Negligence can be defined as the breach of duty caused due to an act or an omission by a person by doing or not doing something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would not do or do as the case may be. Negligence is one of the very few juristic phenomena which can lead to either civil or criminal liability and in some cases both.

While in case of civil action, generally it is the amount of damages incurred by the claimant which determines the extent of liability, on the other hand in case of criminal action it is the amount and degree of negligence that is determinative of the liability. That is to say, a liability for negligence under criminal law needs a higher degree of negligence because the essential ingredient of mens rea cannot be excluded from consideration.

On the civil side, the tort of negligence is not required to be supported by a malice in fact that is the presence of a guilty mind and it is the existence of negligence simpliciter which paves the way for liability.

The practice of medicines is one of the most ancient professions. Initially the success or failure of a medical practitioner was attributed to luck, skills and various other factors. The advent of industrialization led to enormous research in the field of medical sciences.

From being a profession of charity, the profession today runs on a model of an industry where for the successful treatment of a patient a doctor receives a handsome sum as a quid pro quo. In order to sustain the growth of this industry, new researches are conducted every day not only in the field of medicine but also in the areas relating to surgery, medical equipment, operational protocols, patient safety so on and so forth.

This advancement has led to a situation where the patients expect greater degree of professional skills from the doctors and in turn are willing to pay handsome amounts as consideration. Therefore, any negligent act by a doctor or his/her support staff which results into a detrimental consequence for a patient is in today's time bound to go under judicial scrutiny.

The Indian law on Medical Negligence:

The law on Medical Negligence in India bears testament to an organic development. Over the years the Constitutional courts in India have taken upon themselves to define the law and the procedure regarding medical negligence. In a leading case, the Honourable High Court of Punjab and Haryana observed that that when a medical practitioner attends to his patients, he owes to him the following three duties of care [i]:

1. In deciding whether to undertake the case;
2. In deciding what treatment to give;
3. In the administration of the treatment.

A breach of any of the above-mentioned duties gives a right of action for negligence to the patient.

The Honorable Supreme court of India in the case of Jacob Mathew vs State of Punjab[ii] explained the following regarding medical negligence-

Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result�. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skills in the branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence.

The Apex court held [iii] that for a professional negligence to be actionable, the professional might be held liable if:

1. He was not possessed of the skill which he professed to have possessed; or
2. He did not exercise with reasonable competence in the given case, the skill which he did possess. Standard to be applied would be that of an ordinary competent person exercising ordinary skill in that profession.

Being a developing nation, the Indian medical paradigm is still prone to conducts where professionals having a degree in one particular branch of medical science opt for practicing in the other. This mostly is due to the disparity of remunerations attached with certain branches in particular.

The Apex court has developed a principle [iv]for such situations where in it is held that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he prima facie is acting with negligence and rashness.

Being a tortious act, medical negligence was initially treated to be under the jurisdiction of Civil courts of ordinary jurisdiction. With the enactment of the Consumer protection Act 1986, the debate started relating to the jurisdiction of the various consumer fora in matters of medical negligence. The primary issue was whether to consider a patient as a "consumer" and medical assistance as a "service".

This debate was finally settled by the Apex Court in the case of Indian Medical Association v. V.P Shantha and others[v] where in it held that service rendered by a medical practitioner by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of "service" and hence any act of negligence in such service will be amenable to jurisdiction of the Consumer fora.

Medical negligence: a fact in India

Even with enormous advancement witnessed by the medical model in India, the cases of negligence have seen a logarithmic growth. A report published by Harvard School of Public Health in the year 2013 showed that that nearly 52,00,000 injuries occur in India annually due to medical errors triggered by lack of practical knowledge among the doctors and nurses to handle patients when brought to the hospital.

Most of the hospitals and clinics in tier 2 and tier 3 cities and the rural areas are run in stark noncompliance of the standard regulations and procedures. The paramedic staffs in such hospitals often do not possess the requisite qualifications and are also burdened with excessive work. According to a 2021 report by the World Health Organization, India was way below the standard 44.5:10,000 ratio of healthcare workers per 10,000 people till 2018, and was just above the 2006 standard of 22.8: 10,000.

A study of medical negligence cases at the National Consumer Disputes Redressal Commission (NCDRC) [vi]has also found that five specialties- surgery, obstetrics-gynaecology, medicine, orthopedics and anesthesiology- made up nearly 80 per cent of the cases where compensation was awarded for negligence.

Poor skills or substandard care provided by doctors or healthcare facilities accounted for a third of instances of medical negligence examined by India's apex consumer court over a five-year period. The study noted that many instances involved a lack of infrastructure, flawed consent forms, or missing medical records.

The study found that there were many instances wherein the medical injuries could have been prevented such as:

• The transfusion of a wrong blood type to a woman who had just delivered a baby led to the death of her foetus in a subsequent pregnancy.
• An invasive, avoidable procedure was performed on a patient with severe pancreatitis, leading to fatal complications.
• An infant was administered an intravenous channel that led to gangrene of the hand, which had to be amputated.
• A nurse administered an anesthetic agent, leading to the death of a patient. The drug should have been administered under the supervision of a doctor.
• An appendectomy was followed by intra-abdominal haemorrhage that was attributed to poor surgical skill and substandard post-operative care.

However, it is important to understand that only a small fraction on cases of medical negligence turn up in the Indian Courts. On the contrary almost 40 percent of the doctors in the United States of America pay malpractice compensations to their victims during their career. The reason for this contrast can be the unawareness of the law amongst the patients at large, the cost and duration of litigation and the sense of nonaccountability attributed to doctors.

Conclusion
With the medical treatment becoming costlier in India, the spreading wave of legal awareness and the surge of insurance providers in healthcare, the instances of cases of medical negligence going under the judicial lens are bound to increase manifolds and it is only with this sense of court infused accountability that India can become a global hub for cost effective and safe medical treatment.

End-Notes:

1. Dr. L.B. Joshi vs Dr. T.B. Godbole, A.I.R. 1989 P. & H.
2. A.I.R. 2005 S.C. 3180
3. Ibid
4. Juggan Khan vs The State of Madhya Pradesh (1965) 1 S.C.R. 14.
5. A.I.R. 1996 S.C. 550
6. Sukumar S. Medical negligence in cases decided by the National Consumer Disputes Redressal Commission: A five-year retrospective review. Indian J Med Ethics. 2023 Feb 18. doi: 10.20529/IJME.2023.016.

Award Winning Article Is Written By: Mr.Ashutosh Srivastava

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