Author: Yogita Ahlawat, 1st Year B.A.LL.B. student at Army Institute Of Law.
Negligence is the exercise to perform the duty of care, one which a reasonable man is obliged to perform. Medical negligence is negligence by a medical practitioner or doctor while operating and failure to perform care which one should have taken. It is an offence under IPC, tort and the Indian Contract Act.
As there is no direct answer to the question whether to blame a doctor during an extraordinary time of covid or not. Every coin has two sides to deal with so this research article aims to deal with both the situations in which doctors are liable for their negligent act done and the other in which they should be exempted under certain situations because one need to look into the condition or the situation under which doctors performed there duty before making them liable for the act.
In this era of global pandemic where doctors are proven boon to the whole world, are no less than frontline soldiers without arms on borders working day and night selflessly to save the lives of others despite knowing the fact it could prove fatal for them. With the most sacred profession on earth doctors are now believed to be next to god. Even the Gujarat high court recently stated that doctors are personification of gods on earth But what if such gods become negligent with their conducts? Can such negligence be excusable even when it comes to the life of a person and if yes, then to what extent? Before extracting answers to such questions it is important to take a deeper dig at the meaning of the word “Negligence”.
Negligence: negligence is civil wrong which is said to be committed when a person has either breached or has omitted his duty of care which he owes towards another due to which that person suffers some legal injuries. Person fails to exercise the standard care which a reasonable man could have exercised.
Origin of the word: the word negligence is derived from the Latin word negligentia meaning ‘failing to pick up’. IPC originally does not contain any provision related to negligence, in the year 1860 section 304 A was inserted. Section 304A talks about-
Causing death by negligence.—Whosoever became the cause of 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.
In the profession like that of medical one needs to require proper skill and understanding because a huge onus lies on the practitioner while operating on his patients as it’ the matter of life of one’s person.
Since the beginning of clinical practice the general public has taken the insight of clinical carelessness also. In India, since the initiation of the Consumer Protection Act, 1986 the topic of clinical carelessness turned out to be very conspicuous. The general population, patients, and the press including visual media got mindful, with this, came the issues of common carelessness as well as.
High Court decision in 1995 brought the clinical calling under the domain of the Consumer protection Act, 1986.
According to jurisprudence law in India, components of medical negligence are-
1. Reasonable degree of care.
2. Duty must be towards the patients
3. Act must be such which is either fatal or have proved or could have proved to be injurious to the patient’s life.
4. Causation- After proving all the above essentials the court will try to determine whether a medical practitioner is responsible for injury or death of the person or not.
Negligence cannot be proved in the case in absence of any of the above mentioned points
Reasonable degree of care defined –
It is the degree of caution that needs to be taken into consideration while operating upon the patients. One must be prudent in his actions; any failure to provide reasonable care could prove to be fatal to one’s life.
If the patient could not be saved by any chance despite taking all the reasonable degree of care and applying all the knowledge and skills within the ambit of doctors, then doctors are free from all the liabilities and doctors could not be blamed for any kind of negligence or malpractice.
Moreover, if a patient has consented to any kind of operation or any kind of medical practice on him which he knows deem to be injurious or fatal to his own life then in those situations also doctors can’t be made to fall for the ambit of malpractice or negligence .
A patient walking into the hospital for any kind of treatment is assumed to have given their implied consent to the possible complications that may arise while operating on him but this does not become the ground for setting doctors free from all his liabilities.
In the present condition where situations are all together being different than earlier ones, there is demand that medical practitioners should temporarily be absolved from all the liabilities and negligence.
HOW COVID CHANGED THE PRESENT SCENARIO.
Doctors are facing two potential hindrances while demonstrating causation:
1. Complex methodologies in diagnosing COVID and
2. The patient’s inherent ailments.
COVID test includes numerous methodology with different clinical and medical services organizations, it’s difficult for an aggrieved party to know the actual culprit of the mishappening being caused to him.
