ABSRACT
With the advancement of technology, many incurable diseases are now curable. Not only this but now people live longer than the earlier times as there are several developments in the field of medicine. With the time medicines and technology has changed but one thing that hasn’t changed is Medical Negligence. Even now, when we promise best medications and facility to patients, there are a number of evident cases which bring to our notice the medical malpractice that prevails in the recent times. Every practitioner possessing some skill owes a duty to the one he provides service to. Often, due to the carelessness of the practitioner this duty is breached on his part and as a consequence thereof the consumer suffers an injury/damage/loss.
A shocking fact is that even with advance technologies, cases of negligence haven’t decreased to a noticeable extent. The most vulnerable person in the relation is the patient who expects to get treated but instead suffers a greater loss. In the crucial time of covid-19 pandemic, it is essential to note that the practice can be proved harmful o he citizens of our country. The virus is contagious and can spread from one to another quickly if not brought under control. But the number of increasing cases tells us a different story; it gives us the evidence of poor management and medical facilities. This research paper aims to focus on the concept and cases of medical negligence in light of current scenario of pandemic.
Keywords: Negligence, Medical Negligence, Duty, Liability, Covid-19, Compensation, Injury.
INTRODUCTION
When one person owes duty to the other and commits a breach of the same which results damage to the other, the person is said to commit negligence. Medical Negligence refers to negligence committed by a professional in the field of medicine. A Medical Practitioner at general needs to maintain a standard of care and in case they fail to do the same, they are liable for the damage made. The concept of medical negligence has developed to punish the wrongdoer and bring justice to the person who has suffered loss due to negligent behavior of the latter. Negligence is punishable under many laws including Tort, Contract Act, Consumer protection Act and the IPC.
By the years, numerous patients have died, had permanent injuries, miscarriage, disablement and more due to the medical negligence of a professional. A patient is a consumer and expects necessary care to be practiced by the professional. However not every harm caused to patient during treatment is punishable or result of a negligent behavior. A professional is liable only to the extent to which the skills of a person in that field are considered reasonable. A doctor is expected to provide services which heal the patient and makes him/her physically fit. He is required to have the necessary skills and knowledge for the purpose and exercise reasonable degree of care. The standard of skills and care depends upon the qualification of the person. A doctor is expected to have more skills than an average nurse may have. Medical practice falls under the ambit of services, the Supreme Court in the case Indian Medical Association v. V.P. Santha explained[1]:
“Services rendered to a patient by a medical practitioner (except where the doctor renders services 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 ambit of service as defined in Section 2(1)(o) of the Act”.
Medical Negligence is a serious issue and has been prevalent irrespective of the time. A person with no knowledge and skills that are required to treat a particular injury or disease is expected to commit negligence. The harm caused can vary from a temporary disability to death of the person. Generally, doctors indulge in activities like wrong treatment, overdose of medicines, carelessness about the health and capacity. If a patient suffering from Hepatitis and Jaundice gets a surgery without getting initial checkup for diseases and gets into even more serious condition that could even result into death if gets more serious, the doctor is liable for the negligence.[2] In such cases the doctors are liable for medical negligence in the treatment of patients and shall compensate or even be punished for the same.
HISTORY
The idea of medical negligence is around many years old. The Babylonian lords Hammurabi present a law against the doctors whose patient loses an eye. The discipline for such acts of neglect was to cut the hand of the doctor or specialist. Indeed, even the Egyptian and Roman law had such comparable arrangements for clinical acts of neglect causing demise or genuine wounds to the patient.[3] During British rule, English custom-based law was presented in the organization of equity in India. Mr. Wheeler, 555 individual from committee, Sea client and boss Justice of choultry in Chennai kicked the bucket because of utilization of wrong prescriptions. Dr. Samuels were attempted and absolved by the fantastic Jury when the Bill of Ignoramus[4] was acquired. Before the presentation of the Constitution of India 1950, countless English standards of law of misdeeds were followed and applied by the Indian courts.
The very first case at any point recorded under English law was in year 1374 against a specialist J. Mert; the opposite party had a physical issue in his hand because of wrong treatment. In USA, the primary case was recorded was in the year 1794, the case is known as Dr. Cross v. Guthrie[5]. For this situation patient’s significant other sued Dr. Cross, a doctor after the patient passed on because of postoperative mastectomy (bosom expulsion medical procedure) inconveniences three hours after activity. The remuneration of 40 pound was granted to defendant party.
