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MEDICAL NEGLIGENCE- WHEN THE PROTECTOR BECOMES THE PERPETRATOR

Post by on Sunday, June 12, 2022

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People say that Medical Profession is a feat, it requires self-sacrifice, purity of soul and purity of thoughts. It is an uncontested fact that medical profession is considered to be one of the most noble professions of the world and doctors are considered to be extraordinary humans next only to God who have saved many a lives in their quest for perfection and who work tirelessly towards the betterment of their fellow humans.

Even though to err is human, yet the doctors shoulder the responsibility of saving lives, and this responsibility does not leave any room for doubt or mistake. Every mistake made here would be at the cost of a human life and hence it is imperative that doctors perform their duty with expertise and utmost caution. Whenever there is a failure on the part of the medical fraternity to observe adequate caution, it may be termed as a case of medical negligence.

There has been a marked increase in the cases of medical negligence in the recent times and the reason for the same may be either an increased awareness of the issue or it may also be an increased burden on the medical facilities due to a rise in health problems amongst the pandemic struck population. Various laws have been enacted in order to make the medical fraternity accountable for their actions and to provide relief to the public and the same can broadly be summarized as follows:

1)   Relief provided under The Consumer Protection Act. 

2)   Relief provided under The Indian Penal Code of India.

3)   Relief provided under other laws.


Persons to whom the above acts are applicable are:

  i.         To all the Medical Practitioners.

  ii.         All private or trust hospitals, nursing homes and polyclinics.

 iii.         The Government hospitals and doctors.

 iv.         All laboratories, blood banks and x-ray clinics.

  v.         The nurses and paramedical staff.

 vi.         Medical stores.

vii.         Pharmaceutical company.

viii.         Quacks jointly and severally.

 ix.         The aggrieved patient.

  x.         Legal heirs or legal Representative.

 xi.         State and Central government.

 

Examples of medical negligence

 

a)  Prescribing Wrong Medication:

One of the most common forms of medical negligence is the prescribing of incorrect medication or prescribing incorrect dosage as per the age and weight of the patient. This may also happen when the patient receives the incorrect medicine that was basically prescribed for another patient from the doctor’s clinic.

b)  Incorrect diagnosis:

Another common cause of medical negligence is wrong diagnosis. The reasons for the same may vary from loss of focus, incompetence of the doctor, unavailability of the right infrastructure or non-performance of certain tests on the patient. It is needless to say that incorrect diagnosis of a patient can not only prolong his ailment, but can also lead to a permanent and irreversible loss to the patient.

c)   Improper administration of anaesthesia :

Anaesthesia which is perhaps one of the most under-appreciated field of the medical profession is the key and the cause of many a medical failures. An Anaesthesiologist not only provides pain relief to a patient, but he also has control over his other vital life functions. An Anaesthesiologist is also responsible for the pre-operative evaluation and the post-operative management of his patient. Any mistake whether major or minor, related to the administration of anaesthesia, can cost a patient his life. Anaesthesia errors happen every day in hospitals, doctor's offices, and surgical centres. Anaesthetists and Anaesthesiologists play a vital role in surgeries.

d) Surgical mistakes:

Finally, we have all heard of the glove that was left behind after a surgery or the kidney that was wrongly removed! Surgical negligence can be termed to be the most common form of Medical negligence. Surgical errors may occur due to various reasons which 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 who may be scarred/ traumatised for life after this negligent act or worst still…. May loose his life.

 

Legal Reminders

A. Consumer Forums

Any aggrieved party may claim for damages through the consumer forums as per the following ( among other ) jurisdiction:

1.  District Forums

A District Consumer Forum is established in each district of the state. There are three members in every forum which includes a district judge who is the president of the forum and other two members. The district forum can entertain claims up to Rs 50 lakhs. Appeals thereafter can be made to the state commission against the order of district forum.

2.  State Commissions

A State Consumer Forum or a State Commission is established in each state. Here too, there are three members including a High Court judge who is the president of the forum and other two members. The State commission can entertain claim from Rs 50 Lakhs to Rs 2 crores. Appeals thereafter can be made to the National commission against the order of State Commission.
3.  National Commission

NCDRC or National Commission is established in Delhi. It has five members including a Supreme Court judge who is the president of the forum and four other members. The National Commission can entertain claim for more than Rs 2 Crores. Appeals can also be made to the Supreme Court against the order of National Commission.

1.   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 made available to the party that counts.

2.   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.

3.   The act provides that a complaint can be filed against 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.

4.   The time limit to file a complaint for medical negligence is 2years from the date of injury under the consumer protection act 1986.

 B. Medical negligence In criminal law

Under the Indian Penal Code, if it is proved that the negligent act has been performed with mens rea i.e. a criminal intent/ guilty mind, the culprit shall be punished under the criminal law and the patient may get compensated for his loss too. In order to hold a doctor liable for negligence, it needs to be proven that he did not take care as per reasonable standards and was negligent with a guilty mind. Conversely if it is proven that the doctor acted under good faith then protection has been accorded to him in such cases. The same has been done in order to allow them to work without any unjust pressure and to save them from frivolous and unjust litigation.

 

Examples of unjust litigation against doctors

Many times, a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation/enrichment. Such malicious proceedings have to be guarded against.

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 and to show that the accused doctor did not take reasonable care of the patient.

1. A doctor may not be arrested in routine, unless his arrest is necessary for furthering the investigation or for collecting evidence. Such a rule is necessary else the doctors will not be able to work efficiently, being always under the threat of unlawful litigation. 

2. 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.

Briefly speaking, what is reasonable care to be taken by the doctor concerned has been explained in the case of Bolam vs Friern Hospital Management Committee. This test talks about the exercise of ordinary skill of an ordinary competent man exercising that particular art. 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.

To conclude we may say that even though we feel that doctors are next to God as they save many a lives in the course of their careers, yet we cannot forget that they are but humans. Many doctors, even specialists, sometimes make errors which may result in damaging the health of their patients or worst still- their death. It is the duty of every law maker to ensure that deaths that are caused due to negligence are avoided as much as possible without burdening the doctors with the added fear of looming litigation every time they start the treatment of a patient!

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