Vakalatnama-In vakalatnama what happens is that the person filing the suit
authorises the advocate on behalf of the person to file a suit and in civil
cases, this is not really necessary. This is done as the requirement of the time
and the need is. The person can himself go and file the case and fight the case
as well, the requirement of the vakalatnama, therefore is not a compulsion.
Filing-In this step what happens is that you file your plaint which is a written
statement with the Chief Ministerial Officer or any other officer as the
requirement may be and pay the prescribed fee for filing and the procedural fee
and get going with the following steps. The fees may be different according to
the officers you approach to.
Hearing-In this stage of hearing what happens is that the judge will listen to
what you want to say and what the other party wants to say and then it will ask
for substantial documents supporting the case and then fix a date.
Written statement-Written statement means that the statement by the judge that
is given for the hearing on the next date. Also, within that period of time the
defendant is required to record his written statements proving himself to be
free of whatever charge the plaintiff has put against him.
Replication by plaintiff-Replication by the plaintiff means, that the person who
has put the charges against you of any civil nature, he will reply to the
recorded written statement of the defendant substantiating himself in the court
of law of the various practices and actions that prove himself to be the right
and the defendant to be actually guilty of the charge of the civil action
against him.
Filing of other documents-Filing of other documents mean that the other
documents required to substantiate the arguments by each of the parties
involved. Both the parties collect and give the collected documents for
substantiating their arguments and prove that they are rightful in the court of
law.
Framing of issues-Framing of Issues means that once the documents have been put
forth across the table, the judge will now consider the issues and the parties
will have to fight their case upon the issues so framed according to the
substantiated documents and evidences.
List of witnesses-List of witnesses means that the documents that substantiated
by the parties, need also to be accomplished by a witness who will prove in the
court that he saw or witnessed the event happening for which the case has been
filed.
Final Hearing-Once the witnesses, documents and issues are looked into, the
judge decides as to in whose favour the judgement should be and acts as an
empire in the adversary system of the Indian Courts. The judgement is either
given in the form of paying damages, compensation, injunction or remuneration
for the losses suffered.
Professional
According to the English language, a professional is a person doing or
practicing something as a full-time occupation or for payment or to make living
and that person knows the special conventions, forms of politeness, etc.
associated with a certain profession. Professionals are subject to professional
code and standards on matters of conduct and ethics, enforced by professional
regulatory authorities and they enjoy high status and respect in the society.
Professional Liability
It covers all aspects of professionals to follow codes of conduct when providing
care or services in their field. In the event of the failure to adhere to the
professional codes of ethics by the service provider a professional liability
claim can be filed for.
Negligence By Professionals
In law of negligence, professional such as lawyers, doctors, architects and
others are included in the category of persons professing some special skill or
skilled persons generally. A professional may be held liable for negligence on
one of the findings of two: one, either he was not possessed of the requisite
skill which he professed to have; or two that, he did not exercise, with
reasonable competence in a given case, the skill which he did profess.
Negligence By Medical Professionals
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 medical practitioner or not, who is
consulted by a patient, owes him certain duties, namely a duty of care in
deciding whether he undertakes the case; a duty of care in deciding what
treatment to give and duty of care in his administration of that treatment. A
breach of any theses duties will support an action for negligence by patient.
Degree of Negligence
The Delhi High Court laid down in 2005 that in civil law, there are three
degrees of negligence:
# lata culpa, gross neglect
# levis culpa, ordinary neglect, and
# levissima culpa, slight neglect.
Every act of negligence by the doctor shall not attract punishment. Slight
neglect will surely not be punishable and ordinary neglect, as the name
suggests, is also not to be punished. If we club these two, we get two
categories: negligence for which the doctor shall be liable and that negligence
for which the doctor shall not be liable. In most of the cases, the dividing
line shall be quite clear, however, the problem is in those cases where the
dividing line is thin.
