JOIN USOf late, the growing number of medical negligence cases and the concerns they raise are becoming important subjects of debate.
With the advancement in medical technology, improved awareness on patient’s rights, informed consent and medical records, medical jurisprudence is evolving as an essential subject that the medical and legal fraternity should keep abreast of.
Public awareness of medical negligence in India is growing. Healthcare providers are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their health care services. It is important to understand that even after 70 years of independence, no Medical Negligence Act is enacted in the country.
Currently, the district level and the state level consumer forums are first approached by the victims of medical negligence. But the absence of a non-medical person in consumer forums to understand technical medical terms has been a concern. Though the Medical Council of India (MCI) and the State Medical Councils could be approached, the Medical Council Act, 1956, has no provision to penalise a negligent doctor.
At the most, the medical councils may temporarily or permanently cancel the registration of a doctor if he or she is found guilty of serious medical negligence. Medical councils do not have the power to order compensation to the
victim.
The Human Rights Commission could be approached if the medical service provider is the government. Legally, medical negligence is defined as ‘lack of reasonable care and skill or willful negligence on the part of a doctor in the treatment of a patient whereby the health or life of a patient is endangered or damaged’.
A person who alleges negligent medical malpractice must prove four elements: 1. a duty of care was owed by the physician; 2. the physician violated the applicable standard of care; 3. the person suffered a compensable injury; and 4. the injury was caused in fact and proximately caused by the substandard conduct.
In medical negligence litigations, the onus of proving medical negligence is on the victims. Often, expert legal assistance is lacking and the legal fraternity is unaware of the complexities of medical negligence cases. Most lawyers hesitate to take a medical negligence case since such cases are complex, expensive and outcome is never assured. Good cases are lost due to bad advocacy.
Ordinarily, criminal cases are not filed for medical negligence cases. There are laws to safeguard a medical practitioner. Section 88 of the Indian Penal Code lays down that an act not intended to cause death, done by consent in good faith for person’s benefit, does not constitute an offence.
A private complaint against a doctor may not be entertained unless the complainant produces prima facie evidence before the court, in the form of a credible opinion of another competent doctor, to support the charge. Often, the victims fail to produce a doctor’s certificate against his or her own colleague.
Criminal litigation
But the doctors and the hospitals do not have absolute immunity from criminal litigation if there is a gross negligence. After the Consumer Protection Act, 1986, came into effect, a number of patients have filed cases against negligent doctors and have received compensation. Doctors “have a duty to act with a reasonable degree of care and skill”. A breach of this duty gives a patient the right to initiate action against the negligent doctor.
In some situations, the complainant can invoke the principle of res ispa loquitur or “the thing speaks for itself” where no proof of negligence is required other than the accident itself.
This principle comes into operation only when there is proof that the occurrence was unexpected, that the accident could not have happened without negligence and lapses on the part of the doctor, and that the circumstances conclusively show that the doctor and not any other person was negligent. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor.
Considering the limitations of consumer forums and medical councils in dealing with cases of gross medical negligence there is an urgent need for the enactment of a Medical Negligence Act mainly to safeguard the interests of helpless victims.
It is also suggested to have separate medical tribunals for conducting thorough enquiries and speedy disposal of medical negligence cases in the interests of patients.
(The writer is a Bengaluru-based professor of economics and consultant lawyer)