Medical Negligence In India Lawyers in Chanidgarh Mohali Panchkula

Medical negligence can be both civil and criminal in nature; it is a breach of due care. In case of civil medical negligence, the suit may be initiated under the Consumer Protection Act or by filing a suit in a civil court of law. However, in case of criminal medical negligence. Medical Negligence Lawyers in Chandigarh Mohali Panchkula

There is a Section in the Indian Penal Code:

Section 304A states that whoever causes the death of an individual by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both, this provision includes some cases of medical negligence in India.

In the case of State of Haryana and Ors. vs. Santra: MANU/SC/0295/2000, the Apex Court held that liability in civil law depends on the amount of damages incurred by the victim, but in case of criminal law, the degree of negligence determines the nature of liability. However, some pointers are essential to determine criminal liability in a case, they are, the motive and magnitude of the offence committees and the character of the offender.

In the leading case of Kusum Sharma &Ors. Vs. Batra Hospital & Medical Research Center and Ors.MANU/SC/0098/2010 , the court held that: Medical Negligence Lawyers in Chandigarh Mohali Panchkula

“Deficiency in medical service” is the duty owed to a 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:

• a duty of care in deciding whether to undertake the case
• a duty of care in deciding what treatment to give
• a duty of care in his administration of that treatment

The tests reiterated by Apex Court in this case are as follows:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Medical Negligence Lawyers in Chandigarh Mohali Panchkula
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. Medical Negligence Lawyers in Chandigarh Mohali Panchkula
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. Medical Negligence Lawyers in Chandigarh Mohali Panchkula
4. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field. Medical Negligence Lawyers in Chandigarh Mohali Panchku Medical Negligence Lawyers in Chandigarh Mohali Panchkulala
5. In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. Medical Negligence Lawyers in Chandigarh Mohali Panchkula
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. Medical Negligence Lawyers in Chandigarh Mohali Panchkula Medical Negligence Lawyers in Chandigarh Mohali Panchkula
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor choses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. Medical Negligence Lawyers in Chandigarh Mohali Panchkula
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. Medical Negligence Lawyers in Chandigarh Mohali Panchkula Medical Negligence Lawyers in Chandigarh Mohali Panchkula
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. Medical Negligence Lawyers in Chandigarh Mohali Panchkula Medical Negligence Lawyers in Chandigarh Mohali Panchkula
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. Medical Negligence Lawyers in Chandigarh Mohali PanchkulaMedical Negligence Lawyers in Chandigarh Mohali Panchkula
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

The parameters of asserting the reasonable skill of a professional is obscure and the there is no straight jacket formula to determine the negligence committed by any medical professional.

For example: in a case of a wrong diagnosis a medical professional can be often saved from being punished for negligence since there are no evidences to prove the medical negligence committed by skilled medical professional

The essentials of medical negligence are: Medical Negligence Lawyers in Chandigarh Mohali Panchkula

1. Existence of legal duty: whenever a person approaches another trusting him to possess certain skill, or special knowledge on a given problem the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. So, it is not that the legal duty can only be contractual and not otherwise. Failure on the part of such a person to do something which was incumbent so, that which would be just and reasonable tantamount to negligence. Every time a patient visits a doctor for his ailments, he does not enter into any written contract but there is a contract by implication and any lack of proper care can make the erring doctor liable for breach of professional duty.
2. Breach of legal duty:there is a certainly a breach of legal duty if the person exercising the skill does something which an ordinary man would not have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of very high degree or otherwise, but just the relative kind, that is expected from man in the ordinary course of treatment.
3. Damages caused by the breach: the wrong, the injury occasioned by such negligence is liable to be compensated I n terms of money and the courts apply the well settled principles for determination of the exact liquidated amount. We must remember that no hard and fast rule can be laid down for universal application. While awarding compensation, the consumer forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles on moderation. It is for the consumer forum to decide whether the compensation awarded is reasonable, fair and proper according to the facts and circumstances of the case.

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How To Claim Damages In Case Of Medical Negligence?

