INTRODUCTION
In recent times, medical negligence has become one of the most severe issues in the world. In India, the medical profession is such an honorable profession.
Still, sometimes misconducts happen by doctors or surgeons by not taking enough care during the treatment of patients, which can lead to partial or impartial impairment or death of the patient.
Many people in the country lose their lives due to medical negligence. It is a serious issue to be concerned about. Practitioners or doctors must take care of patients to avoid this kind of mishappenings.
WHAT IS MEDICAL NEGLIGENCE?
In everyday use, the word negligence means carelessness. In legal language, the word negligence means the failure to exercise the care a person should have exercised in certain circumstances.
Medical negligence refers to negligence in the context of the medical profession. A simple lack of care by a professional doctor or practitioner can lead to the patient's death or any other misery that can adversely affect the patient's life.
For instance, if a cook/chef makes a mistake while making food, this will lead to a bad taste in food, but if a doctor makes a mistake, there will be the risk of losing their life. As a doctor, one should have to be careful. Any negligence can lead to mishappening.
Not only doctors, but this negligence can also happen by any nurse, chemist, physician, or medical practitioner.
EXAMPLES
- Expired medicines
- Lack of concentration during surgery
- Not giving proper medical advice or diet charts
- Leaving any object in the body during surgery
ESSENTIALS THAT CONSTITUTE THE ACT OF MEDICAL NEGLIGENCE
Medical negligence has liability under civil and criminal law. Negligence is a breach of Duty caused by an omission to do something. A wheat producer must ensure that the wheat he sells is of good quality.
So medical professionals or surgeons owe the Duty to their patients.
These duties are:
The Duty of care in finding out whether a unique case or not.
The Duty of care in deciding which treatment a patient is to receive in a specific case.
The Duty of care in administering the treatment property.
Dr. Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr, 1969 AIR 128, 1969 S.C.R. (1) 206 explains the above-mentioned duties.
SOME IMPORTANT CASES OF MEDICAL NEGLIGENCE
Poonam Verma v. Ashwin Patel and Ors, 1996 AIR 2111,1996 SCC (4) 332
A professional medical practitioner entitled to practice homeopathy only prescribed an allopathic medicine to the patient. It resulted in the death of the patient. The doctor was held to be negligent and liable to the wife of the dead patient. He was held under a statutory duty not to enter the field of another medical system. His negligent misconduct amounted to negligence per se actionable in civil law.
Dr . N. Ummar v. K.M. Hameed, A.I.R. 2014 (N.O.C.) 24 (ker.)
A patient was wrongly diagnosed with tuberculosis while suffering from cancer. As a result of the wrong diagnosis by pathology, the patient died. The pathologist was held liable for his misconduct, and the Kerala high court said it was a clear medical negligence case.
Rajmal v. State of Rajasthan, A.I.R. 1996 Raj. 80
Petitioner's wife was being operated on for a laparoscopic tubectomy operation at a primary health center. On 2nd April 1989, while she was being operated on, she died. It was found that the apparent cause of death was lack of medical facilities and equipment and experienced and trained doctors. The state government was held liable with rs. 1 lac to the deceased's husband.
Jasbir Kaur v. The State of Punjab, A.I.R. 1995 P. & H. 278
A newly born baby was found missing from the govt. Hospital in Amritsar named Shri guru teg bahadur hospital. The child was found in the wash basin of the hospital bathroom in bleeding condition, and one eye was removed from the eyeball.
The hospital staff and authorities said that the child was taken away by a cat, who injured him. The hospital was held liable, and the compensation of Rs. 1 lac Was given to the child's parents.
LIABILITIES UNDER MEDICAL NEGLIGENCE
CIVIL LIABILITY: claim for damages in compensation is a civil liability against medical negligence. Suppose any professional doctor or medical practitioner makes any medical negligence during the treatment or under the supervision of experts; they are held liable for the wrongly committed. They are liable to pay for the damages.
CRIMINAL LIABILITY: section 304A of the Indian penal code states that "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." So, medical negligence is punishable under criminal liability.
RIGHTS OF PATIENTS
Article 21 (Indian Constitution): Article 21 of the Indian constitution talks about protecting life and personal liberty.
It states that no person shall be deprived of their life or individual freedom according to the law.
Article 32 (Indian constitution): this article states that if any fundamental right is violated, every citizen has the right to appeal directly to the supreme court.
Article 41 (directive principles of state policies) refers to certain cases' right to work, education, and public assistance.
Article 42 (directive principles of state policies): this article talks about provisions for just and humane work conditions and maternity relief.
Article 47 (directive principles of state policy): refers to the Duty of the State to raise the level of nutrition and the standard of living and improve public health.
Section 52 (Indian penal code): states that Nothing is said to be done or believed in "good faith," which is done or considered without due care and attention.
Section 80 (Indian penal code) states the Accident in doing a lawful act. This section talks about anything lawful and done by Accident without any criminal intention, which is not an offense under I.P.C.
Section 81 (Indian penal code): states that Act likely to cause harm but done without criminal intent and to prevent other harm.
CONCLUSION
Medical negligence is misconduct done by doctors or practitioners that leads to loss of
life or any other misery that can make them suffer. It can be done in any form, like leaving objects in a patient's body during surgery, giving them expired medicines, or treating them incorrectly. Some remedies or liabilities are under civil law and criminal law against medical negligence.
Some more important cases under medical negligence are:
Gian Chand v. Vinod Kumar Sharma, A.I.R. 2008 H.P. 97
Sobha mal Jain v. the State of Rajasthan, A.I.R. 2006 R.A.J. 66.
Ram Bihari Lal v.dr J.N. Srivastava, A.I.R. 1985 M.P. 150 (D.B.), reversing the single bench decision, A.I.R. 1982 M.P. 132.
Satish Chandra Shukla v. Union of India, 1987 A.C.J. 628.
Venkatesh Iyer v. Bombay hospital trust, A.I.R. 1998 Bom.373.
REFERENCES:
1969 AIR 128, 1969 S.C.R. (1) 206
1996 AIR 2111,1996 SCC (4) 332
A.I.R. 2014 (N.O.C.) 24 (ker.).
A.I.R. 1996 Raj. 80
A.I.R. 1995 P. & H. 278.
A.I.R. 2008 H.P. 97
, A.I.R. 2006 R.A.J. 66.
A.I.R. 1985 M.P. 150 (D.B.), reversing the single bench decision, A.I.R. 1982 M.P. 132.
1987 A.C.J. 628.
, A.I.R. 1998 Bom.373
This article is written by Gaurishtha of Guru Gobind Singh Indraprastha University.