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A GUIDE TO MEDICAL NEGLIGENCE AND DOCTORS LIABILIT...

MEDICAL NEGLIGENCE CASES AND DOCTOR’S LIABILITY In my recent blog I shall be discussing the topic “Medical Negligence and Doctor’s Liability” My blog shall cover the following topics with in depth analysis for the readers to understand the essentials of the same. 1.     Introduction 2.     What is Medical Negligence 3.     Cases on Medical Negligence 4.     Doctor’s Liability in Medical Negligence 5.     Miscellaneous 6.     Conclusion INTRODUCTION It has been noticed recently that the Indian Society is experiencing a growing awareness of its patients’ rights.The Supreme Court of India has taken painstaking efforts as to make ‘Right to Health’ as a fundamental right. It is the need of the society to develop a protocol which states and checks the practice of Doctors while discharging their duties. Like any other profession, the medical profession is a service line industry which is stated to be of contractual nature. Such a contract is made between the Doctor and the Patient. However, explanation of the same is not that simple as it includes a lot of other variables making this relationship a bit more complex and complicated than the normal ones. There is a need for the code of conduct for the doctors and stabilizing their acts of professionalism. Unlike any other service line, doctors service is said to be next to god as they deal with the life of patients at critical moments and the life of a human is completely dependant on how they serve that patient. A lot of risk is at stake. Henceforth, the provisions should be made in such a manner that they understand the complexity of this nature and then punish. From the point of view of a patient one cannot deny the fact that wrong medications, wrong treatments, negligence in operation theatre and other various forms of negligent acts are present in the system of which the patient is the lone sufferer. To protect the same, the patients must have their rights and such wrong doers must be punished for their negligent acts. While discharging a duty one must be aware of the fact that there lies certain responsibilities and duties which need to be carried. Failure of which shall result in penalty and punishment. Also, one must have a duty of care towards his work and must also follow the ethical codes of conduct. In the recent present, the Indian Society has seen a massive growth by brainstorming into patients’ rights for negligent treatment. Based on the same and also taking into consideration the responsibility and the complexity of the service provided by the Doctors that, the judicial system has tried to make provisions whereby 1.     The patients have their rights if treated in a negligent way               AND 2.     The doctors are covered under an umbrella of safeguards which is essential to protect them according to the complexity of the service they provide to their patients. In my blog below I shall be discussing about aspects of Medical Negligence and the liability of a Doctor for the same. The topics mentioned above shall be discussed in a chronological order to provide a step by step guide for suitable understanding of the readers. WHAT IS MEDICAL NEGLIGENCE?Before going into the details of what is “Medical Negligence” let us understand what is “Negligence” as a term. So, what is negligence? What exactly does one mean when he says someone has been negligent? NEGLIGENCENegligence can be termed as an omission to do something or not to do something under certain circumstances which an ordinary man having reasonable prudence would do. In other words, “Negligence” means to avoid a Duty of Care which should have been taken while discharging the work. In simpler words “Negligence” would mean to not take care or to behave irresponsibly. The term “Negligence” is far too broad to explain. What may not be negligence to me, might be negligence to you and vice versa. Negligence is circumstantial in nature and depends upon the situation. For example: If it is a rainy season and “X” does not lock the windows before going out of the house as a result of which his bed gets wet. “X” would be held to be negligent as he should have shown a duty of care to close the windows. However, under the same circumstances had it been a dry summer day, “X” would not be termed negligent. Having said that and now that we have understood the concept of Negligence let us understand what constitutes Negligence. So, to say what are the factors which must be taken into consideration before coming to a conclusion of an act of negligence. There are 5 basic elements that constitute negligence. It is upon the consideration of these elements that one can conclusively decide whether an act includes negligence or not. The elements have been discussed below. 1.     Duty to take care Negligence depends upon whether or not the defendant owed a duty towards the plaintiff. If there was no duty there cannot be Negligence. In case of Doctors, every doctor has a Duty to take care of its patient and as such is subject to being negligent if he fails to do so.2.     There should be a Breach of Duty Negligence cannot be determined without a breach of duty. By breach of duty one means to do something which he was not supposed to do or to not do something which he was supposed to do under the given circumstances which, if it had not been him then, any reasonable man having ordinary prudence would do. In case of Doctors, every Doctor should be aware of his duty and should discharge the same in similar manner. Any deviation [which would not be taken in the ordinary course of action] shall be held to be breach of such duty. However, it must be stated that – If a particular patient can be treated in two different ways and a particular doctor follows such mode of treatment with due diligence and standard of care and even then, the patient suffers. [In such a case the doctor shall not be held liable for choosing option 2 over option 1]3.     