The Apex Court has specifically laid down the following principles for holding
doctors negligent:
“Gross medical mistake will always result in a finding of negligence. Use of
wrong drug or wrong gas during the course of anaesthetic will frequently lead to
the imposition of liability and in some situations even the principle of res
ipsa loquitur can be applied. Even delegation of responsibility to another may
amount to negligence in certain circumstances. A consultant could be negligent
where he delegates the responsibility to his junior with the knowledge that the
junior was incapable of performing of his duties properly. We are indicating
these principles since in the case in hand certain arguments had been advanced
in this regard, which will be dealt with while answering the questions posed by
us.â€
In A.S.Mittal Vs State of UP, AIR 1989 SC 1570 an irreparable damage was done to
the eyes of some of the patients who were operated at an eye camp organized by
the government of Uttar Pradesh. Some of the patients who underwent surgery
could never see the light of the day, i.e. whatever little vision they had even
that was lost. The apex court coming heavily on the erring doctors held that,
“the law recognizes the dangers which are inherent in surgical operations and
that will occur on occasions despite the exercise of reasonable skill and care
but a mistake by a medical practitioner which no reasonably competent and a
careful practitioner would have committed is a negligent one.†The compensation
was awarded.
In one of the most recent decision in Kusum Sharma v. Batra Hospital, the Hon’ble Supreme Court has settled the law relating medical negligence. Mr.
DalveerBandari J scrutinizing the cases of medical negligence both in India and
abroad specially that of the United Kingdom has laid down certain basic
principles to be kept in view while deciding the cases of medical negligence.
According to the court, while deciding whether the medical professional is
guilty of medical negligence the following well-known principles must be kept in
view:
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.
2. Negligence is an essential ingredient of the offence. The negligence to be
established by prosecution must be culpable or gross and not the negligence
based upon the error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care. Neither 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.
4. A medical practitioner would be liable only where his conduct fell below that
of the standards of a reasonably competent practitioner in his field.
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 the other professional doctor.
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.
7. Negligence cannot be attributed to a doctor so long as he performs his duties
with reasonable skill and competence. Merely because the doctor chooses 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.
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.
9. It is our bounden duty and obligation of the civil society to ensure that
medical professionals are not unnecessarily harassed or humiliated so that they
can perform their professional duties without fear and apprehension.
10. The medical practitioners at times have to be saved from such a class of
complainants which 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.
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.
In Criminal law, negligence or recklessness must be of such a high degree as to
be held gross. The apex court in Jacob Mathew v. State of Punjab, has explained
that; “the expression „rash and negligent act‟ occurring in section 304-A of the I.P.C should be qualified by the word „grossly‟. To prosecute a medical
professional for negligence under criminal law it must be shown that the accused
did something or failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses and prudence would
have done or failed to do. The hazard taken by the accused doctor should be of
such a nature that the injury which has resulted was most likely imminent.†From
the above it may be inferred that the distinction between civil and criminal
liability in medical negligence lies in the conduct of the doctor which should
be of gross or reckless or of a very high degree.
Medical Negligence And Hospitals
Hospitals in India may be held liable for their services individually or
vicariously. They can be charged with negligence and sued either in criminal/
civil courts or Consumer Courts. As litigations usually take a long time to
reach their logical end in civil courts, medical services have been brought
under the purview of Consumer Protection Act,1986 wherein the complainant can be
granted compensation for deficiency in services within a stipulated time of 90
-150 days.
Cases, which do not come under the purview of Consumer Protection Act, 1986
(e.g., cases where treatment is routinely provided free of cost at
non-government or government hospitals, health centres, dispensaries or nursing
homes, etc.) can be taken up with criminal courts where the health care provider
can be charged under Section 304-A IPC for causing damages amounting to rash and
negligent act or in Civil Courts where compensation is sought in lieu of the
damage suffered, as the case may be.
Medical Profession -Whether Under Consumer Protection Act
In one of the earliest significant ruling in Vasantha P. Nair v. Smt. V.P. Nair,
the National Commission upholding the decision of Kerala State Commission had
held that a patient is a “consumer†and the medical assistance was a service
and, therefore, in the event of any deficiency in the performance of medical
service the consumer courts can have the jurisdiction. It was further observed
that the medical officer’s service was not a personal service so as to
constitute an exception to the application of the Consumer Protection Act.
