In the world today, after the armaments industry, the second most lucrative business is the health industry. At the going rate, who knows, it may become number one in a short period.
Earlier the doctor used to dispense drugs. Now, it has been taken over by the ‘drug industry’.
Earlier the doctor with his/her skill and experience was to diagnose the illness. Now, ‘investigation gadgets industry’ has taken over that.
Earlier, mutual trust ruled. Now suspension is the order of the day. The insurance industry makes in-roads. Thus, the doctor is reduced to a small partner in health business. Every person has a Right to life and health. Any negligence should not curtail these rights. Generally speaking, we all owe a duty to the other members of the society that we do not injure them by our acts or omissions. If we deliberately and intentionally cause injury, then it constitutes crime, and we can be punished. Even if it is not deliberate, but due to our omission of duties, we still cause injury, we will still be liable.
This is known as ‘Civil wrong ‘or ‘Tort’
Medical Negligence is one category of civil wrong or Tort. We, in India, have no statutory laws on this. It is governed by ordinary laws of justice, equity and good conscience. Generally speaking, we could say that we have been following the British law on the subject, as pronounced and laid down by the courts. Except for some statutes with regards to negligence and torts, we only have a general law on torts.
For any negligence to be wrong, there must be three things. First there must be a duty to observe. Second there must be a breach of that duty and thirdly that breach of duty must result in an injury to that person. As far as medical negligence is concerned, the ordinary duty is what is normally described as the duty to take care of a reasonable man. The duty to take care varies according to the stages of diagnosis, treatment, medical advice, prescription of drugs and so on.
Medical negligence is a matter of major concern throughout the world and considerable interest has been generated during the recent times on the question of medical negligence.
What constitutes medical negligence?
There has to be a duty of care and breach of that duty. When a patient requests for care and the doctor accepts the same, an implied contract comes into effect and the duty of care arises. Negligence involves breach of the duty of care as a result of which the patient suffers damage. If the doctor does not bring the skill and knowledge expected of a doctor of his/her standing to the care of the patient, it constitutes negligence. The care has to be of the standard of a reasonable doctor under the circumstances. Naturally, a higher standard of care is expected of a specialist in the particular field. Sometimes obsolete methods of treatment may be employed. This is not acceptable , as the medical professional is expected to keep abreast of the changes.
If there is a breach of duty and harm/injury is caused and there is a direct cause and effect relationship between the negligence and the injury caused, the person harmed or the successors and beneficiaries can claim for damages. The hospitals and other health care institutions are liable for the negligence of the staff employed by them.
The Medical Council has the authority to act upon a complaint regarding any negligence or malpractice by any doctor. The Medical Council can only punish the doctor. Damages to the aggrieved person can only be awarded by the courts. A medical doctor cannot escape any accusation of negligence merely on the grounds that he exercised his clinical judgement. Clinical judgement must be based on proper consideration and proper assessment and must take into account all related dimensions into consideration. This law of medical negligence applies not only to doctors but to others like nurses, anaesthetists, radiographers, pathologists and other persons connected with the profession.
Hospitals are liable for the negligence of the doctors who perform operations. It is so even in the case of consultants. Now hospitals give complete range of treatment including consultancy, operation theatre, radiography, ECG Department, pathological laboratory etc. They all form a complete unit by themselves. The doctors now appointed by the hospitals are as such servants of the hospital. Hospitals are equally liable for all the negligence of the doctors and nurses employed by them. In a famous case, a nurse gave an injection of ‘cocaine’ instead of ‘procaine’ resulting in the death of the patient. The hospital was made liable afterwards.
Only a thin distinction is made between the administrative staff and the medical staff. Medical negligence is a matter of major concern throughout the world. The law of medical negligence is complex and at times difficult to say where negligence begins and where it ends, and to what extent the doctor or the institution is liable.
I hope a balance is struck between the rights of the doctor over the patient and the right of the patient to see that the doctor exercises due care. This is important as the health culture and scenario has changed into an exploitative one with the curative approach dominating preventive approach.
(Advocate, International Law Consultant and Human Rights Activist)