Cause in Fact This is the traditional rule of negligence that, in order to prove the negligence, the plaintiff much prove that the action of the defendant which is said to be negligent in nature is the actual cause or the cause in fact for the plaintiff’s injury. Had such action not been taken, the plaintiff would never have suffered such injury. That such injury is directly related to the defendant’s act. In case of Doctors, the plaintiff must be able to prove that the action or course of action for the treatment or medication of such patient was the reason for which he or she has suffered injury. However, if the plaintiff fails to establish the same, the Doctor shall not be held liable for negligence. 4.     Establishment of Proximate Cause This relates to the extent of the scope of a defendant’s responsibility in a negligent case. The defendant is only and only responsible for his negligent acts and the proximate cause of them which would injure the plaintiff in direct connection with such act of negligent nature. Furthermore, the defendant shall be held liable only for those damages suffered by the plaintiff which were foreseeable by the defendant. Any damage suffered by the plaintiff outside the scope of the risks which the defendant could have foreseen cannot be proved as a “Proximate Cause”. In case of Doctors, the onus is on the plaintiff to prove that the negligent act of the defendant has proximate cause in the injury suffered by him. Such cause should have been foreseeable by the defendant while discharging his duty.5.     Damages CausedIn order to prove negligence, Damage must be proved. It is an essential and most important element, without which negligence cannot be proved. It is not enough by the plaintiff to merely prove that the defendant did not take reasonable care to prove negligence. In fact, such avoidance of reasonable care on the part of the defendant must result in some actual damage to either Body or Property of a person to whom the defendant owed such duty of care. In case of Doctors, the damage must be showed as bodily harm or physical injury suffered by the plaintiff as a result of some negligent act done by the defendant which is in direct connection with the injury suffered by the plaintiff and the same was foreseeable by the defendant. To sum up from the above, I would say: “Medical Negligence” is when a Doctor/Medical Practitioner who happens to owe a duty of care towards his   Patient, breaches the same by way of some misconduct or negligent act, as a result of which the Patient has suffered damages/injuries which are of physical nature, which establish proximate cause and such damages/injuries caused thereof were foreseeable.CASES ON MEDICAL NEGLIGENCE After already knowing what Medical Negligence is all about let us look at the practical examples and the views which have been taken by the courts to arrive at a conclusive decision on cases of Medical Negligence. Here I shall be discussing a few of the landmark cases regarding Medical Negligence, its implications and impacts. LIABILITY UNDER THE CONSUMER PROTECTION ACTCASE – INDIAN MEDICAL ASSOCIATION vs VP SANTHAØ In the above case, medical profession was brought under the purview of ‘service’ as has been defined in the Consumer Protection Act, 1986. Ø This case also played a pivotal role in defining the relationship between a Doctor and his Patient as contractual. Ø Aggrieved Patients now had the right to sue to the Doctors in the Consumer Courts and claim compensation. Ø The Safeguard to the Patients under this Act is available only if they have paid for such service. However, if for some reason, such payment is waived off due to the incapacity of the Patients financial position to pay the same it will be covered under this Act. Ø Any service rendered free of cost or for a nominal registration fee shall not be covered under the scope of this Act. CIVIL LAW AND NEGLIGENCE CASE – STATE OF HARAYANA vs SMT. SANTRAØ The Supreme Court of India held that – “Every doctor has a duty to act with reasonable degree of care and skill” CASE – INDIAN MEDICAL ASSOCIATION vs VP SANTHAØ The Supreme Court of India held that – “Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus, free treatment at a non-government hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) (0) of the Consumer Protection Act, 1986.”CASE – DR. LAXMAN BALAKRISHNA JOSHI vs DR. TRIMBAK BAPU           GODBOLEØ The Apex Court had held that – If a proper practice has been adopted by a doctor which is considered to be proper by reasonable body of medical practitioners and professionals who are skilled in that particular field of expertise, then, in that case, such doctor shall not be held negligent due to the mere fact that something went wrong. CASE – DR. JANAK KANTIMATHI NATHAN vs MURLIDHAR EKNATH                            MASANE Ø The NCDRC applied the principle of “res ipsa loquitur” and arrived to the decision as the prima facie case proved that the accident which occurred could in no way have taken place without the negligence of the Doctor. CRIMINAL LAW AND NEGLIGENCE CASE – POONAM VERMA vs ASHWIN PATELIn the above case, the Apex Court distinguished [negligence, rashness and recklessness] wherein it was held that – “Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability”.