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
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 is life involve in this situation.
Test for Medical Negligence:
Furthermore, Indian Courts have consistently, in the past, cited the Bolam test as a point of reference to decide medical negligence disputes. The Bolam test was first recognized in an English law case Bolam vs. Friern Hospital Management Committee. In this case, the patient/claimant was not administered a relaxant drug to avoid risking death. However, the claimant suffered a serious fracture as a consequence. The claimant argued that the doctor breached the duty of care by not using the relaxant drugs. However, it was held that the doctor did not breach the duty of care. The Court held that the medical professional is not negligent if he acted in accordance with the protocol accepted as proper by skilled men exercising and professing to have that special skill, merely because another doctor would have taken a contrary view.
Lately, there has been a shift in the position of the Indian Courts which have highlighted the deficiencies of the Bolam Test and observed to revise the factors set out in the Bolam Test.
Burden of proof:
A medical professional or hospital shall be held liable for all actions against the patients where they have not taken proper standard of care and it has resulted in suffering on part of the patient. The burden of proof shall lie on the complainant to prove a case of negligence. They have to first establish that there was a duty of care on part of the accused and that, there was breach of such duty. However, in some case the courts use the principle of “ipsa loquitur” which means things speak for itself. In such a scenario, it is presumed that the medical professional has acted beneath the set standard of care causing negligence. Under this principle it is presumed that the injury could not have been caused from anything but the negligence on part of the medical professional. In practice, the use of this principle by the judge would mean that the negligence has already ensued. Here the burden shifts onto the doctor to prove the case otherwise.
- Medical Council of India: An aggrieved party can file a complaint of negligence against a medical practitioner to the concerned State Medical Council, however, the Indian Medical Council Act, 1956 does not give them the power to compensate the aggrieved party.
- Civil liability: Civil liability usually includes the claim for damages suffered in the form of compensation. If there is any breach of duty of care while operating or while the patient is under the supervision of the hospital or the medical professional, they are held to be vicariously liable for such wrong committed. And are liable to pay damages in the form of compensation. At times the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors. An aggrieved person can approach the consumer courts to file a case against the accused person and the hospital service provider will be considered as deficiency under section 42(11) of the new Consumer Protection Act, 2019.
Any aggrieved person can claim damages for medical negligence against a doctor or a hospital.
The conduct of medical malpractice was brought under the Consumer Protection Act, 1986, due to the landmark case of the Indian Medical Association vs. V. P. Shantha & others, The judgment in this case defined medical care as a “service” that was covered under the Act, and also clarified that a person seeking medical attention may be considered a consumer if certain criteria were met.
-The service provided was not free of charge or for a nominal registration fee;
-If free, the charges were waived because of the patient’s inability to pay;
-The service was at a private hospital that charges all patients; or
-Any service rendered which was paid for by an insurance firm.
- Criminal liability
There may be an occasion when the patient has died after the treatment and criminal case is filed under Section 304A of the Indian Penal Code for allegedly causing death by rash or negligent act. According to S. 304A of the IPC, whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to two years, or by fine, or both. However, the court have observed that in a matter of negligence where a criminal case is being perused, the element of “mens rea” must be shown to exist. To check for criminal liability, it must be clearly shown that the accused did something or failed to do something which in the given circumstances no other medical professional in his ordinary senses and prudence would have done or failed to do.
Medical negligence litigation is among those grey areas of law that has strong and ardent proponents on both sides. Instead of providing complete legal immunity, a more pragmatic approach of allowing civil liability claims against the negligent doctor must be adopted where they may not be held liable for criminal negligence. Moreover, swift and transparent mechanism must be devised by Central and State Governments to decide those civil liability claims. Importantly, comprehensive guidelines laid down by the Hon’ble Supreme Court in consultation with all the stakeholders should be issued for adjudication of the medical negligence cases.
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