Introduction
Public awareness of medical negligence in India is growing. Hospital managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods.
After the Consumer Protection Act, 1986, has come into force some patients have filed legal cases against doctors, have established that the doctors were negligent in their medical service, and have claimed and received compensation. As a result, a number of legal decisions have been made on what constitutes negligence and what is required to prove it.
What is Negligence?
Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.
When does Liability arise ?
The liability of a doctor arises not when the patient suffers injury but when the injury results due to the conduct of the doctor, which was below reasonable care.
Causes of negligence
There are three basic causes of negligence:
1. The defendant owes a duty of care to the plaintiff
2. The defendant has breached this duty of care
3. The plaintiff has suffered an injury due to his breach
Types of Liability
1. Civil Liability
Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.
Persons who offer medical advice and treatment implicitly state and undertake to have the skill and knowledge to do as under:
• To undertake particular job.
• To decide whether to take a case or not ,
• To decide the treatment suitable for particular case
• To administer that treatment.
This is known as an “implied undertaking” on the part of a medical professional.
Certain conditions must be satisfied before liability can be considered.
• The person who is accused must have committed an act of omission
• The act must have been in breach of the persons duty
• It must have caused harm to the injured person.
2. Criminal Liability
A doctor can be charged with criminal negligence when a patient dies and it is proved that he died because of the malicious intention or gross negligence. In such cases, doctors should be able to prove that he used reasonable and ordinary case in the treatment of his patient.
Outcomes of Liability
The consequences of medical negligence can be classifies into three categories.
1. Criminal Liability
Section 304A of the Indian Penal Code of 1860 states that “whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.”
This means that if a person causes death of another person due to his negligent or rash behaviour, he will be liable for punishment.
2. Monetary Liability
Every doctor “has a duty to act with a reasonable degree of care and skill.” However, “since no human is perfect and even the most renowned specialist can commit a mistake in diagnosing a disease, a doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care.”
3. Disciplinary Actions
Another consequence of medical negligence could be in the form of imposition of penalties pursuant to disciplinary action. Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, made under IMC Act, 1956 governs the professional misconduct of medical practitioners. Medical Council of India (MCI) and the appropriate State Medical Councils can take disciplinary action by removing the name of the practitioner or suspending him.
Conclusion
There are strict laws against medical negligence in India. There are both assumptions and exception to the liability. The degree of punishment according to the harm caused is also known, but nothing comes with only positive results somewhere the rules lacks the strictness as still in some hospitals people try to hide the negligence by blaming on something else, some cases never comes to the court.
