Indian Society is experiencing a growing awareness recently regarding the patient’s rights. Hospitals are increasingly facing complaints regarding the facilities and the correctness in their diagnosis methods. Since the Consumer Protection Act, 1986, has come into force some patients have filed legal cases against doctors, establishing that the doctors were negligent in providing medical service, and have thus claimed and received compensation. Therefore, a number of legal decisions have been made on what amounts to negligence and what is required to prove it.
Medical negligence is a blend of two words. The second word describes the meaning, though the meaning of negligence is an act carelessly done by a person resulting in likely damages to the others. Negligence is an offence under the law of tort, Indian Penal Code, Indian Contracts Act, Consumer Protection Act and so on. Medical negligence is basically the misconduct by the medical practitioner by not providing services and resulting in a breach of their duties towards their patients. Many deaths are caused or have resulted in some adverse effect on the patient’s health due to medical negligence.
Negligence is the violation of a legal duty to care. It means carelessness in which the law mandates carefulness. Breach of this such duty gives the patient the right to initiate action against this negligence.
The ingredients of negligence are as follows:
- The defendant has a duty of care to the plaintiff
- The defendant has violated this duty of care.
- And the plaintiff has suffered an injury due to his breach by the defendant.
in case of medical negligence usually, the doctor is the defendant. Negligence is a theory of liability concerning allegations of medical malpractice, making this type of litigation part of the Tort Law.
Negligence under the Law of Tort: A tort can be defined as a civil wrong, for which action can be initiated for unliquidated damages. In certain cases, there can be concurrent liability under tort and contract. For instance, if there is a contract existing between a patient and a doctor, then the doctor, for his negligence, will be liable under the contract.
Negligence under Civil Law: Negligence is the breach of a duty to care. It means carelessness in which the law mandates carefulness. Breach of such duty gives the patient the right to initiate action against this negligence.
In India, Doctors may be held liable for their services individually or vicariously unless they come within the exceptions specified. Doctors aren't responsible for their services separately or vicariously if they don't charge fees. Therefore free treatment/diagnosis at a non-government hospital, health centre, governmental hospital, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) of the Consumer Protection Act, 1986.
Nevertheless, no human being is perfect, and even the most renowned specialist can make a mistake in detecting or diagnosing the disease. A doctor can be held responsible for negligence only if one can prove that the doctor is guilty of failure, that no other doctor with ordinary skills would be guilty of.
Doctors must use an ordinary degree of skill. However, they cannot give a warranty for their expertise or a guarantee of cure of the disease. If the doctor has chosen the right way of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not cured.
Before considering the certain liability conditions must be satisfied. The accused person must have omitted or committed; this act must be a breach of the person’s duty; and which must have caused harm to another person. The complainant must be able to prove the allegation levelled on the doctor by the best evidence in medical science and by demonstrating expert opinion.
Negligence under Criminal Law: Section 304A of the Indian Penal Code, 1860 says that whoever causes the death of a person by a rash or negligence not amounting to culpable homicide will be punished with imprisonment for two years, or with a fine, or with both.
In Poonam Verma Vs Ashwin Patel the Supreme Court distinguished between negligence, rashness, and recklessness. A negligent person is one who inadvertently commits an act of omission and violates an affirmative duty. A person who is rash knows the consequences but foolishly thinks that they will not occur as a result of her/ his act. A reckless person knows the effects but does not care whether or not they result from her/ his action. Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability.
Thus a doctor cannot be held criminally responsible for a patient’s death unless it is shown that she/ he was negligent or incompetent, with such disregard for the life and safety of his patient that it amounted to a crime against the State.
Sections 80 and 88 of the Indian Penal Code contain defence for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that is done by accident or misfortune and without criminal motive or knowledge in the doing of a legal act in a lawful mode by lawful means and with proper care and caution. According to Section 88, a person cannot be accused of an offence if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.
The burden of proof and chances of error: The burden of proof in case of negligence, carelessness, or insufficiency lies with the complainant. The law requires the best evidence, to support the allegation against a doctor, the patient must be able to establish her/ his claim against the doctor in case of negligence, carelessness, or insufficiency.