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Subhra Dan
Adamas University, Kolkata
ABSTRACT
Hundreds of cases are reported daily in almost all police stations in India centring on multiple issues. Among them, professional negligence is at the top level. Professional negligence is associated with professionals like lawyers, physicians and some other professionals whose efficiency is an essential one for all humankind. Medical negligence is an existing problem in the medico-legal field which has received a lot of attention in recent years. The penal charters as well as the civil laws of the land have carefully addressed the laws, penalties and consequences of medical negligence. This article provides a kaleidoscopic view of medical negligence, laws to combat carelessness in the health care delivery system, and its impact in contemporary India.
KEY WORDS: Negligence, Medical practitioner, Carelessness, Duty, Breach, Patient, legislation
INTRODUCTION
After the Consumer Protection Act became operational, a particular type of complaint came into the limelight, which wobbled the justice delivery system of India. The emerging concern is nothing but ‘medical negligence’. In ancient Indian texts, doctors were considered equivalent to Lord Vishnu (Vaidya Narayana Harihi), but today, ample amounts of litigation are traced against the doctor, underlining the issues of negligence and lack of care. The concept of carelessness in the medical profession curtails its dependability. According to BLACK’s law dictionary, negligence is defined as a failure to exercise the standard of alertness that an ordinary man with reasonable prudence would have exercised in the same sort of situation. Negligence is a mere infringement of any duty or obligation that a man with normal prudence would have performed or exercised in that particular situation. Therefore, as per definition, there are mainly three constitutes of negligence: ‘duty’, ‘breach’, and ‘legal damage to the plaintiff’. In the law of negligence, the word ‘professional’ includes persons specialized in law, medicine, art, architecture and others. Persons who are certified as professionals are expected to possess the requisite skills for performing the task in which they are specialized. On the same analogy, this assures the patient and his associates that the medical practitioner possesses all the knowledge and skills along with reasonable competence. So, a medical practitioner can be held liable for carelessness for either the absence of requisite care or the absence of required skills that he is supposed to possess.
STANCE OF CIVIL LEGISLATION
Under the shape of civil law, carelessness by a medical practitioner is considered a tortious act of negligence. There is a ‘duty of care and responsibility’ of the doctor towards his patients and any kind of breach or infringement of the legal rights of the patient by the doctor can amount to tortious liability. In the year 2005, the Hon’ble Delhi High Court calibrated the degree of negligence in civil law and came up with a certain categorization:
Lata culpa or gross negligence
Levis culpa or ordinary negligence
Levissimma culpa or slight negligence
The sanctions or penalties differ according to the level of negligence, i.e. for ordinary and slight negligence, as the names suggest, the level of laxity is so minimal that they hardly attract any sort of sanctions.
The Hon’ble Apex Court of India, in one of its judgment, held that every medical practitioner must exercise a reasonable extent of care, and they may be held liable for their malpractice either individually or vicariously unless they come up with certain exceptions that are fixed by the hon’ble court. In another landmark judgements of the Hon’ble Supreme Court, it was stated that if a doctor has adopted a certain treatment for a patient and the treatment is declared as reasonable by a set of medical personnel, then the doctor won’t be liable for any damage faced by the patient due to the treatment. It is stated that doctors must practice to an ordinary degree of proficiency, but they cannot provide a certain warranty of cure to the patients. There are certain cases in which there is a clear view of negligence. In legal parlance, it is termed ‘res ispa liquatur’ or ‘the thing speaks for itself’. This maxim comes in argument when there is proof beyond any reasonable doubt that the happening was impossible without the negligence of the defendant. In the case of ‘Dr. Janak Kantimathi Nathan v. Murlidhar Eknath Masane’, the National Consumer Dispute Reparation Commission, applied this principle of res ispa liquatur, stating that the negligence was nothing but an output of the carelessness of the doctor. The Hon’ble Supreme Court submitted in one of its judgments that every physician should act according to a reasonable degree of care along with certain skills. Doctors are no different from any other human beings, so they can be excused for laxity up to a certain extent. But, any sort of carelessness that a medical practitioner with unequivocal skill and reasonable prudence is not supposed to exercise, can amount to ‘negligence’.
