When a patient approaches a doctor, it is out of trust that he possesses such knowledge and skills to cure the medical problem, and this leads to the formation of a contract between both of them. This contract imposes some duties on the doctor towards his patient and such patient has remedies available to him against any act of negligence on part of the doctor, not only under civil or criminal law but also under the Consumer Protection Act, 1986, as a consumer seeking redressal of grievances from the consumer courts. So, it is important to be aware of the duties of medical practitioners and also of the rights and available remedies against any negligence on the part of the doctor, in order to avail such services ( of care) from the medical practitioner and get his grievance redressed, in case of any breach of duty on the part of the doctor, through the remedies.
What is Medical Negligence
Medical negligence, though not a term defined anywhere in the enacted Indian laws it may be defined as any wrongful act or omission by a medical practitioner that diverges from the standard of care that is expected by him. Here, ‘standard of care’ refers to what a prudent medical practitioner would or would not do under given circumstances. In a case, the Kerala high court observed that in the case of a medical practitioner, negligence refers to the failure to act as per the standards of a reasonably competent medical practitioner at the time. There may be one or more proper or reasonable standards of care, and if the medical man conforms to any of these standards, then it would not be said that he was negligent ( Moni v. State of Kerala ). As per a study by the Harvard University of 2018, in India, about 50,00,000 die every year as a result of medical negligence ( Business Standard ). Medical negligence may also be referred to as medical malpractice.
Components that Constitute Medical Negligence
An act of a medical practitioner to be called medical negligence, following main components, need to be present-
- There must be a legal duty towards the patient- when a person approaches a medical practitioner, he does approach with a trust upon his skills and knowledge required to cure the problem. It’s not every time necessary to enter into a written contract. Even in the absence of the said contract, there is an implied contract between them. The doctor has a legal duty to exercise all due diligence as expected from him in the ordinary course.
- Breach of the legal duty- when there exists a legal duty of the doctor to exercise reasonable care and caution while dealing with his patient and he fails to exercise the same then it is a breach of the legal duty and would amount to negligence. Such caution is judged at par with what a medical practitioner of ordinary prudence would do or would not do in that or similar circumstances.
- Damages caused by the breach- when such breach of the legal duty leads to any kind of injury or damage to the patient, then the doctor/hospital, as the case may be, is liable for compensation or punishment under civil law or criminal law.
Negligence as a tort
According to Winfield, negligence as a tort is a legal duty’s breach that requires care which ends up in damage, undesired by the defendant to the plaintiff. A tort is a civil wrong. The duties are imposed by law and are owed to the people at large i.e., in rem. Failure to perform such duty would amount to negligence under civil law.
Negligence as a crime
The difference between negligence as a tort and negligence as a crime is that in tort, negligence is determined on the extent of loss caused to the plaintiff while in criminal law, we see that of what degree or amount there has been negligence on part of the medical practitioner. It is the person claiming upon whom the burden of proof lies. In criminal law, there is also a requirement of a guilty mind.
Negligence under Consumer protection legislations
The test under the consumer protection laws is the failure to exercise skill and care as that is ordinarily expected of a medical practitioner.
Liability arising from medical negligence are-
- Civil liability- Hospitals or medical practitioners may be made liable to pay damages in the form of compensation when there is any breach of duty of care by such hospital or medical practitioner. Senior doctors may even be held vicariously liable for the negligence of the juniors in the given circumstances. In Mr. M Ramesh Reddy v. State of Andhra Pradesh, the hospital authorities were held liable to provide a compensation of Rs 1 lack because the bathrooms in the hospital were not kept clean that led to the fall of an obstetrics patient that caused the patient’s death.
- Criminal liability- A criminal case may also be filed against such negligence. For example, when a patient dies after treatment, u/s 304A of the Indian Penal Code, a criminal case may be filed if death is caused by rash or negligent act, punishment for which is imprisonment up to 2 years or fine or both. If a patient develops an infection during his treatment due to the negligence of a hospital or medical practitioner, even then the hospitals can be charged for such negligence if there was a lack of reasonable care. In Dr. Suresh Gupta case, it was held that when a patient dies due to medical negligence, the doctor is liable in civil law whereas when the negligence is so gross and his act was as reckless as to endanger the patient’s life, criminal law for offence u/s 304A, IPC applies.
- This conduct of negligence may also be brought under the Consumer Protection Act, 1986. Medical care can be included within the meaning of the term ‘service’ in this Act (Section 2(1)(i)). Thus, a person availing such a service is a consumer. The same was held in the case of Indian Medical Association v. V. P. Santha & others.
Types of Medical Negligence
Though there can be medical negligence in various forms the following are a few common types mentioned –
- Misdiagnosis– when the medical practitioner is not able to correctly diagnose symptoms or say when there is an error in such diagnosis, such diagnosis may be referred to as misdiagnosis. For example, misdiagnosis of diabetes, failure to diagnose appendicitis, cancer, etc. And then if there is no proper treatment provided due to the same reason, then the medical practitioner may be held liable for the injury.
- Delayed diagnosis– Sometimes delayed diagnosis can also be a form of medical negligence. The test is if another doctor would have reasonably diagnosed the same condition in a given time. It may be negligence because such a delay may cause injury to the patient. It may include- delay in diagnosis of cancer, appendicitis, heart attack, etc. Even the hospitals may be held liable in certain cases like when there is a delay in diagnosis by the doctor because of his workload.
