INTRODUCTION TO LAW OF TORTS

The word ‘tort’ is derived from a Latin term ‘tortum’ which means ‘to twist’. Hence, ‘tort’ means “a conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful”.

In simple words it is the equivalent of the English term – “wrong”.

The law of torts consists of various ‘torts’/wrongful acts wherein the wrongdoer violates the legal rights of another individual. The law imposes a duty on everyone to respect the legal rights vested in every member of the society; and further, a breach in this duty leads to a ‘wrongful act’.

Thus, ‘tort’ is a breach of duty recognized under the Law of Torts.

According to S.2(m) of the Limitation act,1963 –

“Tort means a civil wrong, which is not exclusively a breach of contract or breach of trust.” Furthermore,

According to Salmon

“It’s a civil wrong for which the remedy is a common law action for unliquidated damages and which isn’t exclusively the breach of a trust or other merely equitable obligation.”

Basically, the common factors in all the definitions given by various thinkers, such as Salmon, Winfield and Fraser are:

1. Tort is a civil wrong, and
2. Every civil wrong isn’t a tort

PART – I: ESSENTIALS FOR A ‘WRONGFUL ACT’ TO BE A TORT

1. There must be in/omission on the part of the defendant –

In order for any ‘wrongful act’ to be considered a tort, (or) for any individual be liable for tort, he must have acted in a way that he wasn’t supposed to or, omitted to act in the manner he was supposed to.

Few examples supporting the above-mentioned definition are as follows;

• negligent behavior
• defamation, or
• trespassing

2. The act / omission should have led to a legal damage (Injuria), i.e., violation of a legal right of the plaintiff –

It is the responsibility of the plaintiff to prove to the court that there was a wrongful act-act or omission- which leads to a breach of legal duty or violation of the plaintiff’s legal right. Thus, unless there’s a violation, there can be no action against the wrong doer in Law of Torts.

The above statement can be expressed by a Latin maxim “Injuria sine damno.”

To understand it better, it can be broken into 2 main parts- First; Injuria, means to violate/breach a right conferred by the laws on the plaintiffs or in unauthorized intrusion of the plaintiff’s right. Second; Damno means a substantial amount of harm- in terms of wealth, comfort or health- that’s caused to the plaintiff.

Hence, Injuria since damno, means where there’s been a violation of the plaintiff’s legal right coupled with the amount of harm done, the plaintiff can and should go to the court, no matter how trivial it may seem, because no breach of a legal right should go un-addressed.

NEGLIGENCE

There are various definitions for negligence.

According to Winfield and Jolowicz – “Negligence is the breach of a legal duty to take care, which results in the damage, undesired; by the defendant to the plaintiff.” Where’s, according to Lord Wright – “Negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.” and according to the apex Court in Jacob Mathew v. State of Punjab observed that “Negligence is the breach of duty cause 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 something which a reasonable and prudent man wouldn’t do. Where’s, 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 care, by which the neglect the plaintiff has suffered injury to his person/property.”

In all the above mentioned definitions, we can conclude that Negligence has 3 main constituents, i.e., a legal duty to exercise due care on part of the concerned party, Breach of said duty, and Consequential damages.

NEGLIGENCE – AS A TORT AND A CRIME, AND NEGLIGENCE UNDER CONSUMER PROTECTION LEGISLATIONS

NEGLIGENCE AS A TORT

As mentioned in chapter 1, Tort is a civil wrong; the duties and rights in tort is fixed by the law; the duties are owed in rem, i.e., to the world at large; and all wrongful acts can be remedied by filing for unliquidated damages.

NEGLIGENCE AS A CRIME

It is a well-known fact that for any action to be deemed as criminal, there needs to be men’s rea, i.e., intention or a guilty mind, regardless of the final act of the wrong-doer. Hence, if there is a guilty mind the (medical) professional will be held liable. It is equally important to remember that under Criminal Law, rashness and recklessness mounts to crime. Thus, to prove medical-criminal negligence against a professional, the degree of rashness and recklessness needs to be much higher.

Distinguishing the difference between negligence as a tort and as a crime, the Supreme Court, in Jacob Mathew v. State of Punjab, observed,

“To fasten liability in Criminal Law, the degree of Negligence has to be much greater             in comparison of negligence enough to fasten liability for damages in Civil Law.

