It is a harrowing experience to lose a loved one. But what if their death wasn’t natural? And what if their death was caused by medical negligence? Every day we read about cases of medical negligence. Whether it is about the death of a four-month-old baby who was given painkillers or a patient was given acid to drink instead of water. These cases prove that even the slightest negligence on the doctors’ part can lead to horrifying results. In this blog, we discuss Medical Negligence And Law In India.

What exactly is Medical Negligence?

In simple words, negligence is a failure to practice due care. Medical negligence is poor care that medical professionals provide to a patient. This causes injury or leads to an existing condition to get worse. There are several ways by which medical negligence can happen such as wrong diagnosis, incorrect treatment or mistakes during surgery. Negligence has many manifestations —it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per se.”

The three main points of negligence are as follows:

1. The offender owes a duty of care to the complainant
2. They breached this duty of care
3. The complainant has experienced an injury due to the offender’s breach

In the case of the state of Haryana vs Smt Santra, the verdict states,”Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of a medical professional.

Does error amount to Negligence?

No one is perfect and even the most distinguished specialist could make a mistake in diagnosing the disease. A doctor can be charged with medical negligence only if the patient can prove that the doctor is guilty of a failure that otherwise could have been avoided if proper care had been provided. 

Doctors must possess an ordinary skillset. However, they cannot guarantee the perfection of their skill or a cure. If the doctor has adopted the right course of treatment and has worked with a method best suited to the patient, they cannot be blamed for negligence if the patient is not completely cured. 

What amounts to Negligence? 

Certain conditions must be met before liability is considered

• The accused must commit an act of neglect or commission, 
• that act must be in violation of the person’s duty; and 
• this should cause harm to the injured person.

Can patients launch action against medical negligence?

Medical Negligence is the transgression of a legal duty of care. A breach like this gives the patient a right to launch an action against negligence. 

The Constitution has Article 21 and Article 32 in place which helps victims of medical negligence. 

Article 21    

The Constitution includes provisions that guarantee people’s right to the highest achievable standard of physical and mental health.

1. Article 21 of the Constitution guarantees the right to life and personal liberty to every citizen.
2. The Apex Court states that the right to live with human dignity preserved in Article 21, stems from the directive principles of state policy and thus include protection of health.
3. Further, the right to health is integral to the right to life and the government has a constitutional responsibility to provide health facilities.
4. If a government hospital fails to provide a patient with timely medical treatment, then it results in the violation of the patient’s right to life. Similarly, the Court has upheld the state’s responsibility to maintain health services.

Article 32

Article 32 provides the right to Constitutional remedies. This means that a person has the right to move to the high court or the Supreme Court to protect their fundamental rights. While the Supreme Court has the power to issue writs under article 32. Therefore, if you want a remedy for negligence you can file a suit under article 32 of the medical negligence laws in India.

Can doctors be liable for medical negligence if they don’t charge fees?

If Doctors do not charge fees they are not liable for their services. Thus free treatment at a non-government or government hospital, health centre, etc. would not be a “service”. Thus, you cannot sue them under the Consumer Protection Law.  

But, victims can sue doctors under criminal law if they can prove that the doctor was negligent or incompetent, with disregard for the life of the patient. Therefore, this amounts to a crime against the State.

Liability of hospitals in cases of negligence 

Hospitals liability with respect to medical negligence can be either direct liability or vicarious liability.

Direct liability refers to the lack of a safe and suitable environment in the hospital for treatment as promised.

Vicarious liability means the liability of an employer for the neglectful actions of its employees. An employer is responsible not only for their own acts but also for the negligent acts of their employees, as long as the act occurs within the field and scope of their employment. 

A hospital can be directly liable for negligence on many grounds.

1. If they fail to maintain equipment in proper working condition. If the patient faces loss due to the lack or non-working equipment, the hospital can be held liable.
2. Hospitals have to hand over copies of medical records, X-rays, etc. If they don’t, it constitutes as negligence or insufficiency of service.
3. It is the right of every patient to have it in writing about their medical illness, treatment given on a prescription and the discharge ticket. Failure of providing this amounts to negligence.

Burden of proof 

Generally, the burden of proof of negligence or carelessness lies with the complainant. The Medical negligence law in India requires a higher standard of evidence than otherwise, to support an allegation of negligence. 

The victim must cite the best evidence and present an expert opinion to prove the allegation against the doctor.

Principle of res ipsa loquitur

In some cases, the complainant can use the principle of res ipsa loquitur or “the thing speaks for itself”. In some circumstances, courts don’t require proof of negligence beyond the accident itself.

This principle comes into operation only when there is proof that the incident was unexpected. That the accident could not have occurred without negligence and lapses on the part of the doctor. Also, the circumstances must conclusively show that the doctor and not anyone else was negligent.

Is medical negligence a civil or criminal offence?

Every case of medical negligence is different. Thus, there are certain criteria that determine whether the negligence case is a civil or criminal offence.

In a civil proceeding, a mere probability of negligence is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt. The persuasion of guilt must amount to such moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt. In such situations, the negligence is the main element. The negligence established by the prosecution must be legally, morally or absolutely done in ignorance and should not be merely based upon the error of judgment.

Basic Steps on How to File a Medical Negligence Case

Step 1: Identify the jurisdiction where the complaint is to be filed. 

Step 2: Draft a complaint which contains all the important facts like the cause of action, the loss suffered, and the amount claimed. It should also have the name and address of both the patient, doctor and the hospital.

Step 3: File the copies of the evidence and the supporting documents. They should include the prescription, bill of the medicines purchased, bill of the hospital, medical reports and any other relevant records. 

Step 4: Besides compensation, victims can also ask for the refunds, losses, lawsuit costs, and interest amount.

Step 5: Lastly, the lawyers of both parties will explain their sides before the court. 

Furthermore, the victims of medical negligence must file a lawsuit within a period of 2 years’ maximum.

Defence for Doctors Under Indian Penal Code 

In the medical negligence laws in India the following provisions deal with medical negligence: 

1.     Section 52 – Good Faith
2.    Furthermore, Section 80-accident in doing a lawful act  
3.     Section 81 – Act liable to cause harm but done without criminal intent and to prevent other harm

Lastly, Section 88 – Act not intended to cause death, done by consent in good faith for person’s benefit.

In the medicinal field, professionals need to be very careful while treatment as any mistake can lead to unfavourable results. Intensional negligence is a very serious crime which should not go unpunished.

How can I complain against medical negligence?