The medical career is one of the oldest, and most humanitarian, professions. After Lord, doctors in India are considered as second life savers. In contrast to other cases of neglect, the quality of care rendered by physicians and hospital authorities is expected to be higher. The government and physicians must also take due precautions to prevent medical incompetence.
The Black law dictionary definition of negligence “ conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of statue or valid municipal ordinance or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.
As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes”. The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty (c)Cause in fact (d)Proximate Cause and (e) Damage. These are the basic elements of negligence, to prove the case of negligence all these criteria must be satisfied and in cases of medical negligence in India, the ambit of duty of care and proximate cause increases, as there are life involve in this situation”.
The principle of vicarious liability is based on a Latin maxim “qui facit per alium facit per se” which describes that the one who acts through another act in his or her own interest. The patient only requires diligent and proper care, if any of the staff of the hospital is negligent in the performance of their prescribed work, the hospital will be held liable on the negligent conduct of even borrowed doctors for specific performance of certain operations.”This principle was established in the case of ” Aparna Dutt .V. Apollo Hospital Enterprises Ltd”.
VICARIOUS LIABILITY of hospitals
Where there is a medical negligence, “the liability of hospitals may be direct or vicarious. The hospitals directly liable in a case of death or injury as a result of poor maintenance of hospitals, incompetent staff, misleading advertisement or other unfair trade practice, poor maintenance of records of medical treatment. The “vicarious liability principle is under the doctrine of respondent superior which implies that a person is liable for the tort committed by another person.
In a case Ready Mixed Concrete vs. Minister of Pensions, the court developed multiple test where it emphasized that all factors in the employment relationship status should be considered since there is no conclusive or definite test. In another case of Smt. Santra v. State of Haryana & Ors, the contention that the State is not vicariously liable for the negligence of its officers in performing the sterilization operation was not accepted in view of the above judgment of the Supreme Court of India.
In another case of Dr. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors, where patient had died following post partum sterilization, the Court found negligence on part of the defendants and liability was fixed on State Government, anaesthesiologists and other staff instead of holding only the State vicariously liable.”
MEDICAL NEGLIGENCE and hospitals
In Roman law, negligence is signified by the terms “culpa” and “negligentia”; as contrasted with “dolus” or wrongful intention. Care or absence of “negligentia” is “deligentia”. “The use of the word diligence in this sense is obsolete in modern English, though it is still retained as an archaism of legal diction”.
Negligence is culpable (punishable) carelessness – conduct which involves an unreasonably great risk of causing harm to another. It is the absence of such care as it was the duty of the defendant to use. It excludes wrongful intention in that no result which is due to carelessness can have also been intended and nothing which was intended can have been due to carelessness.
Wrongful intention (mens rea) implies design and purpose while negligence implies that somebody is acting carelessly and without that design. Medical negligence is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. As regards medical negligence, the legal position has been described in several leading judgments. Some of these are given below :
- Bolam v. Friern Hospital Management Committee :- “John Hector Bolam suffered from depression and was treated at the Friern Hospital in 1954by E.C.T. (electro-convulsive therapy). He was not given any relaxant drug, however, nurses were present on either side of the couch to prevent him from falling off. When he consented for the treatment, the hospital did not warm him of the risks, particularly that he would be given the treatment without relaxant drugs. He sustained fractures during the treatment and sued the hospital and claimed damages for negligence. Experts opined that there were two practices accepted by them: treatment with relaxant drugs and treatment without relaxant drugs. Regarding the warning also, there were two practices prevalent: to give the warning to the patients and also to give the warning only when the patients ask about the risks. The court concluded that the doctors and the hospital were not negligent.”
- Jacob Mathew Vs. State of Punjab:- “In this case a patient was admitted to CMC Hospital, Ludhiana. He felt difficulty in breathing. No doctor turned up for about 20-25 minutes. Later two doctors – Dr. Jacob Mathew and Dr. Allen Joseph – came and an oxygen cylinder was brought and connected to the mouth of the patient. Surprisingly, the breathing problem increased further. The patient tried to get up. The medical staff asked him to remain in bed. Unfortunately, the oxygen cylinder was found to be empty. Another cylinder was brought. However, by that time the patient had died. The matter against doctors, hospital staff and hospital went up to the Supreme Court of India. The court discussed the matter in great detail and analyzed the aspect of negligence from different perspectives – civil, criminal, torts, by professionals, etc. It was held that there was no case of criminal rashness or negligence.”
There are many more cases such as in Achutrao Haribhau Khodwa v. State of Maharashtra, Spring Meadows Hospital & Anr. v. Harjol Ahluwalia & Anr, A.S.Mittal v. State of UP, State of Haryana v. Santra, State of Punjab v. Shiv Ram, Poonam Verma v. Ashwin Patel.
MEDICAL PROFESSION – WHETHER UNDER CONSUMER PROTECTION ACT
In one of the earliest significant ruling in Vasantha P. Nair v. Smt. V.P. Nair, “the National Commission upholding the decision of Kerala State Commission had held that a patient is a consumer and the medical assistance was a service and, therefore, in the event of any deficiency in the performance of medical service the consumer courts can have the jurisdiction. It was further observed that the medical officer’s service was not a personal service so as to constitute an exception to the application of the Consumer Protection Act. ”
In Indian Medical Association v. V.P. Shantha and Ors, “the apex court has put an end to this controversy and has held that patients aggrieved by any deficiency in treatment, from both private clinics and Government hospitals, are entitled to seek damages under the Consumer Protection Act, 1986. A few important principles laid down in this case include:
1. Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service) by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of service as defined in section 2(1) of the C.P. Act. the apex court has laid down 12 important principles stating the law with definite terms in this case .
2. The fact that medical practitioners belong to medical profession and are subject to disciplinary control of the Medical Council of India and, or the State Medical Councils would not exclude the service rendered by them from the ambit of C.P. Act.
3. The service rendered by a doctor was under a contract for personal service rather than a contract of personal service and was not covered by the exclusionary clause of the definition of service contained in the C.P.Act.
4. A service rendered free of charge to everybody would not be service as defined in the Act.
5. The hospitals and doctors cannot claim it to be a free service if the expenses have been borne by an insurance company under medical care or by one’s employer under the service conditions.”
It is submitted that as the law on medical negligence appears to have been settled by the Hon’ble apex court, there is a need to have a settled legal position in other sectors as well so far as it relates to the consumer protection in India.”
 I (1991) C.P.J. 1685.
 AIR 1996 SC 550; the apex court has laid down 12 important principles stating the law with definite terms in this case .
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