Concept Of Medical Negligence

Medical malpractice occurs when a health care professional or provider neglects to provide appropriate treatment, omits to take an appropriate action, or gives substandard treatment that causes harm, injury, or death to a patient. Medical malpractice occurs when a hospital, doctor or other health care professional, through a negligent act or omission, causes an injury to a patient. The negligence might be the result of errors in diagnosis, treatment, aftercare or health management.

To be considered medical malpractice under the law, the claim must have the following characteristics:

1. A Violation Of The Standard Of Care:
   The law acknowledges that there are certain medical standards that are recognized by the profession as being acceptable medical treatment by reasonably prudent health care professionals under like or similar circumstances. This is known as the standard of care. A patient has the right to expect that health care professionals will deliver care that is consistent with these standards. If it is determined that the standard of care has not been met, then negligence may be established.
    
2. An Injury Was Caused By The Negligence:
   For a medical malpractice claim to be valid, it is not sufficient that a health care professional simply violated the standard of care. The patient must also prove he or she sustained an injury that would not have occurred in the absence of negligence. An unfavorable outcome by itself is not malpractice. The patient must prove that the negligence caused the injury. If there is an injury without negligence or negligence that did not cause an injury, there is no case.
    
3. The Injury Resulted In Significant Damages:
   Medical malpractice lawsuits are extremely expensive to litigate, frequently requiring testimony of numerous medical experts and countless hours of deposition testimony. For a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To pursue a medical malpractice claim, the patient must show that the injury resulted in disability, loss of income, unusual pain, suffering and Examples of Medical Malpractic

1. Failure To Diagnose Or Misdiagnosis
2. Misreading Or Ignoring Laboratory Results
3. Unnecessary Surgery
4. Surgical Errors Or Wrong Site Surgery
5. Improper Medication Or Dosage
6. Poor Follow-Up Or Aftercare
7. Premature Discharge
8. Disregarding Or Not Taking Appropriate Patient History
9. Failure To Order Proper Testing
10. Failure To Recognize Symptoms, Or Significant Past And Future Medical Bills.

Medical Negligence in IPC

Section 304A, IPC reads as, 304A. Causing death by negligence:
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Tests to proof Medical Negligence:

1. Bolam Test
   This test was described in the case of Bolam v friend hospital management committee , UK , 1957
   
   If we simply analyse this case , The facts were as follows Mr Bolam was admitted to hospital for depression and doctor advised some shock treatment . While doing treatment no anaesthesia was given . In first and second shocks treatment nothing happened but in third sitting of shock treatment a fracture occurred in head .To which Bolam filed a suit for damages . Dr gave this case to body of hospitals .This concluded that treatment was according to accepted practice of treatment .
   
   Bolam test states that when doctors accept standard practice then he is not doing breach of duty. A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.
   
   This test criticized by advocates as it is peer review system . Doctor is assessed by another doctor which got criticized on ground that peer review is not acceptable in the society.
    
2. Bolitho Test
   Bolitho v city and hackney health academy
   
   In this case doctor accused liable for charges of negligence. Judges called the experts In which two experts opined that we will do incubation and will give oxygen other opined that we never use incubation but only oxygen. In application Bolam test , doctors were not negligent. By which judges applied another test known as Bolitho test.
   
   Bolan test nullified when a bodyof expert opinion cannot be logically supported by all.
    
3. Informed consent
   Montgomery v Lonarkshire health Board , 2015
   
   Doctors never explained the pregnant woman that she is insulin suffered diabetic and always told that she will get normal labor . Unfortunately child stuck during labor and took birth with great difficulty.
   
   In this case it was held that disclosure of risks to satisfy the criteria of informed consent.
    
4. Clinical Practice Guidelines
   Maharaja Agrasen hospital v Master R
   After the birth of a child retina examination not done . Mother noticed that child is not responding to light . She took the child to hospital . Doctors informed that child lost both the eyes. Doctors held liable for negligence.
   
   It is essential to follow clinical practice guidelines if there is clear guidelines it must be followed. If not followed doctors will be held liable for negligence.

Suits for damages of Medical Negligence can be filled in:

1. Civil court
2. Consumer court
3. National medical commission 2019
4. Human rights commission

Award Winning Article Is Written By: Mr.Amar Nagsen

Authentication No: AU222250420292-10-0822