As we all know that Tort is a civil wrong which affects the personal rights which leads to legal injury and redress by unliquidated damages. We can see that our topic is concerned with the medical innovation and patient safety, we should think and understand that why this topic has been raised. Why there is a need for more medical innovation and patient safety. Because there is so much negligence and loopholes in our ecosystem. Before study medical innovation and patient safety we must learn about medical negligence, and some more concepts to get a better understand and knowledge about our topic.

Research Questions:

1. Describe law relating to medical negligence with certain case laws and explain the need for medical innovation?
2. What were the remedies given to the patient under medical negligence and describe certain rights and responsibility of patients for medical innovations?

Medical Negligence

If the doctor didn't perform an emergency surgery and the patient ended up dying, they were negligent. In most cases, the doctor agreed to the surgery and it's their responsibility to prove they didn't do anything wrong. Usually, in a negligence case, it's the plaintiff's job to prove they did something wrong, but if there was a duty of care that the doctor failed to fulfill and the harm caused was the same as the harm that the precaution was meant to prevent, then the defendant needs to prove they weren't negligent.

If they can't prove they did anything, then they need to prove that the harm to the plaintiff didn't come from the breach of duty.
A doctor is an skilled worker, but they don't promise their treatment will be perfect. If they used the usual skills for their job, they should get paid, even if their treatment didn't work. If there's no proof that negligence caused the accident, then it's not a case and they won't be held responsible.

Components Of Medical Negligence

There are three important components in order to constitute medical negligence:

1. Existence of legal duty
   The fact that there is a legal obligation stems from the fact that when a patient agrees to be treated by a doctor for his illness, he does not necessarily sign any contract, either written or oral, with the doctor. However, on the other hand, if the doctor makes a mistake, it will be considered a breach of professional duty. Therefore, it is the duty of the doctor to treat the patient with an implicit sense of expertise and special knowledge.
    
2. Breach of legal duty
   Everything that is expected of a wise person, who has learned how to do it with years of practice, is his legal obligation and he will not break it in an emergency. That is why a breach of law occurs when he does something that is not in the nature of a normal person or does something that a normal person would not do.
    
3. Damage caused by the breach
   If the damage is caused by negligence, it's up to the courts to decide how much should be paid out. In the past, courts haven't been able to figure out the exact amount because there weren't any hard and fast rules. But now, with the right facts and circumstances, the consumer forum or adjudicatory authority can award a reasonable, proper & fair amount.

Case Law (Joseph Alias Pappachan And Ors. vs Dr. George Moonjely And Anr)
A doctor was found guilty of negligently operating a woman for postpartum sterilization in primitive and crude conditions, disregarding the need for local anesthesia and disregarding the need to puncture the small intestine, resulting in peritonitis. As a result, the doctor was ordered to pay Rs. 1.60,000 in damages, plus 12% interest, to the wife and her minor children.

Remedies For Patient Safety

• Compensation for damages: This involves the payment of monetary compensation to the injured patient to cover medical expenses, loss of income, pain and suffering, and other related costs.
• Injunction or specific performance: The patient may seek an injunction or court order to prevent the healthcare professional from continuing the negligent behavior or to require them to perform specific corrective actions.
• Punitive damages: In certain situations where the healthcare professional's conduct is particularly egregious or reckless, punitive damages may be awarded to punish the wrongdoer and deter similar behavior in the future.
• Recovery of medical expenses: The patient may be entitled to reimbursement of medical expenses incurred as a direct result of the negligence.

Medical Innovation in Tort Law

In most of the countries, medical injuries are typically the subject of a negligence rule. Although estimates suggest that the number and expense of malpractice claims in the United States is significantly higher than in India or other nations, there is a general unease regarding the frequency of medical injury and claims, as well as the cost of compensation and malpractice insurance premiums.
 