In Indian Medical Association v. V.P. Shantha and Ors., the apex court has put
an end to this controversy and has held that patients aggrieved by any
deficiency in treatment, from both private clinics and Government hospitals, are
entitled to seek damages under the Consumer Protection Act, 1986.
A few important principles laid down in this case include:
1. Service rendered to a patient by a medical practitioner (except where the
doctor renders service free of charge to every patient or under a contract of
personal service) by way of consultation, diagnosis and treatment, both
medicinal and surgical, would fall within the ambit of “service†as defined in
section 2(1) (o) of the C.P. Act.
2. The fact that medical practitioners belong to medical profession and are
subject to disciplinary control of the Medical Council of India and, or the
State Medical Councils would not exclude the service rendered by them from the
ambit of C.P. Act.
3. The service rendered by a doctor was under a contract for personal service
rather than a contract of personal service and was not covered by the
exclusionary clause of the definition of service contained in the C.P.Act.
4. A service rendered free of charge to everybody would not be service as
defined in the Act.
5. The hospitals and doctors cannot claim it to be a free service if the
expenses have been borne by an insurance company under medical care or by one’s
employer under the service conditions.
Conclusion
The book is relevant to medical practitioners and patients, in that it raises
the issue of medical errors. It provides a platform for an open discussion on
the reporting medical errors between healthcare workers and patients. The
suggestions offered in the book, though few in number, are practical and
applicable in any healthcare setting. The tools that the authors offer as a way
to minimise errors, like the use of checklists, digitalization of data,
departmental audits, mortality conferences etc., are indispensable. Probably,
computerizing the medication process system in hospital settings and
pharmacological education of prescribers and nurses could help to reduce ME.
The issue was decided in the Supreme Court in the case of [1]Jacob Mathew vs
State of Punjab. The court directed the central government to frame guidelines
to save doctors from unnecessary harassment and undue pressure in performing
their duties. It ruled that until the government framed such guidelines, the
following guidelines would prevail: A private complaint of rashness or
negligence against a doctor may not be entertained without prima facie evidence
in the form of a credible opinion of another competent doctor supporting the
charge. In addition, the investigating officer should give an independent
opinion, preferably of a government doctor.[2] Finally, a doctor may be arrested
only if the investigating officer believes that she/ he would not be available
for prosecution unless arrested.
References:
1. Statutes
2. The Constitution of India
3. The Consumer Protection Act, 1986
4. The Medical Council Act, 1956
5. Indian Penal Code, 1860
6.https://timesofindia.indiatimes.com/life-style/health-fitness/health-news/Medical-
negligence-70-of-deaths-are-a-result-of-miscommunication/articleshow/51235466.cms
7. https://blog.ipleaders.in/negligence-criminal-civil/
8. https://www.academia.edu/7576947/MEDICAL_NEGLIGENCE_IN_INDIA_A_CRITICAL_STUDY_MEDICAL_NEGLIGENCE_IN_INDIA_A_CRITICAL
9. 24 (2005) 6 SCC 1
10. Smt. Madhubala vs. Government of NCT of Delhi; Delhi High Court, 8
April 2005, Citation: 2005
11.DEL 209 = 2005 (118) DLT 515
12. In Spring Meadows Hospital &Anr.VsHarjol Ahluwalia & Anr.30 (1998)
4 SCC 39 at 47,
13. https://www.legalmatch.com/law-library/article/criminal-negligence-laws.html
14. https://en.wikipedia.org/wiki/Negligence
15. https://en.wikipedia.org/wiki/Breach_of_duty_in_English_law
16. https://ijme.in/articles/medical-errors-fighting-on-the-same-side/?galley=ht
ml
17. https://ijme.in/articles/medical-negligence-and-the-law/?galley=html
18. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5079090/
End-Notes
[1] Jacob Mathew vs State of Punjab.
[2] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5079090/
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