The medical profession is considered as a noble profession because it helps in preserving life. Doctors are considered as the god of the land. negligence has become one of the serious issues in the country in recent years. Medical negligence is covered under Consumer Law, Criminal Law and also under Tort Law. It attracts civil liability under Consumer Law and Torts while under Criminal Law it attracts punishment (imprisonment, as well as fine, can be imposed). The requirements for establishing medical malpractice are often referred to as the “four Ds:” Duty, Deviation, Direct Causation and Damages.
Section 304A, IPC reads as, “ 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.” The term ‘Medical negligence’ consists of two words – medical and negligence. Negligence is solely the failure to exercise reasonable care. Medical negligence is no different. It is only that, in case of medical negligence, the doctor is the defendant.
In an action for negligence, the following essentials are required:
- The defendant owed a duty of care to the plaintiff.
- The defendant made a breach of that duty.
- The plaintiff suffered damage as a consequence of that breach.
A doctor owes certain duties of care to his patients, they are as follows:
- It is his duty to decide whether he wants to undertake the case or not,
- It is his duty to decide what treatment to give and;
- It is his duty to decide the administration of treatment.
If a doctor fails to perform the aforesaid duties it results in breach of duty and gives a right of action to the patient. A breach of duty is committed by a doctor when he does not perform the degree of care like a reasonable doctor.
The burden of proof of negligence generally lies with the complainant. The law requires a higher standard of evidence to support an allegation of negligence against any doctor. In cases of medical negligence, the patient must establish a claim against the doctor in order to succeed.
The consequences of legally cognizable medical negligence can broadly be put into three categories: (i) Criminal liability, (ii) monetary liability, and (iii) disciplinary action.
The Supreme Court in Dr. Suresh Gupta v. Govt. of NCT Delhi12 put the standard for fastening criminal liability on a high pedestal and required the medical negligence to be “gross” or “reckless.” Mere lack of necessary care, attention, or skill was observed to be insufficient to hold one criminally liable for negligence. It was observed in Dr. Suresh Gupta that mere inadvertence or simply a want of a certain degree of care might create civil liability but will not be sufficient to attract criminal liability.
The Hon’ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole4 had observed that every doctor must exercise reasonable “standard of care” that are set out in the profession. Any breach towards these duties shall hold him liable for medical negligence.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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