Next to creating a life, the finest thing a man can do is save one.- Abraham Lincoln

It is an undeniable fact that medical profession is a noble profession as it deals with human life which is given the highest importance among anything present on earth. It is the utmost responsibility of the medical practitioner to ensure their patients safety while treating them. However it should also be noted that To Err Is Human it is natural for human beings to make mistakes and doctors are no exception to it.

Not every time but in some crucial circumstances there is a possibility of making mistake. It is important for doctors to perform their duty with expertise skill and caution when there is failure in performing the duty it amounts to medical negligence. It is not good for them to handle their patients without proper technical training and specialization.

In the recent times the cases on medical negligence is being increased, whatever may be the reason but the ultimate sufferers are the innocent public who consult doctors with a firm belief of finding a cure to their health problems and it was found important to establish laws on medical negligence to provide with a relief to claim damages occurred to the patient and also punishments for the professionals negligent behaviour.

This article provides with the detailed explanation on the legal resource or legal remedies that is available against medical negligence. Various laws available under which the affected patient or the party related to the affected patient are as follows:

1. Consumer Protection Act 1986
2. Criminal law
3. Other Laws

To whom it is Applicable?
Persons to whom the above acts applicable are:

1. To all the Medical Practitioners
2. All private or trust hospitals, nursing homes and polyclinics
3. The Government hospitals and doctors
4. All laboratories, blood banks and x-ray clinics
5. The nurses and paramedical staff
6. Medical stores
7. Pharmaceutical company
8. Quacks jointly and severally.
9. The aggrieved patient
10. Legal heirs or legal Representative.
11. State and Central government

Examples Of Medical Negligence:

There are some errors that are more frequently reported than others. The five most common examples of medical negligence cases are:

1. Misdiagnosis

   The most common example of medical negligence is misdiagnosis or delayed diagnosis or failure to diagnose. Perhaps due to a loss of focus, incompetence, or unavailability of the right tools, some medical practitioners diagnose their patients wrongly, thereby hindering them from getting the right treatment they need for their condition. Failing to diagnose a patient correctly can prolong an ailment, cost the patient more money, and even cause a permanent injury to the person.
   
   

2. Improper or wrong medication

   Prescribing incorrect medication is one of the common cases of medical negligence reported. This may happen when a doctor write an incorrect dosage for a patient or prescribing of wrong drug for the patient's illness or receives the medication of another patient.
   
   

3. Anesthesia Administration:

   Anesthesiologists Not only do they provide pain relief for the patients, they also have control over the patient's life functions, including breathing, body temperature, blood pressure, and heart rate. Anesthesiologists are responsible for the safe delivery of anesthesia to the patients. They are responsible for pre-operative evaluation, consulting with the surgical staff and post-operative management of the patients. Anesthesia mistakes happen with major operations as well as with common elective procedures. An anesthesia error can cause severe permanent brain damage or death to a patient. Anesthesia errors happen every day in hospitals, doctor's offices, and surgical centres. Anesthetists and Anesthesiologists play a vital role in surgeries.
   
   

4. Surgical Error

   Negligence during surgery is the most common case of medical negligence. Surgical errors may occur due to various reasons it includes improper preparation, Lack of skills, Taking shortcuts during surgery to save time or resources. Communication failures may include surgical staff not communicating properly with one another, mistakes such as the doctor marking the wrong site for the surgery, and miscommunication about medication dosage that the patient should have after surgery, performing the incorrect procedure, performing unnecessary surgery. Damaging other organs, nerves, or tissues during surgery, Leaving medical equipment and foreign objects inside the patient, providing inadequate post-operative care, including failing to recognize and treat the symptoms of surgical complications. Reasons may differ but the outcome does not provide any good to the patient.

Consumer Protection Act, 1986

1. A consumer is a buyer who buys a good for consumption not having an idea of resale it also includes consumption of services. The consumer protection act was introduced in the year 1986 for public benefit, provide speedy remedy to the public, to recognise their rights, providing low cost remedy, to get compensation without any complicated proceedings.
   
   
2. When it comes to medical negligence it was decided in a land mark judgement In the case Indian Medical Association vs. V.P. Santha-III (1995) CPJ 1(SC), service provided by almost every doctor is covered under this act. After this judgement an aggrieved person can claim damages for medical negligence against a doctor or a hospital.
   
   
3. The remedy under this act is an alternative in addition to that already available to the aggrieved person by way of a civil suit. In the complaint/appeal/petition submitted under the act, a consumer is required to pay a nominal fee.
   
   
4. The consumer forum consist of a 3-Tire structure of the National and state commission and district forums

Consumer Forums

Any aggrieved party shall claim for damages through the consumer forums

1. District Forum

   It is established in each district of the state. There are three members, a district judge is the president of the forum and with other two members. The District forum can entertain claim up to 20 Lakhs. Appeal can be made to the State commission against the order of district forum.
   