The issues further complicated when the patient suffered constant chronic diseases and had been going under continuous clinical consideration and treatment. In such cases, a definitive physical issue of the patient could be because of unexpected problems emerging from the underlying chronic illness. As stated above, there could be various reasons for the aggrieved party’s harm, causation could be established only if the plaintiff shows that harm suffered by him is due to breach or negligence of duty on part of the defendant.
Moreover, not only these doctors are facing issues with lack of proper equipment and treatment to tackle the ongoing pandemic as there seems to be proper medication to the present ongoing disease, all this needed to be considered before making them liable.
Not just hospitals but also states are now unable to manage the present ongoing situations so solely burdening and blaming doctors for any kind of negligence will be wrong on their part.
Patients need to have trust before undergoing any kind of medical treatment and that is being respected by the professionals but ongoing covid situations changed this outlook and approach.
Now the question arises who all fall in the ambit of getting immunity and who all are out of such ambit.
All the professionals who are working in usual environment as earlier eg. Those working as anaesthetists, operationalists, respective specialists will not be granted any kind of protection from liabilities because it is outside the circle of unnatural circumstances being faced and is under work as previously. Also all those who are involved in illegal profiteering in the name of calamity are also outside this circle of protection.
Clinical carelessness cases are on the ascent mostly due to the quickly multiplying number of medical services suppliers with insufficient infrastructure facilities, and somewhat inferable from the deficient abilities and obsolete information on medical services experts. The laxity of the managing body – the Medical Council of India – in implementing rigorously settled conventions with respect to diagnostics and therapy has exacerbated the situation. The controller is frequently found setting up defenses and securing medical services experts of their bad behavior. Accordingly, patients and their families are progressively looking for responses to legal cures.
As seen in the present cases death is due to lack of resources eg. Hospitals are lacking sufficient oxygen supply that needs to be provided even if the government fails to provide the same. It should be taken into consideration that if death is due to lack of resources which doctors must be supplied with then in that case also doctors are not responsible.
Also, Most of the time it is seen that a patient is brought late to the hospital and in very serious conditions, that the condition becomes irrecoverable. It becomes a daunting task for the treating doctor to save the patient from such a condition, which leads to the perception that there was negligence on the part of the doctor. This fact can be proved from the study conducted as out of the total cases, 52% cases died within 24 hours after being admitted to the hospital, whereas 32% patients survived for a period of 24-72 hours and 16% deaths were observed in patients surviving initial 72 hours.
Analytical data of medical negligence cases in India
There is a new- expansion in number of clinical carelessness cases in India. This might be due to awareness among people India records approximately 5.2 million cases a year, ranging from incorrect prescription, wrong dose, wrong patient, wrong surgery and wrong time to wrong drug.
Out of the total instances of death purportedly because of clinical carelessness, 83% cases were known to be treated in Government Hospitals or Institutions. Private clinics contributed just 3% of all out passings. Government medical clinics in India are assigned as the tertiary consideration place’s because of cutting edge innovations in medical care so patients with life threatening intricacies are being ship off tertiary communities for therapy which are well on the way to bite the dust.
Would Failure to Adhere to Government Guidelines be Treated as Negligence?
It is of most extreme relevance to keep up to date with the most recent government rules and territorial polices, and follow them wisely. The clinical expert and the organization is compelled by a sense of honor to be set up to manage all inevitabilities emerging from conceding or treating a COVID-19 suspect or a positive patient. The confirmation or treatment ought to possibly be performed if the clinic is approved to treat COVID-19.
Inability to stick to the rules would sure welcome the anger of the public authority bodies and unfriendly legitimate results.
What after negligence has been committed-
Burden of proof – the onus for proving negligence completely lies on the complainant. In order to succeed, the complainant must establish a claim against the doctors for negligence.
Plaintiff has to establish fault of the doctor or hospital. In the case of Bolam v Friern Hospital Trust It’s a famous case in relation to professional standards, the Bolam test emerged from this case which is frequently being referred to as medical negligence cases.