STANCE OF CRIMINAL CHARTERS
Negligence is considered an offense under both civil and criminal laws. Then what is the cardinal difference between these two? The acknowledgment of the interrogation was held by the Hon’ble Supreme Court in the case of ‘State of Haryana v. Smt. Santra’[1]It was held that the civil liability is based on the span of damages suffered by the patients, whereas in the case of criminal liability, the degree of negligence by the defendant is the prime factor along with the mental element termed mens rea. The amended penal charter of India, i.e., the Bhartiya Naya Samhita [2], has integrated the penalties for death due to negligence or any sort of careless activity in section 161 [3] of the same. This section deciphers that if any ‘registered medical practitioner [4] causes a negligent death to any patient, then the practitioner would be subjected to penalties for a maximum tenure of two years of imprisonment along with a recompense as per the verdicts of the Hon’ble court.
The primeval penal charter of India [5] enshrines sections like sections 304 A, 337, and 338, which decipher the penalties for rash or negligent practices. The Hon’ble Apex Court held the difference between negligence, recklessness, and rashness in one of its landmark cases [6]. According to the court, a person is to be justified as negligent when that individual has exercised any act unintentionally that is a mere infringement of his legal duty. Notwithstanding reasonable foresightedness, when a person exercises any act without due care, then he qualifies to be certified as a reckless one. Any conduct falling short of recklessness or any calculated mischief should not be the subject of criminal liability.
WHAT AMOUNTS TO NEGLIGENCE?
Medical negligence is a mere violation of the duty of care from the side of a doctor that causes severe damages along with legal injury to his patients. The most common variants of negligence caused by medical practitioners include incorrect medicine doses, surgical errors, contaminated hospital environments, infections due to unsterilized operation theatres, false medical report publications, mistreatment, false diagnoses, and so on. The duties and obligations of a physician are enshrined in the Code of Medical Ethics Regulation (2002) under the Indian Medical Council Act [7]. According to the regulations, there are several aspects like prognosis, patience, delicacy, and secrecy, along with proper care, which are to be maintained by a doctor while dealing with his patients. Besides these, any kind of act of misconduct, including any sort of abuse of professional position or dignity, violation and infringement of legal rights of the patients, and not obtaining the consent of the patient before any surgery or treatment.
LANDMARK VERDICTS ON MEDICAL NEGLIGENCE
In the last few years, the Hon’ble High Courts and the Apex Court of India have dealt with numerous cases that were mainly based on negligence of either any medical professional or any health care centre. In the year 1989, the Supreme Court dealt with the case of ‘A.S. MUP [8], al v. State of UP’ where it was traced that irreparable damage was done to the eyes of several patients who were operated on in an eye camp organized by the Uttar Pradesh Government. Along with this, many people lost their vision forever. The Hon’ble court awarded compensation of rupees twelve thousand five hundred to the victims. The court held the state vicariously liable for the negligence of the doctors. The carelessness exercised by the doctors was unexpected for a professional person with normal prudence. It was one of the notable cases in which the court had treated ‘medical negligence’ with reasonable care. Is it justified if a patient is informed that her operation is up to the mark, but after a few years, she comes to know that the operation was an unsuccessful one? The answer to the aforesaid interrogation is ‘no.’ There was a case reported where the court upheld the decree awarding remunerations to the patient for medical negligence on account of the lady having given birth to a child due to the failure of the sterilization process. It was found that the surgeon operated only on the right fallopian tube, but the tubectomy was not performed on the left fallopian tube. In the end, the patient was informed that the operation was a successful one. She was assured that no further pregnancy was possible. This case was solely based on carelessness on the side of the doctor and was considered a case of medical negligence [9].
The concept and severity of ‘gross medical negligence’ was prioritized in the case of Spring ‘Meadows Hospital Anr’ [10]. v. Harjol Ahluwalia & Anr’[10]The apex court of India deciphered that gross medical negligence will always result in a finding of negligence. During anesthesia, the use of the wrong gas or wrong drug will frequently lead to the imposition of liability, and in some cases, even the principle of res ipsa loquitur can also be applied. A senior physician could be negligent when he entrusts his responsibility to his inexperienced junior fellows with absolutely no or limited knowledge.