   

2. State Commission

   It is established in each state. There are three members, a High Court judge is the president of the forum and with other two members. The State commission can entertain claim from 20 Lakhs to 100 lakhs. Appeal can be made to the National commission against the order of State Commission.
   
   

3. National Commission

   It is established in Delhi. There are five members, a Supreme Court judge is the president of the forum and with other four members. The National Commission can entertain claim more than 100 Lakhs. Appeal can be made to the Supreme Court against the order of National Commission.
   
   The time limit to file an Appeal is 30 days from the date of the order and it is not the date of pronouncement but the date on which the certified copy of the order was available.
4. The Aggrieved patient or a Registered Consumer Organisation or the state or Central government, the legal heirs or representatives of the aggrieved patients can sue a doctor for medical negligence under the consumer protection act.
   
   
5. Section 2(c) of the act provides that a complaint can be given for unfair trade practice or restrictive trade practice. In case of medical negligence wrong representation about qualification or facilities available may be called unfair trade practice.
   
   
6. The time limit to file a complaint for medical negligence is 2years under the consumer protection act 1986 from the Date of injury.

Medical Negligence In Criminal Law:

Under Criminal law when it is proved that the negligent act is performed with Mens Rea (guilty mind) he shall be punished under the criminal law now because of Code of Criminal Procedure (C.C.P.) amendment - 1973, patient may get compensation too. The intention to behave in such negligent way shall be proved to make a doctor liable under criminal law. There are also protection given under the Indian penal code for the doctor who act under good faith.

Prosecution under Sec 304A of IPC:

Doctors can be prosecuted for an offence of which rashness or negligence is an essential ingredient, but they are to be protected from frivolous and unjust prosecutions.

1. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
   
   
2. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
   
   
3. The Investigating Officer, before proceeding against the doctor should obtain an independent and competent medical opinion preferably from a Doctor in Govt. service.
   
   
4. A doctor may not be arrested in routine, unless his arrest is necessary for furthering the investigation or for collecting evidence or the Doctor would not make himself available to face prosecution unless arrested.
   
   
5. 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) of the Indian Penal Code directly and indirectly deals with Criminal medical negligence.

Other Laws:

1. The Indian Medical Council Act 1956

   Any person incurred damages due to the act any doctor's negligence can file a complaint with the respective council. However the council has the 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. Since last few years the Indian Medical Council has started taking harsh steps for improvement in standard of medical practice and medical ethics.
   
   

2. Civil Laws

   Before the introduction of the consumer protection act the claims on medical negligence is claimed under the Contract law even in the present damages can be claimed under civil law but after the introduction of the consumer protection act the civil law remedy is given less importance. There is a specific contact between the doctor and the patient either be oral, written or implied terms agreed upon by the patient or his representatives and the doctor or hospital.
   
   Consent for treatment on payment of fees on the part of a patient can be treated as an implied contract with the doctor, who by undertaking treatment on acceptance of fees, promises to exercise proper care and skill. Breach of contract When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation.

Case Laws:

1. Indian Medical Association vs. V.P. Santha �III (1995) CPJ 1(SC)
   As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals under this Section.
   
   1. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
      
      
   2. Private hospitals charging all patients.
      
      
   3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.
      
      
   4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.
      
      
   5. It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to all patients.
      
      
   6. Further, this judgment concedes that the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the complainant can be asked to approach the civil courts.
      
      
   7. Also, this judgment says that the deficiency in service means only negligence in a medical negligence case and it would be determined under CPA by applying the same test as is applied in an action for damages for negligence in a civil court.
      
      
   8. As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and the independent medical / dental practitioners except primary health centres, birth control measures, anti-malaria drive and other such welfare activities can be sued under the CPA.
      
      
2. Fortis Escorts Hospital v Smt. Meenu Jain. FA: 747/12 - 14/5/13  Raj.
   
   1. Patient was forced to purchase injections from the hospital itself at Rs.18,990/-, which was available at 30% to 40% discount in the market.
      
      
   2. The contended that no money in excess to the maximum retail price was charged - hospital does not allow the patients to purchase medicines from outside in order to ensure the quality and genuineness of the medicines and for the welfare of the patients signed general consent form.
      
      
   3. It was held that in a critical condition, was not supposed to go through the terms and conditions of the admission and signatures in a routine manner. Hospital was in a dominating position over patient adverse inference of undue influence can very well be drawn against the hospital.
      
      
   4. Hospital authorities indirectly imposed unjustified and unreasonable conditions by way of compelling them to purchase the injections from the hospital. Amounted to restrictive trade practice and unfair trade practice.
      
