows the 1933 agreement. While it seems that the latest border should always be followed, Mizoram claims the 1933 border was set without consulting the local tribal chief. In fact, Assam has border disputes with most of its neighbouring states.

Mizoram have allegedly started constructing a road through the disputed border, through the middle of Lailapur Reserved Forest, an ecologically sensitive zone. This irked Assam, and they deployed police in the region to stop the construction work. The situation tensed when police from both sides opened fire at each other. The skirmish resulted in 7 deaths, including that of 6 police officers and 1 civilian, as well as over 70 injuries. Assam police have accused Mizoram police of opening the fire first, after which Assam advised a complete travel blockade of Mizoram.

However, there were several channels open for bilateral talks. Assam and Mizoram both used the communication channels available, and peace talks have resumed between the state ministers. As per the latest decision, both sides have resumed between the state ministers. As per the latest decision, both sides have agreed to keep their neutral forces keeping utmost restraint, Mizoram condemning the killings and Assam withdrawing the Travel Advisory. We hope that peace remains between the two north-eastern states of India and settle their border disputes peacefully through bilateral talks.

Written by – Himadri Paul

MENTAL HEALTH IN THE TIME OF COVID-19

It is time to face the truth: Covid is affecting our mental health. The crisis is having an adverse effect not only on our daily life but also on our mental health. At times, conditions might aggravate, and the individual must seek a physician’s help. This is no time to shy away or to hide one’s worsening conditions under the shield, for that may worsen situations.

Since the onset of the pandemic, which had been warning the world of severe mental crises among patients and their family members, India somehow battled through the rising covid cases and returned to a comparatively safer status in 2020. But the second wave has swept us and somewhat caught us off guard. Each day accounts for more than thousands of active cases and hundreds of deaths throughout the country. The Health sector of the nation, mainly in Delhi, Maharashtra, Madhya Pradesh, and West Bengal, is thoroughly rattled by their inadequacy and dearth of essential equipment and supplies, one of them being Oxygen cylinders. To add to that, the pyres never seem to stop burning. This is a terrible time when uncertainties have encroached on our lives along with the virus.

Every single phone call seems to be ominous and bearer of bad news. It is often observed in senior citizens living in constant fear of being affected by the virus, despite the vaccine doses. The continuous demand and chaos concerning the availability of medical help, medicines, and oxygen cylinders have gotten to their nerves. It is worse for those whose children might have to be quarantined in some other part of the country. Anxiety and panic attack is gripping both young and old minds. We are living through a dark time where the idea of breathing without a mask often accompanies the thought of death. It is often reported how covid patients suffer from depression. This can be a result of witnessing crises and death from a first-hand purview. Observing such devastations and human agony from close quarters can be disastrous to mental health.

Last year’s covid situation has prompted the government to close down schools-colleges until normality restored. Almost a year has passed since the decision and that of online classes. Sitting before a computer/laptop/mobile phone and that too without the plausible interaction with the teacher and physical interactions with friends is gradually becoming tiring. Needless to say, quality learning decreased from what lasted from before. To add to that, students often find it difficult o focus in class for a longer duration. Such strenuous classes often result in pain in the ear or redness in the eye, or headache. As a student, I have often felt I am losing my urge to learn or study. Many of my college-going friends have affirmed this and conjectured at the creative block and intellectual stagnancy.

Covid-19 trauma is challenging to do away with. Yet, this is also true that maintaining or sporting healthy mental status makes it easier for an individual to combat. WHO has recommended deep-breathing, connectivity among friends and relatives, a balanced lifestyle, etc., among many others. There are various psychologists, counsellors, and activists who are reaching out to listen to your worries and anxiety. Trust them and give them a chance. Mental Health is a massive taboo in our country. The time has come to break away from these redundant shackles and seek help when need be. Staying healthy is all that matters right now.

As I look at my burning country and the increasing death counts and active cases, a line from King Lear comes to my mind:

“As flies to wanton boys are we to the gods.”

