Medical negligence has become one of the serious issues in the country in recent years, often results in the death of the patient or complete/partial impairment or any other misery which has adverse effects on the patient's health. The term "medical negligence" is an omnibus one, which has come in vogue to refer to wrongful actions or omissions of professionals in the field of medicine, in pursuit of their profession, while dealing with patients. Negligence, is a breach of duty of care resulting in injury or damage.

The fundamental reason behind medical negligence is that the carelessness of the doctors or medical professionals are often ascertained in various cases where reasonable care is not taken during the diagnosis, during operations, while injecting anaesthesia, etc. Every professional must exercise his profession with a reasonable degree of care and skill. A surgeon does not undertake that he will surely perform a cure nor does he profess that he uses the highest possible degree of skill. He only undertakes to bring a fair, reasonable, and competent degree of skill.

A doctor is not liable in all cases where a patient has suffered an injury. He might have a valid defence that he has not breached the duty of care. There are 3 components of medical negligence:

• Existence of legal duty
• Breach of legal duty
• Damage caused by such breach

What Does Not Amount To Medical Negligence?

If a patient has suffered an injury the doctor might not be held liable for negligence. In case of error of judgement by the doctor, he shall not be charged against any such actions. Even doctors are humans and, hence are prone to make mistakes, and therefore, they shall be allowed some relief. Merely based on the fact that the decision of the doctor did not turn out to be favourable, he cannot be held against such error in judgement.

The Courts have observed that merely because the doctor choose a different procedure/ treatment to cure the problem and it did not work as expected, will not make him liable. One must prove that there was breach of duty on his part. A doctor performing his duty with due care and caution could not be held liable for negligence. However, where error in judgement was due to a negligent act, it shall then be termed breach of duty and the doctor shall be held liable for his actions.

In Laxman Bapu case and Poonam Verma case it was held that, a doctor when consulted shall have the following duties- a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach of any of these shall give rise to a right of action for negligence to the patient.

A doctor has a discretion in choosing treatment which proposes to give to the patient and such discretion is higher in cases of emergency. In Achutrao Khodwa case, the SC held that the skill of medical practitioners differs from doctor to doctor and more than one course of treatment can be administered. So, courts will be careful in attributing negligence on the doctor if he has performed his duty to the best of his ability with due care and caution.

Types Of Medical Negligence:

Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.

Some of the common categories of medical negligence are as follows:

• Wrong diagnosis:
  When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
   
• Delay in diagnosis:
  A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
   
• Error in surgery:
  Surgical operations require an vast level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
   
• Errors in the administration of Anaesthesia:
  Anaesthesia is a risky part of any major medical operation and requires a specialist (anaesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anaesthesia, the anaesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anaesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
  
  In Laxman Joshi v. Trimbak Bapu God bole, the patient suffered from a fractured limb which the doctor tried to cure by pulling his injured leg using great physical force. As this was done without anaesthesia, the patient died of shock. The doctor was held liable for negligenc.
   
• Childbirth and labor malpractice:
  Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a new born medical condition, etc.
  
  In Jasbir Kaur v. State of Punjab, a newly born child was found missing from the bed in a hospital. The child was found bleeding and near the wash-basin of the bathroom. The hospital authorities argued that the child had been taken away by a cat which caused the damage to him. The court held that the hospital authorities were negligent and had not taken due care and precaution. Thus, awarded the compensation amounting to Rs. 1 lakh.
   
• Long-Term negligent treatment:
  Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.

Essentials Of Medical Negligence:

The term 'Medical negligence' consists of two words - medical and negligence. Negligence is solely the failure to exercise reasonable care. Medical negligence is no different. It is only that, in case of medical negligence, the doctor is the defendant.

In an action for negligence, the following essentials are required:

• The defendant owed a duty of care to the plaintiff.
• The defendant made a breach of that duty.
• The plaintiff suffered damage as a consequence of that breach.

If a doctor fails to perform the aforesaid duties it results in breach of duty and gives a right of action to the patient. A breach of duty is committed by a doctor when he does not perform the degree of care like a reasonable doctor.

In Kusum Sharma v. Batra Hospital it was held by the Supreme Court that a doctor often adopts a procedure which involves a higher element of risk, but in doing so he honestly believes that it will provide greater chances of success for the patient. If a doctor has taken a higher risk to redeem the patient out of his/her suffering and it did not yield the desired result, this may not amount to medical negligence.