1. Compensation: In Indian the concept of awarding compensation is the most usual form of providing a remedy to the injured party. Basically, the concept behind providing compensation is not punishment the guilty but providing help to the injured party to at least partially recover the loss that he has suffered due to the negligent act of a doctor. In India the amount of compensation can start from a few thousands a can increase up to a value in lacs, whereas in the English law the compensation amount goes in millions as their standards is more and their law is stricter. The compensation awarded need not be always put on the doctor committing the mistake but it can also be put on the hospital under the principle of vicarious liability wherein the doctor is the employee of the hospital and thus as the relationship becomes that of an employer-employee, the plaintiff has also the right to claim damages from the hospital who employed him, in cases where the defendants is not in the position of paying the compensation amount.
2. Imprisonment: this is provided by the courts when a criminal suit is filed in the court by the plaintiff. The period of imprisonment changes with the circumstances of the cases and is decided by the courts. Even though the whole section of medical negligence comes under civil liability, in some cases the negligent act committed is so grievous that the injured party is not interested in compensation as it won’t make a difference to them and they believe that the doctor who committed the act must be punished severely. The idea behind the concept of imprisonment is not only to punish the wrongdoer but also to bring a change in him and bring order in the society, so that such acts are not committed so carelessly and proper and necessary precautions are taken by the doctors before diagnosing, treating or performing an operation on the patient.
3. Both compensation and imprisonment: in certain cases, it is possible that the courts award compensation to the injured party and also punish the wrongdoer for his acts. This is sometimes rare and sometimes quite frequently used by the courts. The remedy provided completely depends on the facts of the case and the plea of the plaintiff.

Defenses Of Medical Negligence Medical Negligence Lawyers in Chandigarh Mohali Panchkula

The defences available for the accused in case of medical negligence are as follows:

1. To protect oneself from criminal liability: the doctor can take protection under Sections 87-93 of the Indian penal code. These sections deal with hurt caused by the doctor or any medical practitioner when a consent is given either by the party who wishes to be treated or the legal heirs of the party.

For example: Section 89 says where the parents give a consent in place of their children who are unable to judge what is right for them and what is not right for them. Therefore, when the injured party gives consent for a particular treatment or operation then the doctor or the hospital cannot be held liable.

2. The injured party got himself treated in a government hospital and paid only nominal charges for registration: In this case the hospital cannot be held liable as under the consumer protection act when the patient does not pay for the service provided by the hospital, he is not considered to be a consumer and therefore the duty of safeguarding the patient as such does not lie on the hospital.
3. Remoteness of damages: This means that when the damages cause is too remote and was not caused as an immediate result of the doctor’s negligence.

For example: if person is treated by a doctor who performs cosmetic surgery but during one of the operations the person gets a scar on her face and later the plaintiff asks for compensation as because of the scar on her face she couldn’t get married and also lost her job. The court can award damages for the scar on her face if it was due to the negligent act of the surgeon but not for the personal injuries that she is facing

4. If the defendant can prove in the court that the damage suffered by the plaintiff was the violation of a qualified right and that no special injury was caused by the defendant’s acts to the plaintiff: then the court may exempt the defendant from paying the damages to the plaintiff.

In the case of Laxman Balkrishna Joshi v. Dr.Trimbak Bapu Godbole, 1969 AIR 128, A young man aged 20, met with an accident on the sea beach in a village far away from the city of Pune, which resulted in the fracture of the femur of his left leg. After some temporary treatment by a local doctor who tied wooden planks to his leg, he was brought to the respondent’s hospital for treatment. The respondent had given specific instructions to his assistant to give 2 proper injection doses of injection of morphia before bringing the patient to the operation theater. But the assistant gave the patient only one injection. The young boy died as the result of shock suffered for not having given the adequate amount of anesthesia.

The lower court and the high court held that the respondent was liable for the death of the young boy and a compensation of Rs.3000 was awarded to the plaintiffs. The Supreme Court also agreed with the judgments of the lower court and stated that this was a clear case of medical negligence and the respondent is liable to pay damages to the family of the young boy and there was a clear breach of his legal duty of taking the necessary precautions before performing an operation.