Bolam Test: Also known as the test of medical negligence in Indian courts have stuck to the test laid down in the Bolam case and have clung to something very similar in all clinical carelessness prosecution. This test is one that is applied to a wide range of carelessness and not just clinical carelessness. There are three standards’ that must be satisfied for the test to show a positive outcome, they are-
a. It should be demonstrated that the there is a standard and ordinary practice
b. It should be demonstrated that the protector has not received that training
c. It should be set up that the course the specialist embraced is one which no expert man of standard ability would have taken on the off chance that he had been acting with normal care.
Res Ipsa Loquitur in a Medical negligence cases:
This maxim connotes things speak for itself. Courts built up the idea of res ipsa loquitur to manage cases in which the real careless demonstration can’t be established or proved, yet undoubtedly it is known that the injury was brought about by carelessness. This regulation was first perceived on account of a man who was struck and seriously harmed by a barrel that rolled from warfare. Attorney concluded that the falling of the barrel from the window was in itself res ipsa loquitur and could only happen when someone was negligent with their conduct.
In the case Calcutta Medical Research Institute vs Bimalesh Chatterjee, the court held that the onus of proving proofs against any kind of negligence and deficiency in service by the doctors was clearly on the complainant.
Medical negligence claims had undoubtedly been affected by the corona virus despite that the society of medical injury lawyers are working in these hard times to allow claims.
No two clinical malpractice cases are actually similar. Nonetheless, there are rules for the amount somebody ought to get because of a case.
Thus, contingent upon the seriousness of the case, one can be granted anything from low compensatory value for minor difficulties, for example, those because of fractures, right to a huge number of compensation for complex cases, for example, those including genuine birth wounds like cerebral paralysis.
As a part of the compensatory award claimant will be awarded damages under two heads. Firstly under general damages and second special damage . Under general damages any kind of injuries suffered i.e any pain or suffering in person comes under these kinds of damages and any kind of financial damages being suffered as a result of injuries will fall in the special damages. After due calculations aggrieved will be awarded with damages mentioned in the provisions.
One can seek redressal under consumer forums that have been created under different levels. National, state and district consumers redressal commission are sought to provide redressal under COPRA,1986 under this there is a particular time limit within which redressal is disposed of.
There are certain provisions laid down in the constitution to safeguard the patients rights few of them are listed below.
If the practitioner found to be guilty he will be held liable under followings provisions-
Under Section 304-A of the Indian Penal Code, 1860, a person will be liable for any kind of rash and negligent act amounting to culpable homicide being done and shall be punished with imprisonment for a term which may extend to two years or with fine or both.
under Section 337 of the Indian Penal Code, 1860, The person will be awarded with imprisonment which could be extended to six months or with fine which may, if an act done by person is such that human life or personal safety of others comes under danger.
According to Section 338 of the Indian Penal Code, 1860- if a person commits rash or negligent act which became the reason for human life or personal safety of others comes under danger then the person will be punished with imprisonment for a term which could extend to two years along with fine.
Defences Available against plaintiff:
· Section 80 of the Indian Penal Code, 1860, this sections states that act will not constitute any offence if such act which happens without any criminal intention resulting in accident or misfortune if the act done is lawful and by lawful manner and also by lawful means taking into consideration proper care .
· According to Section 81 of Indian Penal Code, 1860- act will not constitute an offence if the act done is likely to cause harm and such act being done had no prior intention of causing harm and is done under good faith in order to avoid greater possible harm. 
· Under Section 88 of the Indian Penal Code, 1860- if an act is being performed by a person in good faith lacking prior intention in causing such harm even if there has been knowledge that risk is involved in doing such act and there has been consent to the same by the patient then no liabilities arise.
Conclusion And Suggestions
Clinical carelessness cases are on the ascent because they are quickly multiplying the number of medical services suppliers with insufficient framework, and part of the way attributable to the lacking abilities and obsolete information on medical services experts. The Medical Council of India in authorizing rigorously settled conventions in regards to diagnostics and therapy has exacerbated the situation. The controller is regularly found setting up defenses and ensuring medical services experts of their acts, patients and their families are progressively looking for response to legal remedies.