In Kautilya’s Arthashastra, the laws relating to weight and measures at that time are depicted. Similarly, Yajnavalkya has given his views on weights and measures and adulteration of food, punishments with regard to it in Yajnavalkya samhita. Main provisions of Yajnavalkya samhita cover transactions related to sale and purchase. It also has regulations related to the sale of sample. He took into account the hard conditions faced by the purchaser and framed rules for their protection by giving them time to judge the utility of goods purchased and giving them the right to return goods. One fine elaborative mechanism of pricing policy and profit ratio charged by traders on the sold goods has been prescribed in the samhita. He also developed a concept of constructive theft. It includes the widespread deceitful practice of goldsmiths. The malicious practices ornament makers were prevalent in the ancient times as well and in order to protect the consumers from the same he (Yajnavalkya) prescribed certain standard norms. These norms included rules regarding ornaments so that the goldsmith cannot claim on great wastage and in case they do, they will be punished for the same.
The Indian common law on negligence basically is the appointed authority made custom-based law followed in England for quite a long time. In the lead of hearings, the law considers an assortment of levels of capability, and in this manner an assortment of guidelines, as long as the level of skill which can be normal from any given proficient is promptly obvious from his specific capability for example that he is an overall specialist as opposed to a pro. Be that as it may, each expert must accomplish a satisfactory degree of basic competence. When assessing whether or not a professional has been negligent, the courts will normally use as their benchmark the common practice within the relevant profession. However, where they consider that a profession adopts an unjustifiably lax practice, they may condemn the common standard as negligent.[6]
MEDICAL NEGLIGENCE
Meaning of Negligence
Eminent jurists and judges have exclaimed that there are many meanings to negligence. The Apex Court in the case of Jacob Mathew v. State of Punjab[7] stated,
“Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.”
In usual meaning, negligence means carelessness towards something but in legal language it is the breach duty to exercise a certain standard of care that has resulted in some sort of injury. In the case of negligence the injury is generally foreseeable, hence a man, in order to prevent any harm or injury is expected to be preventive in his actions. There are cases when a man is careful but not accordingly to the situation which may also result in injury. If a person boards a train which has just started moving but forgets to close the door of the boogie, it creates danger for the people standing on the platform. And if a porter standing on the platform gets injured, the latter is liable for his carelessness as it is a duty of the boarding people to close the door as to prevent any injury to others.[8]
Medical Negligence
Professionals in the law of negligence are lawyers, doctors and architects. Professing a special skill requires adequate practice and knowledge of the task undertaken. This is the reason a medical practitioner is said to ‘practice medicine’, even if the field requires proficiency a lawyer or doctor doesn’t assure his clients of 100% success. The only assurance that can be given is that the person is proficient in the required skill and while undertaking the certain task will handle it with reasonable competence.[9]The Apex court held that a person can be held liable for negligence on two findings, ‘either he was not possessed with the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess’.
“In my opinion, our health care system has failed when a doctor fails to treat an illness that is treatable.” – Kevin Alan Lee.
In the case Indian Medical Association v. V.P. Santha[10], the judges explained the difference between “occupational liability” and “professional liability”. They state that a profession consists of success and failures and those we cannot expect the doctor or medical practitioner to always have success in every case. The liability can only be decided on analyzing the case as the standard of care differs from case to case. A case of patient suffering from flu requires less care than a person suffering from cancer. Also the possibility of healing also depends on the case and its severity. In M/s Spring Meadows Hospital v. Harjot Ahluwalia[11], the Court observed, that the judgment depends on case to case. If the error made by the person in charge would not have been made by an ordinary person competent and skilled to the same extent as the defendant acting with reasonable care, he must be held negligent. While if the error made by him could have been made by an ordinary person in the same situation he must not be held negligent. A homeopathic doctor giving allopathic medicine which causes the patient’s death has been negligent and is liable to compensate as he was entitled to practice homeopathy only.[12]
Also, the term accident should not be confused with the consequence of negligence. Accident has a wider meaning. An accident means an unintended and unforeseen injurious occurrence; something that occurs in the usual course of events or that could not be reasonably anticipated.[13]
Res ipso loquitur[14] in Medical Negligence
The principle of res ipso loquitur is also applicable in the field of medical negligence. If the accident occurred would not have occurred if the management would have taken essential care and preventive measures, it proves to be an evidence for the liability. In such cases the management or the servants have been negligent towards their duties which resulted in the injury caused to the patient. In the case of Ashish Kumar Mazumdar v. Aishi Ram Batra Charitable Hospital Trust,[15] the patient has fallen out of the window of a hospital room, which clearly showed the negligence of the hospital staff. A three-judge bench of the Supreme Court applied the principle of res ipsa loquitur held the hospital liable for the absence of duty of care.