      
   5. Also entitled to get from the hospital the information as to what was the price of the drugs or injections and what was their batch number and expiry date which were not furnished. direct the hospital not to repeat such unfair trade practice in future as it is within jurisdiction under u/s 14 (1) (f) of CPA.
      
      
3. Heirs of A. Shah v Bombay Hosp. 1992 (II) CPR 154.
   
   1. The complainant approached Medical Councils but they replied that they had no statutory power and authority to look into such case.
   2. It was observed that: we find that despite the frantic efforts on the part of the complainant to approach the different authorities, no cognizance of the complaint was taken by any medical organization, we are deeply grieved to note the inaction on the part of these highest professional bodies meant for the observance of the professional conduct of the practicing doctors and the hospitals.
      
      
4. State of Haryana v Smt. Santra. I (2000) CPJ 53 (SC)
   
   1. Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, will full or reckless negligence or negligence per se.
      
      
   2. It is defined in Black's Law Dictionary as under: Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid Municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.
      
      
   3. It was also observed that where a person is guilty of negligence per se, no further proof is needed.
      
      
5. Dr.Laxman Joshi v Dr.Godbole. AIR (1989) SC 128.
   
   1. A 20 yr. old boy had accidental fracture femur - doctor performed reduction without anesthesia, alleged excessive force caused shock and death - doctor contended that Inj. Morphine was given and death was due to Cerebral Embolism.
      
      
   2. The Trial Court held the doctor liable and observed that excessive force without anesthesia resulted in embolism or shock was the proximate cause of death.
      
      
   3. The High Court upheld and observed that doctor's case that the boy died of cerebral embolism was merely a cloak used for supressing the real cause of death viz. shock.
      
      
   4. The Supreme Court Observed:
      The duties which a doctor owes to his patient are clear. A person holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case.
      
      
   5. A duty of care in deciding what treatment to give or a duty of care in administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest not a very low degree of care and competence judged in the light of the particular circumstances of each case is what law requires.

Case laws under section 304A of IPC:

1. Sukaroo Kobiraj. (1887) 14 Cal 566.
   Cut piles with ordinary knife lead to bleeding and the patient died
2. Jugankhan. AIR 1965 SC 831.
   Homeopath, administered herbals, without studying its effect, death due to poisoning.
3. De Souza. (1920) 42 All 272.
   Compounder without reading label of bottle prepared fever mixture (contained strychnine instead quinine) seven people died.
4. State of MP v Jagdish Baloi. 1992 Cr. LJ 746 MP.
   High speed car knocked down pedestrian walking on left side of road cause death car break down the Fencing stuck in ditch Res applied.

Place For Thought

Bolam Test

The concept of Bolam test arrived from the case Bolam Vs Friern Hospital Management Committee. Medical negligence cases are briefly decided under the basis of Bolam Test. The bolam test talks about the exercise of ordinary skill of an ordinary competent man exercising that particular art. In simple words it means that the person who procures the ordinary skill of performing the activity can perform such activity there is no necessity to have an expert knowledge. The Bolam test usually favours the professionals. In the Case Bolam v Friern Hospital. (1957) 2 AllER 118.

• A patient, suffering from depression was admitted to a mental hospital advised ECT but doctor did not warn about slight risk of bone fracture involved in accordance with normal practice the doctor did not administer relaxant or apply any form of manual restraint patient suffered bilateral fracture of acetabula.
  
  
• Complaint Alleged that the Doctor 1. Failed to administer, a suitable relaxant 2. Failing to warn the patient of the risk involved in ECT 3. Failing to provide sufficient manual control.
  
  
• Experts witnessed both the sides. The defendant witness provides that witness testified that there was a large body of competent medical opinion opposed to use relaxant,the more restraint there was more like hood there was of a fracture - it was not desirable to warn, unless asked.
  
  
• It was observed that: a man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
  
  
• A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by reasonable body of medical men skilled in that particular art.
  
  
• A doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view.
  
  
• If proper practice requires some warning to be given, the second question is, if a warning had been given, would it have made any difference.

From the above case it can be noted that:

1. The case made a Ruling that a doctor accused of medical negligence needed only to find an expert who would testify to having done the same thing.
   
   
2. This test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent.
   
   
3. This test however subject to criticisms has it is overly relying on medical profession.
   
   
4. Even though Bolam test is applied the doctor should not forget that when a patient is fully in a judgement of believing the words of the doctor and his ability he should carefully perform his duty with full care and skill.
   
   
5. New standards on the application of the Bolam test shall be framed.

Reference:

• Medical Negligence (Truth Revealed): Medical & Law: Dr. Mahendra Joshi.