Even the courts are failing to provide uniform equity attributable to due absence appropriate rules. Subsequently, opposing and clashing decisions are given by different courts including the Supreme Court.
A new decision by the Supreme Court has adequately weakened the limit for fixing responsibility in clinical carelessness cases by noticing that where a medical care proficient may have made a wrong analysis or diagnosis, a similar won’t be equivalent to medical negligence.
Before any actions against the medical practitioners there need to be standard guidelines that need to be established and revised according to the situations so that no innocent remain outside ambid of legal assistance at the same time there is need to save doctors from unnecessary liabilities and claims.
Although the current situations are extraordinary it seems to be unjustified to put absolute liabilities on medical practitioners. There is a need to set a Minimum standard of care that should be prescribed by the government and ICMR (Indian Council of Medical Research) for patients infected with covid.
Following suggestions could work out in the present situation –
1. Discharge policies should be revised with regard to infected patients
2. Present situations should be considered and doctors should be held liable only for criminal negligence or gross negligence, minor ones could be avoided for the time being.
3. Strict requirement of Sections 191, 192 of the Indian Penal Code, 1860 in clinical carelessness cases.
4. A board of trustees of the Supreme Court and the Medical Council of India (MCI) be established to dove-tail the different resolutions of law and the rules gave by the MCI and issue thorough rules for arbitrating clinical carelessness cases
5. Specialized courts can be set up to arbitrate clinical carelessness cases, or on the other hand, the morals panel of the National Medical Commission be headed by a serving/resigned Supreme Court Judge.
There is a need for a well established mechanism to look into the current situation and matters being arising, critical analysis needs to be done before any actions and judgement are granted.
In the midst of the vulnerability made by the COVID-19 pandemic, the legal executive is the sole symbol of desires to change the authentic worries of residents suffered by the absence of sufficient clinical facilities and the rising cases of clinical carelessness. There is expectations that essential steps will be taken by the Supreme Court, to save the confidence and any expectation of individuals in judicial proceedings.
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- LEGALSERVICESINDIA.COM, http://www.legalserviceindia.com/legal/article-3564-act-of-negligence.html. (last visited May 5, 2021) ↑
- Srishti Chawla, Negligence in law of Torts, IPLEADERS.IN, https://blog.ipleaders.in/negligence-in-the-law-of-torts/, (last visited May 5, 2021, 12:41pm). ↑
- Id. ↑
- Lydia Kerketta, Medical Negligence: A specific Tort, LEGALSERVICESINDIA.COM, ,http://www.legalservicesindia.com/article/1898/Medical-Negligence:-A-Specific-Tort.html (last visited May 5, 2021, 6:30pm) ↑
- M. S. Pandit and Shobha Pandit, Medical Negligence: Coverage Of The Profession, Duties, Ethics, Case Law, And Enlightened Defense – A Legal Perspective, NCBI.NLM.NIH.GOV, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/ (last visited May 5, 2021, 6:21 pm) ↑
- Chaudhary BL, Singh RK, Singh S, Shukla PK. Recent trends of medical negligence – An autopsy based study at lady hardinge medical college, New Delhi. IP Int J Forensic Med Toxicol Sci 2020;5(2):35-38, https://www.ipinnovative.com/journal-article-file/11882. ↑
- Id. ↑
- Bolam v Friern Hospital Management Committee  1 WLR 582 ↑
- CORNELL.EDU, https://www.law.cornell.edu/wex/res_ipsa_loquitur (May 5, 201). ↑
- Calcutta Medical Research Institute vs Bimalesh Chatterjee, 1 (1999) CPJ 13 (NC) ↑
- Ind. Pen. Code, §304 (A) ↑
- Ind. Pen. Code, § 337. ↑
- Ind. Pen. Code, § 338. ↑
- Ind. Pen. Code, § 80. ↑
- Ind. Pen. Code, § 81 ↑
- Ind. Pen. Code, § 88. ↑