Crime Med Neg Rp.docx

PROJECT SUBMITTED IN PARTIAL FULFILMENT OF REQUIREMENTS B.B.A.,LL.B.(Hons.)

TOPIC: “Medical Negligence with respect to different Case Laws”

SUBMITTED BY: HARSH PHOPHALIA (A036) 81002170048 SY.BBA., LLB. (Hons.)

SUBMITTED TO: Prof. Afrin Khan

INTRODUCTION Medical profession is the one of the noblest professions among all other professions in India. For a patient, the doctor is like God. And, the God is infallible. But that is what the patient thinks. In reality, doctors are human beings. And, to err is human. Doctors may commit a mistake. Doctors may be negligent. The support staff may be careless. Two acts of negligence may give rise to a much bigger problem. It may be due to gross negligence. Anything is possible. In such a scenario, it is critical to determine who was negligent, and under what circumstances. In a country committed to the rule of law, such matters are taken to the court and judges are supposed to decide. However, negligence by doctors is difficult to be determined by judges as they are not trained in medical science. Their decisions are based on experts‟ opinion. Judges apply the basic principles of law in conjunction with the law of the land to decide. Reasonableness and prudence are the guiding factors. We would like to go through these principles in the light of some court judgments and try to understand as to what is expected from a doctor as a reasonable person. As these issues are at the core of medical profession and hospitals are directly affected by new interpretation of an existing law regarding medical professionals, it is pertinent to deal with them at the individual level of the doctor, and also at the employer’s level i.e., hospital.

RESEARCH QUESTIONS 1. What is medical negligence? 2. How different cases were dealt regarding the medical negligence?

LITERATURE REVIEW 1. Medical negligence in India: A study with special reference to liability in tort This research paper covered almost every part for the remedy for the patient thus covering for the loss. It covered all the aspects except from the side of hospitals and doctors as there are many cases where its not always necessary that in case of any medical issue the doctors or the staff is liable. So, this research paper was quite good and helped me a lot understanding and giving me a basic idea of the following area. 2. MEDICAL NEGLIGENCE IN INDIA: A CRITICAL STUDY This research paper helped me a lot in knowing the background of medical negligence and most of the cases related to it, some of which are mentioned in this research paper, and the developments made in the journey.

NEGLIGENCE Negligence is punishable omission or commission of an act leading to harm and breach of right of the other party. The authoritative text on the subject in India is the ‘Law of Torts’ by Ratanlal and Dhirajlal Negligence has been discussed as: Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. Another shorter definition for negligence is that “negligence as a tort is the breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff” . The definition involves three constituents of negligence: 1. A legal duty to exercise the due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; 2. Breach of the said duty 3. Consequential damage PROFESSIONAL According to the English language, a professional is a person doing or practicing something as a full-time occupation or for payment or to make living and that person knows the special conventions, forms of politeness, etc. associated with a certain profession. Professionals are subject to professional code and standards on matters of conduct and ethics, enforced by professional regulatory authorities and they enjoy high status and respect in the society. NEGLIGENCE BY PROFESSIONALS In law of negligence, professional such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. A professional may be held liable for negligence on one of the findings of two: one, either he was not possessed of the requisite skill which he professed to have; or two that, he did not exercise, with reasonable competence in a given case, the skill which he did profess. NEGLIGENCE BY MEDICAL PROFESSIONALS A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is medical practitioner or not, who is consulted by a patient, owes him certain duties, namely a duty of care in deciding whether he undertakes the case; a duty of care in deciding what treatment to give and duty of care in his administration of that treatment. A breach of any theses duties will support an action for negligence by patient. The courts have consistently recognized the hazards associated with the medical practice. The Indian law protects the doctors from criminal liability through sections 88 to 92 of Indian

Penal Code (IPC), because the law presumes that a doctor always acts in good faith for the well-being of his patient. However, the concept of good faith assumes a complicated role in a medical malpractice suit.