Ø On the basis of the above, a Doctor could not be held criminally liable for his acts or for a patients death until and unless it is shown that he was negligent/incompetent till such an extent that he had no regards for the life and safety of his patient and as such it amounted to a crime against the state. CASE – CALCUTTA MEDICAL RESEARCH INSTITUTE vs BIMALESH CHATTERJEE Ø Held that – The onus of proving negligence and the resultant deficiency was on the complainant and not on the defendant. CASE – KANHAIYA KUMAR SINGH vs PARK MEDICARE & RESEARCH CENTREØ Held that – The proof of negligence has to be established and it cannot be presumed. DOCTORS LIABILITY IN MEDICAL NEGLIGENCE It is needless to say that Doctors are both jointly and severely liable for the acts done in the operation theater as a result of which if the patient is the ultimate sufferer then they should be penalized and scrutinized for the same. Looking at the complexity of such service it was not easy to pack such negligence under one head or one tab. Therefore, the courts have opened a variety of options whereby the aggrieved persons can get the relief. The liability of a doctor is broadly classified into 4 heads. Ø Liability under the Consumer Protection Act/Contractual Liability/Service Liability Ø Tortious Liability Ø Criminal Liability      ANDØ Civil Liability  CONTRACTUAL LIABILITY/SERVICE LIABILITY The liability of a Doctor is restricted to the meaning of the term “Service” as specified under the Consumer Protection Act, 1986. As it has already been discussed above, the services provided by a Doctor to its patient comes under the ambit and scope of “Contract for Service”. However, such contracts are personal in nature but still cannot be treated as a contract for personal service. Therefore, bringing the services of a Doctor under the scope of Consumer Protection Act, 1986. Having that said it should also be mentioned here that a “Contract for Service” is beyond the scope and ambit of Section 2(1)(o) of the said Act. Therefore, any patient who has been treated free of cost by any doctor shall not be allowed to sue the doctor for being negligent as there was no consideration. Even if there was a nominal registration charge for the same it is disallowed to get a relief here. TORTIOUS LIABILITY It is again a well stated fact that – The Law of Tort starts from the point where The Consumer Protection Act ends. Under The Law of Tort, medical practitioners who give free service to the patients are also brought under the cover and subject to liability if found guilty of negligence. Those services provided by doctors or medical practitioners which do not fall under the meaning of “Service” as defined in The Consumer Protection Act, 1986 have all the liberty to take recourse [if aggrieved] under The Law of Tort and can claim compensation. However, the onus of proof is on the Patient and it is he who has to prove the negligence of the Doctor. CRIMINAL LIABILITY Under certain circumstances a Doctor can also be held Criminally Liable for his acts. Criminal Liability is attracted in cases of [Gross Negligence, or Recklessness]. The Doctors can be punished under the following provisions of The Indian Penal Code, 1860Ø Under Section 304A [IPC] – For causing death of a patient by rash or negligent act. Ø Under Sections 319 to 338 – For Causing Hurt/Grievous Hurt/Miscarriage etc.However, criminal proceedings against a Doctor cannot be brought about so easily as the judiciary finds it fit to state that Doctors are the professionals who work in and out on a daily basis to give life to their patients and as such they can never have such intentions to hurt them leave apart killing them or being the cause of their death. The Doctors are presumed to be bona fide who are always acting in good faith in the best of the interest of their patients. As such they are entitled to certain immunity from criminal proceedings under the following sections of The Indian Penal Code, 1860 Sections 87 to 92 of the Code provide immunity to those doctors who have acted in good faith for the benefit of the patient. However, such good faith must be proved as and when required. CIVIL LIABILITYA doctor can be held liable for negligence in a civil case. The courts have taken into consideration that what act of a doctor should be held as civil liability and what shall extend to the criminal liability. Stating Paragraphs 12 to 16 of the case of Jacob Mathew, The court has said that – An act of simple negligence will result only in civil liability and only damages can be imposed on the doctor for such act of simple negligence by either the Civil Court or by the Consumer FORA. The matter of deciding what is simple negligence and what is gross negligence has been left to the sole discretion of the court which shall decide the same on a case to case basis, depending upon circumstances, treating every such case as a fresh one and acting upon the same independently without prejudice, keeping the sanctity of justice. MISCELLANEOUSIn this Final Topic of discussion, I shall discuss the following 1.     Defenses for Medical Negligence 2.     Where to seek redressal 3.     Guidelines Issued by the Apex Court 4.     Liability of Hospitals DEFENSES FOR MEDICAL NEGLIGENCEThere are quite a few defenses which are used to safeguard a Doctor from frivolous litigation's of Medical Negligence. They are: 1.     Known Complication – If in any case during the treatment there is a certain complication, as a reason of which it is well known to the doctor and the patient or so his/her family that such complication during the course of treatment may result in death of the patient and that they consent to the same and still go forward with such treatment knowing well that the result of such treatment may or may not be fruitful, The doctor cannot be held responsible for the same. Or in a case where certain known complications arise out of which a mishap took place, even then the Doctor cannot be held responsible. 2.     