Srinagar, Sep18: A seminar on Medical Negligence and its Legal Framework in India was organised by Aryans College of Law.
Adv Devika Mishra, Delhi High Court, was the keynote speaker and Adv Priyanka Yadav was the moderator. Dr.AnshuKataria, Chairman, Aryans Group, presided over. Advocate Mishra interacted with Aryans students including LLB, BA- LLB, B. Pharma, D. Pharma, B.Sc Nursing, GNM, ANM etc.
Mishra while interacting said that the procedure for reporting and in fact suing for medical negligence in India is dependent upon the different actions that are maintainable in law against medical practitioners. Any medical procedure that was performed according to the rules of the medical profession with the consent of an informed patient and performed by a qualified person does not come within the scope of criminal behavior, even if a harmful outcome for the life and health of a patient does occur. On the other hand, even if just one condition is not fulfilled, a medical procedure may result in criminal responsibility.
She also discussed that the consequences of medical negligence include civil or monetary liability under the Consumer Protection Act and the Law of Torts; Criminal liability under Sections 304-A, 337 and 338 of the Indian Penal Code; and Disciplinary action under the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002. The defences for a doctor are available under Sections 80, 81, and 88 of the Indian Penal Code.
Advocate Priyanka Yadav said that the basic knowledge of how judicial forums deal with cases relating to medical negligence is of absolute necessity for medical practitioners. The need for such knowledge is greater now than before in light of the higher premium being placed by the Indian forums on the value of human life and suffering and in all cases, the medical professionals are not at fault. She also elucidated the advisory for doctors and safeguards from criminal prosecution.
While discussing the landmark judgments of the Supreme Court, she stated that in Dr. Suresh Gupta v. Govt. of NCT Delhi, the Court held that mere lack of necessary care, attention or skill was observed to be insufficient to hold one criminally liable for negligence. The Court in Jacob Mathew v. State of Punjab stated that in order to establish the existence of criminal rashness or criminal negligence, it must be established that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The Supreme Court in V Kishan Rao v. Nikhil Super Speciality Hospital, observed the need to reconsider the parameters set down in the Bolam test, i.e., the standard of the ordinary skilled man exercising and professing to have that special skill, and not of “the highest expert skill”, added Yadav.
Sanskriti Rana, HoD, Aryans College of Law discussed Samira Kohli v. Dr. Prabha Manchanda, in which the Supreme Court held that consent taken for diagnostic procedure/surgery is not valid for performing therapeutic surgery, either conservative or radical, except in life-threatening or emergent situations. In Indian Medical Assn. v. V. P. Shantha, the medical profession was brought under the Consumer Protection Act. The result is that many doctors have stopped giving (even as family physicians) morphia or pethidine injections even in emergencies, despite the fact that, from the symptoms, the doctor honestly thought that the patient was having a heart attack.
Mrs. Nidhi Chopra, Principal of Aryans Institute of Nursing stated that medical practitioners should not be harassed under the garb of medical malpractice cases. Referring to the recent incident of the suicide of a doctor in Rajasthan where the said doctor had fallen victim to harassment allegedly by the relatives of patients, she emphasised the urgent need for laying down comprehensive guidelines for the protection of doctors who are being physically assaulted regularly on issues relating to the treatment of patients.
