MEDICAL NEGLIGENCE: AN OVERVIEW
Updated: Nov 10, 2020
BY R. Sanjay Rakul, III year B.B.A.,LL.B.(Hons.) Introduction The medical profession is one of the most dutiful professionals in the world. If the doctor negligently did something it may lead to the death of the patient or may lead to a completely vegetative state of the patient. In recent years the medical negligence has increased slightly, in India, nearly 52 lakh medical negligence was recorded every year and 98,000 people have died due to medical negligence. It was said that 10 people fall victim to medical negligence every minute and more than 11 people have died for every hour. Medical negligence is the improper or unskilled treatment of a patient by a medical practitioner. The medical negligence includes the taking care of a nurse, physician, surgeon, pharmacist or any other medical practitioner.
Essentials of medical negligence
Negligence means the failure to perform an act or omission of an act. In the case of medical negligence, the following essentials are required:
1. Existence of a duty to care, the defendant owed a duty of care to the plaintiff
2. The defendant should make a breach of his duty
3. The plaintiff should suffer some damages to the breach of the duty
The only defence for medical negligence is that the defendant should prove that he didn’t breach the duty of care.
History of medical negligence
The concept of medical negligence is too old; the law was introduced by the Babylonian Kings Hammurabi. He introduced the law against a physician whose patient loses an eye. During the British rule in India, Mr. Wheeler, 555 member of the council, Sea customer and Chief Justice of Choultry, died due to medical negligence in Chennai. Hence, the concept of medical negligence was evolved in India.
The liability of medical negligence comes under torts, Indian Penal Code and Consumer Protection Act.
Negligence under tort
The tortious liability arises from the breach of duty. The defendant has to pay compensation to the plaintiff for his negligence act.
Mr. M. Ramesh Reddy vs. State of Andhra Pradesh, in this case, in a hospital’s bathroom a person fell and he has died. The hospital was held liable for not keeping the bathroom clean. The court held that the hospital was liable to pay the compensation of Rs. 1 lakh.
Negligence under IPC
1. According to Sec. 304-A of the IPC, if a person commits a rash or negligent act which amounts to culpable homicide then the person was imprisoned up to two years or with fine or with both.
2. According to Sec. 377 of the IPC, if a person commits a rash or negligent act which amounts to threatening the personal safety of a person, then the person was imprisoned up to six months or with fine or both.
3. According to Sec. 338 of the IPC, if a person commits a rash or negligent act which amounts to grievous hurt of a person, then the person was imprisoned up to two years or with fine or both.
Negligence under the Consumer Protection Act
The Sec. 2(1) (o) of the Consumer Protection Act defines the term ‘service’. All the medical services fall under the purview of this act. According to the Sec. 2(1) (o) of the Consumer Protection Act, the medical services should be treated as a service. The medical services which are provided under without any charges are not considered under the purview of the Sec. 2(1) (o) of this act but if he is an independent doctor and provided the service without any charges comes under the purview of the Sec. 2(1) (o) of this act.
Types of medical negligence
1. Wrong diagnosis- The procedure for diagnosis is very critical. If a patient is not treated properly then the doctor is held liable.
2. Delay in diagnosis- The delay in diagnosis causes injury or illness of a patient.
3. Error in surgery- To do a surgery enormous skills are required and it should be done very carefully, a slight mistake during the surgery may lead to the death of the patient.
4. Unnecessary surgery- Unnecessary surgery may lead to the death of a person or to the complete vegetative state.
5. Error in the administration of anaesthesia- Anesthesia is a risky part of a medical procedure, it requires enormous skills. To give anaesthesia to a patient a specialist (anesthesiologist) is required to monitor the patient. Excess anaesthesia is harmful to the patient’s health.
6. Childbirth- Childbirth is a difficult event for a woman, a slight mistake will lead to the death of both lives.
To file a complaint
If a person suffered due to medical negligence, then he has to file a complaint against the doctor in the State Medical Council. If the motive of the person is to get the monetary compensation from the doctor then he has to file a complaint in the consumer court.
Doctors are considered as near to God, everyone believed that they could feel better after the treatment. But sometimes due to the slight mistake from the doctor, the patient will suffer a lot. Thus the doctors should be careful while they are treating a patient.