Difference of Opinion – If under any circumstance a particular doctor has two options to chose from say “A” and “B”, both of which are well recognized methods of treatments in the medical fraternity, then, the Doctor cannot be sued merely because of the fact that he chose option “A” over “B” or vice versa.3.     Unexpected Results – In a case whereby during the course of treatment there has been some unexpected results which the doctor had no clue of. Or for that reason any doctor having the same area of expertise could not have foreseen the same or could have analysed the same. Or that a doctor having ordinary prudence, reason and logic could in no manner deduce such an outcome, in such a case, the doctor cannot be held liable for such unforeseen and unexpected results.4.     Contributory Negligence – If under any circumstance the court finds that the claim of negligence levied upon the doctor is not totally the negligent act of the doctor but has some contribution of negligence of the patient itself, in such a case a doctor shall be held liable only for that part or percentage of negligence which the court feels fit for the doctor and nothing more than that contribution of negligence. 5.     Emergency Care – In case of Emergency Care, a doctor can use this as a defense to defend himself from the charges of being negligent. However, the onus is upon the Doctor to prove that the particular case was a case of Emergency Care as it is, he who is using claiming such defense and it should be he who should prove the same. WHERE TO SEEK REDRESSAL?The Consumer Dispute Redressal Agencies, more popularly known as Consumer Forums have been created at the district, state and at the national level. The COPRA, 1986 provides for a 3-tier grievance redressal mechanism. They are: 1.     NCDRC [NATIONAL FORUM]2.     SCDRC [STATE FORUM]3.     DCDRC [DISTRICT FORUM]Ø The reply of the respondent must come within 45 days after the service of the notice to him and such reply is compulsory in nature, failing which the matter can be thereafter proceeded “ex – parte”Ø Appeal to be filed within 30 days from the date of adjudication of such lower forum to a higher forum.Ø The verdict of the NCDRC can be further challenged in the Apex Court [Subject to the period of limitation]The Consumer Forums have a Disposal Percentage of 91.03% all over the nation and a total of 44,47,487 cases have been disposed off out of 48,85,877 cases which were filed since the inception of COPRA, 1986. GUIDELINES ISSUED BY THE APEX COURTØ Any complaint against a Doctor received by the NCDRC/SCDRC/DCDRC or any Criminal Court must refer it to an expert body to confirm the allegations. Ø Only when it is “prima facie” found after such confirmation that the act was of negligence by the doctor should the police be allowed to arrest such doctor and a notice should be issued for the same. LIABILITY OF HOSPITALSWhen we talk about medical negligence, we do not only mean negligence by Doctor/Doctors. It sometimes may also happen that the Hospitals are responsible for negligence as a result of which the patient could not be treated properly. The liability of the Hospitals can be Ø Direct – where there is a deficiency of service by the Hospital during the course of the treatment, as such making it unfit for treatment.          ORØ Vicarious – Liability of the Hospital [Employer] for the wrongful acts of its workers [Employee] who are working for the Employer [Hospital].The latin maxims “qui facit per alium facit per se” and “respondent superior” shall be applicable here which means “qui facit per alium facit per se” – He who acts through another does the act himself. “respondent superior” – Let the master answer. Some conditions where the Hospitals are directly liable are given below: 1.     Improper maintenance of Hospital 2.     Not being able to provide safe and healthy environment 3.     False claims of available facilities, malfunctioning equipment’s, incompetent staff, deficiency in service, malpractice etc. 4.     Improper maintenance of records by not complying with the regulations of The Medical Council of India Regulations, 2002. CONCLUSION In the recent times, the Indian society has seen a massive growth and awareness relating to the rights of a patient. The Medical Profession is seen to be the most noble of all the professions in the world as it is only after GOD that a Doctor can give a new life to a Patient. As the known idiom goes “God is unerring”. But in reality, a Doctor is as much a human as we are and again as this idiom very truly justifies the same “to err is human”. Hence, they will commit mistakes. The cases of medical negligence have increased by an astounding rate of 400%!!!!! In the past few years in India. In the case of Delhi Max Hospital, Shalimar Bagh, lost its license for declaring an alive new-born child to be stillborn. Gurgaon’s Fortis Memorial Research Institute for the death of a 7-year old girl who suffered from dengue, have once again brought up the issue of rampant medical negligence in India in private and public hospitals.In the light of the above it has become a dire need to establish standards of practice for the Doctors and also safeguard the same. It is very complex to determine how do you hold a person responsible for your losses when he himself is doing his best to save you from the same. Having said that the law in force has tried to keep both the interests of the doctors and the patients very well-defined compromising none when it comes to litigation. On one hand it gives the Patients the right to sue a doctor for its wrongful acts and on the other hand it also immune's a Doctor knowing well that his act is a humane one relating to the most complex of natures going to the extent of “bringing one back from the dead”. Nevertheless, they are humans who are bound to make mistakes and as such the provisions should not be too harsh on them only because they belong to a certain profession. 