Written by – By Trina Ganguly

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Marooned Turkey Earthquake: populace search under rubbles

On Friday, 30th October 2020, an earthquake with a magnitude of 7.0 hit Izmir’s city in Turkey. The geological survey (GSI) told the extent to be 6.7. It struck about 11.50 GMT, and that felt along Turkey’s Aegean coast and the northwest of the Marmaria region. The IS Geological Survey said the fathom measured was ten kilometers (six miles); also, the epicenter was 33.5 kilometers (20.8miles) off Turkey’s coast. The people flooded onto the roads, with no clue of what was happening. Moreover,the earthquake has plateaued the buildings, evident through the mounds of debris lying everywhere. For instance, People were digging the remains to rescue the trapped.

The destroy earthquake created at Izmir’s city in Turkey.

The smoke emanated into the high sky in several areas. The quake lasted for twenty-five seconds, creating a mini tsunami. Moreover, the water started to rush through the streets of Izmir, which discerned to be the result of an apparent sea-surge. The city is the third-largest in Turkey with a population of 4.5 million, which hosted a line of multi-storeyed buildings. I entirely and earthquake destroyed twenty of such structures. The earthquake hit others, as per the source. The streets also witnessed a lavish spread of debris, including refrigerators, chairs, tables, etc. Cars were gliding by the flow of water and piled up at the end of the streets. The casualties amounted to 32 and more than 17000 people and injured 800  in the earthquake.

although the quake jolted Turkey and Greece, the most damaged was Turkey. In the world, the country stands as one of the most earthquake-prone countries. In August 1999 earthquake which hit with 7.6 in the Turkish city Izmit, a city southeast of Istanbul. At loggerheads, Turkey and Greece’s foreign ministers now vowed to help each other in rescue efforts. The things boiled between was a dispute over Eastern Mediterranean energy rights. Compared to Turkey, Greece saw much slighter effects. A building collapsed on two youngsters immediately, killing them. In the eastern Greek islands and even in the capital, Athens. People in Greece also got orders to stay away from the coast. There were quite a few damaged buildings and few landslides on different parts of the island.

https://www.ndtv.com/world-news/earthquake-death-count-rises-to-49-in-turkey-2318927

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INDIA IS COMBATING WITH LOCUST SWARMS AMID COVID19

Before the inception of 2020 could anybody imagine that the year will grow worse day by day?

The whole world has been put up the shutters due to coronavirus pandemic. The financial system has been crippled for no fixed time. Cyclone named Amphan already tore the major portion of the West Bengal. Amid all these tragedies, the emergence of locust swarms from India- Pakistan border is a new addition to make 2020 a bit more challenging.

Locust is an insect that destroys crops and foliage even within hours and leaving in its wake a trail of devastation and misery.

After three decades locust swarms reappeared which became a great threat to farmers in North India mainly. Rajasthan has drastically been affected by desert locusts. Bihar, Haryana, Madhya Pradesh, Gujarat, Uttar Pradesh were also affected badly by the same. The experts believe that these desert locusts would not only hurt farmlands and crops in North India but also Delhi could lose a lot of greenery if they would not control the pests.

 Till now more than 1,40,000 acres of cotton, summer pulses, vegetable crops have been totally destroyed by the locusts. This attack already affected 90,000 hectares across 20 districts in Rajasthan. Locust are moving towards the wind and scattering everywhere in the sky of the Pink city. Nothing can be heard except the humming of locusts.

“No significant crop losses have been reported in Haryana, Gujarat, Bihar, Madhya Pradesh, Chhattisgarh, and Uttar Pradesh. However, some minor crop losses have been reported in some districts of Rajasthan,” the ministry said.

Food and Agricultural Organization (FAO) has warned amid the countries facing the worst locust attack in last 26 years. These swarms will return to Rajasthan to join other new swarms still coming from Pakistan and Iran, which is expected to be supplemented by the swarms from Africa in about mid-July, FAO said.

The government has been active enough to control the detrimental rush. 60 control teams with spray vehicles are distributed in Rajasthan, Madhya Pradesh, Gujarat and Uttar Pradesh. Over 200 central government personnel are working to manage the operation. The pesticide campaign has been arranged by the government. Farmers who depend on year-round yields from the green field are using smoke and producing noise to prevent locusts attack.

India is the first country which is using drones for pest management, the ministry claimed. 15 virtual meetings have already taken place on desert locust of South West Asian countries like Iran, India, Pakistan.

 It can be assumed that it may take days for everything to get back to normal. But the question is how and when? When will India walk under the blue sky again? When will the people be able to roam around like before? The entire world is looking forward to that good time.

                                                                                          Saswati Chattopadhyay