Medical Negligence: The law each doctor & patient must know – II
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Medical Negligence: The law each doctor & patient must know – II

Medical profession has its own ethical parameters and code of conduct. However, negligence by doctors must be determined by competent inquiry officers or judicial staff   who are assisted by Medical Quality Professionals

Post by DR. FIAZ MAQBOOL FAZILI on Sunday, November 13, 2022

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Criminal Liability and Medical negligence

Medical Negligence is an offense under tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. Section 304 A, IPC reads Causing death by negligence —Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Many Indian Penal Codes contain the law of medical malpractice in India. For a common person medical malpractice -negligence is professional negligence by act of omission or commission by a health care provider in which the treatment provided falls below the accepted standard of practice. The victims of professional negligence rarely challenge the doctors, history tells us patients and relatives have been mutely accepting the losses and the sufferings as the will of God. On the flip side the healthcare providers, taking it for granted, remain complacent about their duty to ensure safety of their patients. Whenever a safety violation takes place the efforts to hush it, deny it, belie it, and push it under the carpet as quickly as possible rather than facing the uncomfortable media Qs such as “ why and how,” finding the answers or taking the corrective and preventive actions  (CAPA). The incidents that come to lime light (social media) are only the tip of the iceberg, the vast majority of cases of medical negligence remains under reported or not reported.  It’s not for the awareness of the laws or the inherent character of the valleyities of UT, to sue care providers, as victims feel it is difficult to prove cases of Medical negligence and powerful people (doctors-private hospitals nexus) influence the inquiries but the high cost of treatment with no favourable results that drive the litigation for compensation in addition to unbearable hardship that’s meted out to the victims or their families.

 

Lessons Not Learnt

Medical Errors Should Not Be Our 3rd Leading Cause of Death. What Causes Negligence?  Medicine is ranked amongst high risk -high volume problem prone industry following Nuclear, Aviation, & Oil rig. Errors are inevitable in the practice of risk prone industry where multiple people interact with different mindsets, get involved in decision making processes at various human machine levels, and interface with heterogeneous behaviors. On Safety Culture what an organization does and the actions it takes routinely and reliably, more so than just the words used to portray the desired state, set low thresholds for an alert condition sensitivity towards error proofing setting triggers of zero tolerance for negligence sadly such sensitivity for error proofing desired is lacking in Medicine organizations.  The most obvious causes are failures in unaccountable system is individual performance related to attention, memory, knowledge, judgment, skill, and motivation. However, lack of validation (degree) and privilege process (certifying the competence and skills to intervene/operate - who is competent to do any operation) in our ailing healthcare system is also result in part from the nature of medical work, such as the complexity of medical knowledge, the uncertainty of clinical predictions, and the need to make timely treatment decisions despite limited or uncertain knowledge. And importantly, mistakes are caused by system factors that influence working conditions. Although much attention has been focused on the harmful effects of errors on patients, it must be understood that these incidents can be correspondingly distressing for physicians, evoking shock and feelings of remorse, guilt, anger, and sometime law is taking very long course and eventually public forgets that there has been a case of Medical Negligence.

 

Medical profession has its own ethical parameters and code of conduct. However, negligence by doctors must be determined by competent inquiry officers or judicial staff   who are assisted by Medical Quality Professionals (clinical auditors) trained in medical science otherwise facts are manipulated. Inquiry process should rely on experts’ opinion and decided based on basic principles of reasonableness and prudence. There is often a thin dividing line between the three levels of negligence; “lata culpa”, gross neglect; “levis culpa”, ordinary neglect; and “levissima culpa”, slight neglect. The level of negligence depends on the entire context – which includes the place, the time, the individuals involved, and the level of complications. The difference between medical negligence and medical error is well-settled, and the principles are well-founded being clearly laid down in numerous cases by the Supreme Court. Thus, there is a need to appreciate this differentiation by the society so that doctors do not get indicted for impractical reasons.

 

Safety culture can be difficult to define and measure. Yet over three-quarters of all incidents are due to insufficient appreciation of risks, lack of proper intervention to recognized risks, or lack of attention to safety, which are factors indicative of a poor safety culture. A strong safety culture requires the involvement, commitment, and ownership of the highest level of management in an organization, down through the organization. Open communication is a must at all levels. Everyone’s responsibilities and accountabilities regarding safety must be clearly defined and understood. Finally, there must be a zero tolerance for disregard of safety systems, procedures, and related technology. Organizations with leading safety cultures view safety as a core value, not as a priority that can be prioritized along with other competing objectives such as production and costs. It is important to distinguish two concepts: ‘safety climate’ and ‘safety culture. The term safety culture can be used to refer to the behavioural aspects (i.e., ‘what people do’), and the situational aspects of the company (i.e., ‘what the organization has’). The term safety climate should be used to refer to psychological characteristics of employees (i.e., ‘how people feel’), corresponding to the values, attitudes, and perceptions of employees about safety within an organization. Safety culture is that observable degree of effort by which all organization members direct their attention and actions toward improving safety daily. Safety climate describes the safety ethics in an organization or workplace which is reflected in employees’ beliefs about safety. A Supreme Court judgment on medical negligence has restored a semblance of balance in the issue. A decline in the self-regulatory standards of the medical profession and a rise in medical negligence can be attributed to the overwhelming impact of commercialization. Currently the balance between service and business is shifting disturbingly towards business and this calls for improved and effective regulation, whether internal or external or both.

 

Medical Malpractice & Negligence

Most of the victims have false notion a Qualified doctor or a care provider can’t be sued for negligence as it is difficult to prove medical negligence. Valleys Medical Negligence Medicolegal Consultants say   complaints of the medical negligence are covered under the provisions of the Consumer Protection Act, 1986 and a patient can seek redressal of grievances from the Consumer Courts. Any aggrieved person can claim damages for medical negligence against a doctor or a hospital. Section 69(1) of the Consumer Protection Act, 2019 lays down the time limit within which a complaint for medical negligence must be filed as 2 years from the date of injury.  The professional group of Lawyers appeal people that if you received substandard care in a clinical setting and suffered complications as a result, contact Medico Legal Firm who have the resources of a large practice, but remain committed to providing the personalized and attentive counsel of a reputed, local firm. Call to schedule a professional consultation with a medical malpractice lawyer in one of these chambers by letting them handle the logistics of your case, while you can focus on more important matters, like taking care of your health.

 

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(The Author is Senior Surgeon & Certified Quality Professional (Specialist) in Healthcare Policy planning & Quality improvement in Healthcare. He is also Chairperson, Patient family rights & Medical negligence advocacy group. An experienced Clinical auditor and investigator of medical negligence and malpractice cases. He can be reached at: drfiazfazili@gmail.com)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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