Posted By

Shreyash Mohta

4 months ago

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Guidance to Effect Change of Name:

In India, changing of name is a very common factor. It is an old standing custom to change the name of the ladies after marriage. Now a days guys have started voluntarily changing their names and it is gaining a lot of popularity. Many big celebs have also changed their names and the common people are walking on their footsteps. A guide to successfully complete the task is enumerated below: The first step is to create an affidavit. It is recommended that the same may be sworn in before the Judicial Magistrate of First Class. However, an affidavit sworn in before a Notary public is also valid. The next step is to make public announcement. An advertisement in newspapers is required to be given (One English and One Regional). The third and the last step in this process is the Gazette Notification. There are two types of Gazette in India. Thy are: State Gazette Central Gazette A gazette notification is the most important and the critical step in the entire process. The name change process is officially complete once the Gazette notification is done. Since, the change of name is a vital thing, it is important to know the steps in details. The first step is “Affidavit”. An affidavit must contain the former details like the old name, address, occupation etc. It should contain the New name by which you want to be known further. It must contain the statement that “Both the persons are one and identical”. This statement clarifies that both the names are of the same person and not of different persons. The next step is “Advertisement”. It is the second step wherein the change of name is to be publicly announced. The same has to be given in two (2) newspapers. One is English and one Regional having nation-wide circulation. The last and the final step is the Gazette Publication. Once, the gazette publication is completed then you can state your new name everywhere. These three documents would be required in every step as they are the base documents for your new name. It is recommended that you keep these documents very securely. In some places/departments, you might be required to submit the original newspaper advertisements along with the Gazette publications. It is recommended to keep minimum 10 copies as a preventive measure. It is a myth that many people say that changing the name if unofficial or you could land up in trouble, whereas it is very much legal and official to change the name. Till the time of attaining majority, the parents can effect the change of name of their kids and after attaining majority, persons themselves can. The only difference would be in the name of the Applicant. In the former case, the parents would be doing that on behalf of their kids whereas in the latter stage, it would be carried out by one’s own self. Rest all the things almost remain the same.

Posted By

Vedant Lakhotia

1 year ago

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