ESSENTIALS OF NEGLIGENCE
Negligence is the breach of a duty that a person owes to the other, caused by an omission which an ordinary man guided by the considerations of human conduct would not do; and the breach has resulted into an injury or damage to the person. Negligence has three essential components: ‘duty’, ‘breach’, ‘damage’.
The duty of care owed to the plaintiff;
The breach of duty on the part of defendant;
The damage caused to the plaintiff as a result of the breach.
Duty of the Doctor to attend a patient
If a doctor does not care to attend a patient in need to be admitted or attended the doctor will be held liable to compensate for any kind of loss that the patient suffers. There are many cases in which due to the non availability of the doctor at the time a patient has to suffer great injuries and even death. It was held inSishir Rajan Saha v. The state of Tripura[16] that if a doctor is not available to attend a patient he will be liable for the damage caused. In the recent case, the petitioner’s son met an accident while coming to Udaipur from Agartala on scooter. He was admitted to the G.B. Hospital, Agartala in the emergency ward. The senior doctor, Dr. P. Roy who was a specialist in the field wasn’t available in the hospital at the time. He was continuously contacted and called to the hospital but chose to ignore as he was busy attending his patients in private. As a result the patient gave in to his injuries and died. The Court held the doctor liable to compensate Rs. 1, 25,000 to the father of the deceased. The Court also directed the Government hospitals to upgrade their services.
Duty of care
When a doctor attends his patient, he owes certain duties towards the patient:
- A duty in deciding whether to take the case,
- A duty in deciding the kind of treatment to give,
- A duty of care in the administration of the treatment.
In Dr. Lakshman Bal Krishna Joshi v. Trimbak Bapu Godbole[17], the respondent’s son who was 20 years old met an accident on a beach and as a result femur of his left leg was fractured. He was taken to the appellant’s hospital and during the treatment of reducing the fracture; the appellant gave him a single dose of morphia injection instead of giving an anesthetic. He used excessive force in handling the fracture and pulled the injured leg with three attendants. Then he put his leg into plaster of paris splints. The treatment gave a shock to the patient and as a consequence thereof he died. The doctor was held guilty of negligence by the Supreme Court.
In the recent case, the court held, “The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very low degree of care and competence judged in the light of the particular circumstance of each case is what the law requires. The doctor, no doubt, has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”
In the case of Jagdish Ram v. State of H.P.[18], 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 anesthetist can provide ample amount of medicines to the patient’. The doctor in this case gave an overdose of anesthesia to the patient and as a result thereof the patient dies. The doctor was held liable for the negligence on his part.
Thus, a treatment found to be not in accordance with medical protocol would be a case of medical negligence.[19] The doctor cannot be made liable for negligence in case when things have gone wrong. But if a doctor fails to provide medication necessary to the treatment and health of the patient, no one but the doctor is to be held liable for the act.
NEGLIGENCE DURING THE COVID-19 PHASE
With the COVID 19 pandemic surrounding the globe and in excess of 2 million active instances of the same, the caring administrations by the medical experts is the main redeeming quality going with the careful steps that are the duty of the considerable number of citizens. Be that as it may, the security of the residents is being taken consideration by the clinical organization yet what it involves for the clinical clique who is over and over being blamed for negligence in discharge of average duty. On one hand the medical practitioners are being hailed as ‘Corona warriors’ but on the other hand, with the increase in cases wouldn’t there be a increase in negligence?
India had only 111 Covid-19 testing centers to deal with a population of 1.35 billion people. This accounts to the medical negligence of the practitioners along with the hospital administrations especially at a time when every state is trying to reduce the number of cases. The number of beds available in the hospitals is comparatively less and as a result the citizens are dependent on understaffed and under-funded state run health facilities for COVID 19 diagnosis and treatment. This is a serious issue as people do not believe on the state authorities. A lady who was quarantined after her Spain visit states that there is a lack of basic amenities in the hospitals. People fear to come forward as they doubt the skills of the administration to treat their disease. Global health experts claimed that India does not have enough infrastructure and other facilities to face the pandemic. The claim nearly became evident with the increasing number of cases in India. Not only hospital authorities but the government has been lacking service, testing is another major concern. India has performed a little over 100,000 tests — a rate of nearly 47 tests per million people compared with 4,572 tests per million in the U.S., 2,753 tests per million in the U.K, and 8,800 per million in South Korea[20]. At present, India is not adequately testing to identify new cases, which might be hiding the true number of cases. An incident of severe medical negligence was noted when the Patna All India Institute of Medical Sciences (AIIMS-P) handed over the body of a COVID-19 positive patient to his family members.