In one of the most recent judgments, the Supreme Court has established certain principles relating to medical negligence. Justice Dalveer Bhandari took the initiative to scrutinize the cases of negligence in the medical profession in India as well as from abroad (especially the U.S.A.) [ case of ‘Kusum Sharma v. Batra hospital’] in which almost eleven principles were framed by the Supreme Court to come up with the judgments in the cases related to professional negligence.
Followings are to be considered
i. Negligence is to be defined as a breach of such a duty that a man of ordinary prudence would perform or a commission of a certain act that a reasonably prudent man would not perform.
ii. Negligence, the most essential constituent, should be proved by the plaintiff, and the carelessness should not be gross.
iii. A medical professional is expected to provide a certain degree of care along with skill and proper knowledge. Neither the very highest nor the very lowest degree of competence is judged in the light of the particular circumstances of each case as what the law requires.
iv. A physician or any other medical personnel would be held liable only when it is traced that the degree of care provided by him is more knee-high than what is to be provided in the actual sense.
v. There can be a conflict of opinion among the doctors regarding the treatment of a certain disease but that does not specify any of them as negligent to the patient.
vi. Adopting a treatment procedure by observing the gravity of illness which is risky but can emit a fruitful result to the patient does not amount to negligence.
vii. Merely because the doctor preferably chose one course of treatment over another, he would not be held liable if the treatment process chosen by him is acceptable to other professionals of medical science.
viii. It would not be conducive to the proficiency of the medical profession if no physician could administer drugs without a halter around the neck.
ix. Society must check the unnecessary harassment and humiliation of doctors so that they can carry out their profession with absolutely no fear and apprehension.
x. Physicians, along with hospitals and nursing homes are to be saved from malicious prosecution and illegal compensations through several illegal processes.
xi. The interest and welfare of the patients are to be dealt with the utmost care and adeptness by the medical professionals.
The aforesaid basic doctrines solely reflect the judicial intervention in regulating negligence in medical practice. The precedent of the Hon’ble Supreme Court is binding throughout the land of the nation, along with the high courts and their lower courts in the country, by Article 141 of the Constitution of India. Hence, the principles by Dalveer Bhandari J. are considered the law of the land on medical negligence [12].
EPILOGUE
Throughout the world, the profession of a doctor is highly respected and trusted by all the people in every society. But carelessness while practicing such a noble profession is the worst type of professional negligence. Cases of medical negligence are reported daily, and this sort of negligence causes mental agony, discomfort, and critical physical and psychological abnormalities, along with sometimes life risks to the patients. There are ample numbers of judgments of the Hon’ble Supreme Court and Hon’ble High Courts where several guidelines to detect medical negligence have been adopted. The patient-centric initiative of rights protection is required to be encouraged because the right to proper medical care, along with the right to lead a healthy life, are the two fundamental rights that are deciphered by the Constitution of India. In the afore-discussed cases, the apex court fetched the issue of medical remissness into the limelight several times and has adopted appreciable initiatives to address the laxity and promote patient safety. In a nutshell, addressing medical negligence is an epoch-making process to restore trust between the patient and the health care provider, along with presuming paramount importance to patient safety through the collaborative operation of health care providers, policymakers, and legal professionals.
References
[1] AIR 2000 SC 3335.
[2] Bhartiya Naya Samhita, No. 45, Acts of Parliament, 2023 (India).
[3] Bhartiya Naya Samhita, § 161(1), No. 45, Acts of Parliament, 2023 (India).
[4] The National Medical Commission Act, §2, No.12, Acts of Parliament, 2019 (India).
[5] Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
[6] Poonam Verma v. Aswin Patel, 1996 SCC (4) 332.
[7] Indian Medical Council Act, 1956, No. 102, Acts of Parliament, 1956 (India).
[8] A.S. Mittal v. State of UP, AIR 1989 SC 1570.
[9] State of Haryana v. Santra, AIR 2000 SC 3335.
[10] Meadows Hospital & Anr. v. Harjol Ahluwalia & Anr, (1998) 4 SCC 39.
[11] Kusum Sharma v. Batra Hospital (2010) 3 SCC 2111.
[12] Dr. Ishita Chatterjee, Health Law 165 (Central Law Publications, Allahabad 2019).
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