Concerns With The Tort System

• Unequal compensation: The settlement process is set up to adjust payments based on the degree of negligence involved. Even though comparing fault is not the standard, this is consistent with effective deterrence and some legal definitions of fairness. Several studies show that settlement is consistent with certain legal rules. Still, there are a lot of predetermined payouts. This lowers deterrence, encourages defense medicine, and adds to the volatility of liability insurance markets.
• High overhead costs: Another area of concern is litigation costs and the high overhead associated with patient compensation compared to other compensation options. Fact-finding in liability systems is only worthwhile if there are benefits in terms of deterrence.
• In case of contributory negligence: Contributory negligence is negligence in which a person does not take action to prevent the consequences of the negligence of another person, provided that they have the means and opportunity to do so. In cases where contributory negligence is present, only the doctor should not be liable. The patient should also come under these circumstances.
   

Other Proposed Alternatives To Tort

There are a number of key aspects of innovation in tort law that need to be reformulated, such as the rule defining compensable injury, provider liability, compensable damages measure, forum of judgment, and financing. Some of these reforms could be applicable to the existing tort system.
 

Current Law in Medical Negligence

In India, medical negligence cases are governed by the Indian Penal Code, the Consumer Protection Act, and various Supreme Court and High Court judgments. Some of the provisions and defenses of medical negligence are as follows:

• Section 304A of Indian Penal Code (IPC): This section deals with negligence causing death. The sentence can be imprisonment for a term of up to 2 years or a fine, or both.
• Section 338 of Indian Penal Code (IPC): This section deals with the offense of causing serious injury by committing an act that is likely to endanger the life or physical safety of a person. A medical professional may be sentenced to imprisonment for a term of up to 2 years or a fine, or both.
• Consumer Forums: The Indian Medical Association said that the consumer forum isn't good enough for medical negligence cases, but the Supreme Court stated that the members are well-versed in the law and can handle complex medical negligence cases.
   

Suggestive Rights and Responsibilities for Patients

Rights of Patients

• Right to proper medical care: Every patient has a right to proper healthcare treatment without any discrimination.
• Right to choice and refusal of treatment: Every patient can refuse the treatment and can withdraw the treatment based on the patient's consent.
• Right to safety and redressal of grievances: Patients have the right to know whether there is a risk in a treatment or if there will be adverse effects.

Responsibilities of Patients

• To educate themselves about their rights.
• Patients should behave politely with medical staff.
• Patients should show trust and confidence in their physicians.
   

Popular Judgments

• RP Sharma v. State of Rajasthan: Where death was caused due to transfusion of the wrong group of blood, the state was held vicariously liable to compensate the victim and was then entitled to recover from the negligent personnel of the hospital.
• M. Shobha v. Rajkumari Unnithan: A lady sued her gynecologist for causing her to have a second baby through improper care and sterilization of her equipment. She claimed that her organs were ruptured, requiring the removal of her reproductive system, and she was awarded damages. The court ruled that the maxim did not apply because there wasn't proof of negligence by the gynecologist.

Conclusion
Medical negligence would be there due to the loopholes if we don't look for medical innovation and patient safety. Laws relating to medical negligence should be more strengthen, this may helps to reduce the cases of Medical negligence. There is a need of Research and development in Medical innovation for the Patient safety. Patients should also Know their basic right and should know their responsibility to neglect and reduce the cases of medical Negligence. Concerns related to Tort System in Medical innovation should be address in R&D and by the respective authorities.

Bibliography:

• A Lakshminath M Sridhar, Ramaswamy Iyer's *The Law of Torts*, LexisNexis, 2007.
• Joseph Alias Pappachan And Ors. vs Dr. George Moonjely And Anr, AIR 1994 Ker 289.
• JSTOR, *Tort Reform: The Case Of Medical Malpractice on JSTOR*, last visited on Thu, 27 Jul 2023. URL: www.jstor.org
• Avtar Singh Harpreet Kaur, *Introduction to Law of Torts and Consumer Protection*, page no. 208, LexisNexis, 2012.
• Tapas Kumar Koley, *Medical Negligence and the Law in India: Duties Responsibility Rights*, Oxford University Press, New Delhi, 2010.
• RP Sharma v State of Rajasthan, AIR 2002 Raj 104.
• M Shobha v Rajkumari Unnithan (Dr), AIR 1999 Ker 149.