In the midst of the vulnerability made by the COVID-19 pandemic, the judiciary remains the sole symbol of would like to review the worries of residents oppressed by the absence of satisfactory medical framework and the rising occasions of clinical negligence. There is trust that vital estimates will be taken by the Supreme Court, to safeguard the confidence and any expectation of the individuals.
CONCLUSION
Medical Negligence is, by and by, a hard issue to set up. On the off chance that negligence cases result from the current emergency, they will be tried comparable to target norms of care. The courts will think about the real factors and conditions of the case, including that the medicinal services staff were acting in an emergency. Considering past cases and the law’s methodology, the significance of clinical rules, conventions, staff preparing, ability appraisal, and enlistment expect a fundamental centrality, and all means should be completely reported. Documentation of steps taken in every one of these issues will demonstrate pivotal in safeguarding any cases brought. In any case, the COVID 19 is a phenomenal occasion and the relevance of the above laws in such conditions of most extreme criticality and affectability stays to be questionable. After the lockdown ends it would be unmistakable component of the lawful framework to observe such case emerging out of clinical carelessness in taking care of crown positive patients.
It isn’t expressed that specialists (doctors) are careless or reckless, however while carrying out a duty which requires a great deal of knowledge and care, regularly numerous experts fail to perform their duty towards the patient. Medication which is perhaps the noblest profession requires setting a domain which can profit the victims of different diseases. Numerous specialists even the expert in some cases dismisses little things to be dealt with while practicing which may bring about harms to the patients that could have been maintained with a permanent disability from that time or even the demise of the patients.
This type of negligence makes patients more prone to harm than to heal. And to avoid these sorts of accidents, prevention and careful behavior of doctors is important. The most prevalent way of doing this is relevant laws and statutes to ensure a patients well being. In a case where a US-based doctor who was Indian from origin lost his 29-year-old wife who was a child psychologist during their visit to India fifteen years ago. The Supreme Court asked the Kolkata-based hospital and three doctors to pay over Rs 11.41 crore[21]. “A bench of justices C K Prasad and V Gopala Gowda arrived at a figure of Rs 6.08 crore as compensation after considering aspects such as loss of consortium, pain and suffering and the cost of litigation.”
Another such case was noted where the Apex Court awarded a compensation of 1.8 crores to a women who had lost her eyes in 1996.[22] Cases like this are evidence of the medical malpractice in India. The government requires making strict rules to prevent the same, so that the justice prevails. People of India should be provided with adequate medical facilities, hygiene and sanitation. Laws should be strict for not only medicine but for all such professions to maintain a certain standard of care and prevent breach of duty.
[1] (1995) 6 SCC 651.
[2] AIR 2012 M.P. 21
[3] Tapas Kumar Koley, Medical Negligence and Law in India.
[4] “We are ignorant”. This was the word used by the grand Jury to discuss a bill of indictment and was used in the sense of not a true bill or not found. available at : https://www.etymonline.com/word/ignoramus( Last visited on March 12,2018)
[5] 2 Root 90 (Conn. 1794)
[6] Edward Wong Finance Co Ltd v. Johnson, Stokes, [1984] AC 296
[7] AIR 2005 S.C. 3180
[8] Booker v. Wenborn (1962) 1 W.L.R. 162.
[9] Jacob Mathew v. State of Punjab
[10] (1995) 6 SCC 651.
[11] (1988) 4 S.C.C. 39.
[12] Poonam Verma v. Ashwin Patel and Ors. (1996) 4 S.C.C. 332
[13] Black’s Law Dictionary, 7th edition
[14] The principle that the mere occurrence of some types of accident is sufficient to imply negligence.
[15] AIR 2014 S.C. 2061.
[16] AIR 2002 Gauhati 102.
[17] AIR 1989 185
[18] A.I.R. 2007 (NOC) 2498 (H.P.)
[19] Malay Kumar Ganguly v. Sukumar Mukherjee AIR 2010 S.C. 1162.
[20] https://www.bbc.com/news/world-asia-india-51922204
[21] THE OUTLOOK
[22] Krishna Iyer v. State of Tamilnadu and Others, 2015 STPL(Web) 1239 SC
”While a murderer devastates the physical frame of the victim, a rapist deteriorates and defiles the soul of innocent life. ”
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