- Surgical error– Surgical error may cause severe damages/injuries to the patient as such negligence may result in further surgeries, or any kind of infection or even death. Wrong-site surgery is also a type of surgical error. It means operating on the wrong organ.
- Foreign object left in a patient– There are cases where the doctor due to his negligence while performing any surgery would leave a foreign object like gauze or anything in the body of the patient. This may lead to infection or even the death of the patient.
- Unnecessary surgery– There are times when the doctor chooses surgery over other conventional treatments which maybe because of its expediency, ease in comparison to the alternatives, or sometimes may be due to their own monetary advantages. Some of the examples are C-section, pacemaker insertion implantation, etc. If a review by Albert Einstein Medical Center (Philadelphia) is to be believed, around 20% of pacemaker surgeries performed are unnecessary ( Source ). When such surgery results in any kind of damage or injury to the patient which could have been avoided by opting for other alternatives and even then having good results, then it may be called an unnecessary surgery and he may be made liable for such medical negligence.
- Negligence in the patient’s treatment follow up– After a treatment, it’s the duty of the doctor who did treat the patient to follow up. But many times it can be seen that the doctor would call the nurse for the same which isn’t right. This is so because a nurse is not really that qualified for such decisions. Therefore, when a doctor orders for treatment and then no follow up happens, then it also may be a kind of medical negligence on the doctor’s part but only in case when such treatment results in any issue for the patient like any side effects or infection, etc. The doctor is liable in such a case.
Remedies to the sufferers
There are remedies available to the patients against any medical negligence, that caused injury or damage to them, in various laws. Following are the remedies –
- Punitive action
- Disciplinary action
- Recommendatory action
Let’s deal with these remedies in brief-
a) against the doctor or hospital by whom medical negligence is committed complaint can be made seeking monetary compensation. Complaints can be filed before the civil court under the law of torts or law of contract. If the complaint filed is under the law of torts, the plaintiff needs to prove negligence with the cogent pieces of evidence. If the complaint filed is under the law of contract, the plaintiff needs to prove that there existed a contractual obligation for some consideration between the plaintiff and defendant and if no service has been hired by the patient from such doctor or hospital or staff then the suit cannot be brought under the law of contract.
b) complaint may also be made before the concerned High Court under the constitutional law. Though there is no specific right or remedy available to the patients in the Indian Constitution by Article 21 which is Right to life and personal liberty, interpretation of guarantee of the right to health and medical treatment can be done, which is meaningless without the freedoms with certain restrictions under Article 19 of the Constitution.
c) a complaint may also be made before the Consumer Courts under the Consumer Protection Act, 1986 u/s 2(1)(i) of the Act, the medical care provided by the hospitals, doctors, ate included within the meaning of the term ‘service’ as held in the case of Indian Medical Association v. V.P. Santha & others ( Indian Kanoon ). It shall be noted that ‘service’ shall not include the free services or the services under a contract of personal service. Thus, it implies that a patient seeking medical care is a consumer, essentials(to be a consumer) being:
i) the patient must have hired a service;
ii) service hired must have been rendered to the patient; and
iii) for such service, the patient must have paid or have promised to pay some consideration.
The aggrieved thus can seek remedy under the said Act. The remedy under this Act is provided by the consumer Courts through its three-tier quasi-judicial bodies, that are: district forum, State Commission, and National Commission. ( Source )
- Punitive action– Criminal compensation may be filed under the Indian Penal Code. Section 304A of the said Code deals with criminal negligence. In order to impose criminal liability under this section, it is necessary that death has been caused as a result of the negligence of the accused. In other words, there must be a direct nexus between the death and such negligence.
A doctor can be punished under this section for causing the death of a person by doing any rash or negligent act (not amounting to culpable homicide). Mere lack of necessary care would not be enough to charge the accused under this section but the standard of negligence must be so high that it can be described as ‘gross negligence’ or ‘recklessness’.
- Disciplinary actions– A compensation can be filed also before the bodies which govern the medical practitioners. Such bodies are the Indian Medical Council or State Medical Council. These governing bodies have been empowered with disciplinary control over medical practitioners.
- Recommendatory action– A compensation can be filed also before the human rights commissions (national or state level) for violation of human rights for compensation. Every person enjoys various human rights and these commissions can hold the states responsible for such violation of human rights. And following such complaint, investigation and proceedings can be initiated by the concerned commission. These commissions are also empowered with all the powers of a district court.
Today, when the world is going through a pandemic that is continuously causing deaths of many, it is and has been always necessary, required to be aware of one’s legal rights, especially in case of medical. Everybody should be aware of their rights and the liabilities of the medical practitioners and the hospitals, whether private or government. This short article aims at the briefing as to what medical negligence is and what are the liabilities of the doctors or the hospitals, as the case may be, and what are there remedies available to other patients against the negligence of the doctors. Thus, any kind of negligence by a doctor or hospital while performing their legal duty is medical negligence if the patient suffers any injury or damage as its consequence. For such negligence, remedies are available to the sufferers and the doctors or the hospitals are liable under various laws.
- Indian Penal Code, 1860, s 304A.
- Consumer Protection Act, 1986, s 2(1)(i) .
- Types of medical negligence, Nolo: LawFirms, https://www.lawfirms.com/resources/medical-malpractice/medical-malpractice-injuries/types-medical-negligence.htm.
- Medical negligence and remedies to the patients, Astrea Legal Associates, https://astrealegal.com/medical-negligence-and-remedies-to-the-patients/
Ku Richa Singh | Law College Dehradun, Uttaranchal University