In the case of Dr. Laxman Bal Krishna Joshi Vs. Dr. Trimbak Bapu God bole and Anr., the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.

In State of Haryana v. Smt Santra, the Supreme Court held that it is the duty of every doctor to act with a reasonable degree of care. However, no human in this world is perfect and even specialists make mistakes, a doctor can be made liable only if he fails to act with such reasonable care that every doctor with ordinary skills would be able to do.

In Wilsher v. Essex Area Health Authority, the infant plaintiff was placed in a special care unit and almost suffered near blindness due to excess oxygen. A junior doctor inserted the device in a vein instead of artery and later consulted a senior doctor who did the same mistake. It was held that the junior was not negligible as he had approached the senior, but the senior was negligible.

Patients Incapable Of Giving Consent

A doctor cannot lawfully treat adult persons of sound mind which involves application force without their consent, otherwise will be liable for the tort of trespass. However, when a patient is incapable of giving his consent, a doctor can proceed with the treatment given that it is in the best interests of the patient. This is limited to the cases in which life is to be saved or patient's mental or physical health must be prevented from being deteriorated.

In cases of persons of unsound mind, the court's prior permission is to be sought before the treatment is lawfully performed. In F. v. Berkshire Health Authority, the plaintiff was a mentally handicapped woman, who was an inpatient in a mental hospital and having sexual relations with the male inpatients. An application for sterilization was filed in the court on the grounds that it was in her best interests.

In Samira Kohli v. Prabha Manchanda, the patient was admitted for laparoscopy, during the treatment the doctor found that she was suffering from endometriosis. He performed hysterectomy i.e., removal uterus and ovaries while she was unconscious with the consent of her mother. It was held that as there was no emergency, the doctor should have waited to obtain the consent of the plaintiff.

The consent of an adult patient of sound mind is his right to self-determination. The patient can refuse being treated if he wishes so and cannot be said to have committed suicide nor have the doctors aided or abetted him.

Remedies:
A victim of medical negligence who intends to sue an erring health care provider has the following options:

1. Compensatory action:
   Seeking monetary compensation before the Civil Courts, High Court or the Consumer Dispute Redressal Forum under the Constitutional Law, Law of Torts/Law of Contract and the Consumer Protection Act.
    
2. Punitive action:
   Filing a criminal complaint against the doctor under the Indian Penal Code.
    
3. Disciplinary action:
   Moving the professional bodies like Indian Medical Council/State Medical Council seeking disciplinary action against the health care provider concerned.
    
4. Recommendatory action:
   Lodging complaint before the National/State Human Rights Commission seeking compensation.

Liability of Health Care Provider in The Constitutional Law

The Constitution of India does not guarantee any special rights to the patient. The Supreme Court in various cases has viewed that the right to life as enshrined in Article 21 of the Constitution of India includes the right to health and medical treatment. The right to life would be meaningless unless medical care is assured to a sick person.

Article 19(1) provides six fundamental freedoms to all its citizens which can be restricted only on grounds mentioned in Clauses (2) to (6) of Article 19 of the Constitution. These fundamental freedoms can be effectively enjoyed only if a person has healthy life to live with dignity and free from any kind of disease or exploitation which further ensured by the mandate of Article 21 of the Constitution. When breach of this right occurs, the health care provider will be held liable for negligence.

• Medical Council of India
  The grieving party can file a complaint against a medical practitioner to the concerned State Medical Council as they have the power to take action against by cancelling or suspending the registration of concerned doctor. The Indian Medical Council Act, 1956 does not give them the power to compensate the grieving party.
  
  The accused is required to file a complaint to the council precisely the relevant details of the matter The council shall then allow the accused 30 days' time to submit his reply. If the council is not satisfied with the reply, then they shall call upon both the parties to present evidence in support of their claims.

Conclusion
People visits doctor with the faith of getting well treated by them. The doctor can provide preventive health screening and can take the necessary steps to treat the disease, catching the diseases early can save a person from getting into the worst condition but the faith is deteriorating day by day with the increasing cases of medical negligence. The patients approach to the doctor while in pain and hopes for a successful treatment and speedy recovery.

Sometimes the things don't go as planned while the treatment thus may lead to severe minor or major injury to the patient which could be due to the fault of doctor or naturally. However, injury by the negligence on part of doctor or the staff could make them liable and the necessary action would be taken against them.

References:
Book:

• Law of Torts - R. K Bangia

Article By: Reva Sharma