In the leading case of Kunal Saha v. AMRI (Advanced Medical Research Institute) III (2006) CPJ 142 NC; popularly known as Anuradha Saha case: here medical negligence was alleged by 3 doctors of AMRI hospital; Dr. Sukumar Mukherjee, Dr.Baidyanath Haldar, and Dr. Balram Prasad as well as AMRI hospital. There was a drug allergy from which Mrs. Saha was suffering and these three doctors prescribed such medicine which further aggravated the condition of the woman which led to her death. The Apex Court (Supreme Court) gave the final verdict of the case in the year 2013 and also compensated the victim with 6.08 crore. This particular case expanded the scope of medical negligence in India and took it to a whole new level.

In the case of Shakoor v. Situ, 4 All ER 181, a patient died of idiosyncratic liver reaction after taking nine doses of a traditional Chinese remedy prescribed by an herbal medicinally. The skin condition from which the patient had been suffering could only be treated by surgery in orthodox medicine. His widow sued for negligence. The court held that an alternative medical practitioner could not be judged by the standard of orthodox medicine because he did not hold himself out as professing that ‘art’; rather, he would be judged by the prevailing standard in his own ‘art’ subject to the caveat that it would be that it would be negligence if it could be shown that that standard itself was regarded as deficient in the UK having regard to the inherent risks involved. In the event, the negligence action failed because the court held that the practitioner had acted in accordance with the standard of care appropriate to the traditional Chinese medicine as properly practiced in accordance with the standards required in the UK.

In the case of Sishir Ranjan Saha v. State of Tripura,  AIR 2002 Gau 102, the victim of the road accident was brought to a hospital. He needed major surgery. The specialist doctor was not available as he was busy attending to the other patients and did not respond to the call of emergency. The victim filed a suit in the court claiming compensation. The court held that the doctor was liable for not attending the emergency patient in time especially after claiming to provide emergency services. It ordered the defendant to pay a compensation of Rs.1,25,000. It also ordered the hospital to improve its quality of service.

In the case of Cassidy v. Ministry of Health[1951] 2 KB 343, the plaintiff went to the doctor to cure his two stiff fingers. When the doctor operated him and when he was brought out it was seen that his two fingers were not cured but instead his two other fingers also became stiff. Due it this he almost couldn’t use his full hand. Hence the plaintiff filed a petition in the court asking for compensation. The court held that the act committed by the doctor was so negligent that the plaintiff need not even prove that how the act was committed negligence. It said that this case was the classic example of res ipsa loquitor and the defendant was made liable for the wrongs committed negligently by him.

The Vicarious Liability Of Hospitals

The principle of vicarious liability is based on a latin maxim “qui facit per aliumfacit per se” which describes that the one who acts through another act in his or her own interest. The patient only requires diligent and proper care, if any of the staff of the hospital is negligent in the performance of their prescribed work, the hospital will be held liable on the negligent conduct of even borrowed doctors for specific performance of certain operations as in the case of Aparna Dutt .V. Apollo Hospital Enterprises Ltd.; 2002 ACJ   954 (Mad. HC).

Conclusion

Therefore, we can see that the cases of medical negligence in India are not the same as occupational negligence. Simple lack of proof or error of judgment will not amount to professional negligence.In India almost every day there is a case of medical negligence which is seen. It is seen in the big as well as in the small hospitals, clinics, dispensaries etc. The most common type of medical negligence is seen in operations and during the delivery of the child etc. a number o cases has been filed against doctors who negligently leave their surgical instruments in the body of the patient etc, still a number of doctors leave their instruments in the stomach of the patient which could be fatal. In India doctors are treated as gods, hence when some kind of negligent acts are carried out by them, they think that it was the wish of god and don’t make the doctor responsible for this. Illiteracy is another big factor that is not letting our people to know what kinds of wrongs are being committed in our country.

Author: This article was written by Richaa Mukhopadhyay, B.A. LLB(Hons), CS(executive), ALSK, ICSI, student of Amity Law School, Amity University, Kolkata.

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