DEGREE OF MEDICAL NEGLIGENCE The Delhi High Court laid down in 2005 that in civil law, there are three degrees of negligence: (i) lata culpa, gross neglect (ii) levis culpa, ordinary neglect, and (iii)levissima culpa, slight neglect. Every act of negligence by the doctor shall not attract punishment. Slight neglect will surely not be punishable and ordinary neglect, as the name suggests, is also not to be punished. If we club these two, we get two categories: negligence for which the doctor shall be liable and that negligence for which the doctor shall not be liable. In most of the cases, the dividing line shall be quite clear, however, the problem is in those cases where the dividing line is thin. As regards medical negligence, the legal position has been described in several leading judgments. Some of these are given below: Kunal Saha v. AMRI Hospital Here in this case Kunal Saha’s wife had some rashes on her skin for which she consulted a doctor. She was asked to rest but the problem increases there as the rashes reappeared more aggressively and the doctor prescribed an injection, which was later faulted by experts at the apex court. After this her condition continuously deteriorated and later on died after it was found that she was suffering from a rare and deadly skin disease. The apex court ruled against the AMRI hospital and asked to provide 11.41 Cr. as compensation for the loss.

The Supreme Court in Laxman v. Trimbak , held: "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”

In A.S.Mittal v. State of UP, an irreparable damage was done to the eyes of some of the patients who were operated at an eye camp organized by the government of Uttar Pradesh. Some of the patients who underwent surgery could never see the light of the day, i.e. whatever little vision they had even that was lost. The apex court coming heavily on the erring doctors held that, “the law recognizes the dangers which are inherent in surgical operations and that will occur on occasions despite the exercise of reasonable skill and care but a mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one.” The compensation was awarded.

Kusum Sharma v. Batra Hospital According to the court, „while deciding whether the medical professional is guilty of medical negligence „the following well-known principles must be kept in view: 1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. 2. Negligence is an essential ingredient of the offence. The negligence to be established by prosecution must be culpable or gross and not the negligence based upon the error of judgment. 3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. 4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of the other professional doctor. 6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. 7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. 8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

9. It is our bounden duty and obligation of the civil society to ensure that medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. 10. The medical practitioners at times have to be saved from such a class of complainants which use criminal process as a tool for pressurizing the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. 11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. The court did not rest the case here, i.e. by laying down eleven principles for determining the breach of duty by medical professionals/hospitals, but went a step ahead by observing that, “In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence.” The court further adds a word of caution by stating that, “We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duty with free mind. The above listing of „basic principles‟ with a direction that „they must be kept in view while deciding the cases of medical negligence‟ reflects the judicial attitude of the hon‟ble apex court. It may be noted that any decision, judgment passed by the Supreme Court becomes law of the land and is automatically binding on all other lower courts in the country by virtue of Article 141 of the Constitution of India. Thus the above principles must be taken as „law of the land on medical negligence‟.

CONCLUSION Either the doctor will be responsible for the negligence or the staff of the hospital. There is a rare possibility where both of them jointly commit negligence. In most of the cases of medical negligence, the doctor and the hospital are jointly and severally liable for the act committed. The judgements in the cases of medical negligence are given by taking into consideration the advice of experts until it’s a open end violation of the prescribed rules and duties. Medical negligence is a vast area to cover and as of now the judgements leave a lot of area for discretion, which can be exercised by doctors and other people in an undesirable manner. Recent judgements are showing the progress in the area of medical negligence and thus clearing the mud and showing the clear land. Recommendations 1. There should be a clear and a black and white agreement between the patient and the hospital and the doctors. 2. Doctors should be reasonable and act like a prudent person while prescribing anything to the patient. 3. Govt. should provide more healthcare fund so as to control the cost of healthcare and thus resulting into controlling of costs in medical negligence cases.

4. Classification of medical negligence cases is highly required. 5. More research in this area needed.

BIBLIOGRAPHY 1. Tiwari, Daya, Medical Negligence in India: A Critical Study (November 4, 2013). Available at SSRN: https://ssrn.com/abstract=2354282 or http://dx.doi.org/10.2139/ssrn.2354282 2. A Study of Medical Negligence Cases decided by the District Consumer Courts of Delhi http://medind.nic.in/jal/t15/i1/jalt15i1p50.pdf 3. Abhishek R Bhardwaj, Kuljit Singh, Medical negligence in India: A study with special reference to liability in tort 4. Indian Penal Code, 1860 5. Ratanlal and Dhirajlal, Law of Torts