The essential ingredient – mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R v. Lawrence2, Lord Diplock spoke in a 5-judge bench (with all the others in agreement). He reiterated his opinion in R v. Caldwell3, and dealt with the concept of recklessness as constituting mens rea in Criminal Law. His Lordship warned against adopting a simplistic approach of treating all problems of a criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent person to the possibility that his act was capable of causing the kind of serious harmful consequences occurring was not so slight that an ordinary prudent person would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being   any such risk or having recognized that there was such risk, he nevertheless goes on to do it.”

NEGLIGENCE UNDER THE CONSUMER PROTECTION LEGISLATION

Ever since professions have been included under the purview of consumer protection laws; medical practitioners too have felt the heat. It is on a footing different from any other kind of negligence.

Under consumer protection laws, medical negligence is another form of deficiency in service. It is most akin to the liability under the law of torts. But there is stricter and broader liability in this situation as failure to exercise skill and care as is ordinarily expected of a medical practitioner is the test under consumer protection laws.

Admittedly, doctors have an extremely difficult duty to perform. They are the ones in whose hands a patient place what is most valuable to each human – their lives. It is for this reason that doctors are expected to exercise a very high degree of skill and care, but this is also the precise reason why they should not be inhibited in the exercise of their duty. Therefore, the laws imposing liability on medical practitioners have been tailored to accord to practitioner’s maximum possible protection.

NEGLIGENCE BY A PROFESSIONAL

In the law of negligence, professionals such as lawyers, doctors, architect. In the category are persons professing a particular skill. any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possess the requisite skill for performing the task. The apex Court in Jacob Mathew v. State of Punjab, explained:

“any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill he professes to possess shall be exercised and exercised with reasonable degree or care and caution. He does not assure the client of the result. a lawyer does not tell his client that he will win the case in all circumstances. a physician does not guarantee full recovery of his patient in every case. a surgeon cannot and does not guarantee that the result surgery will be beneficial, much less to the extent of 100% for the person to be operated on. The only assurance that such a professional can give is that he possesses the requisite skill in that particular branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all, what the person approaching the professional can and should expect. Judged by this standard, a professional may be held liable for negligence on one out of two findings: either he was not possessing the requisite kill which he professed to have possessed, or, he did not exercise, with reasonable care, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary, competent person exercising ordinary skill in that profession.”

 

MEDICAL NEGLIGENCE IN THE INDIAN SENARIO

Of late, the Indian society is experiencing an increase in awareness when it comes to patients’ rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability. By and large these litigate claims are preferred claiming redressal for the suffering caused due to medical negligence, vitiated consent, breach of confidentiality arising out of doctor-patient relationship. The controversial Supreme Court is ruling as to the application of Consumer Protection Act, 1986 (COPRA) to the medical profession apparently gave fillip to such development. This patient-centre initiative of rights protection is required to be appreciated in the economic context of rapid decline of State spending and massive private investment in the sphere of health care system, and the Indian Supreme Courts’ painstaking efforts to Constitutionalist “Right to Health” as a fundamental right. The obtaining indicators point towards further entrenchment of such pursuit for protection of patients’ rights in the days to come. as of now, the adjudicating process with regard to medical professional liability, be it in a consumer forum or a regular civil or criminal court, considers common law principles relation to negligence, vitiated consent and breach of confidentiality. In the process, the adjudication forums caught between competing and conflicting interpretations of English and American legal principles. In view of the fact these issues depend of identified standards of care, application of foreign principles seemingly devoid of social and cultural relevance would undoubtedly lead to arbitrary decisions. as a result, either the patients’ or the professionals’ interests would be in jeopardy.

RIGHTS OF A PATIENT

The Ministry of Health and Family Welfare (MoHFW) has released a ‘Charter of Patients Rights’ prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights according to the Constitution of India.

Right to know the information – Physicians or their qualified assistants are required to provide ample information about your sickness, its analysis (provisional or demonstrated, as it usually is), proposed investigation and feasible complications to the patient. If the sufferer will not be in a state to recognize this, the health care provider or their assistant is required to furnish the information to the caretaker. This has to be accomplished in a simple language that the patient or caretaker will appreciate. apart from this, sufferers have the right to grasp the identity and respectable repute of every medical professional and assistant as good as the major health practitioner who’s treating them. Expertise concerning bills of medication wants to be given in writing.

Right to see and check records and reports related to their ailment – Patients or their respective caretakers have the proper to entry the originals or copies of case papers, indoor sufferer documents, and investigation studies. Investigation experiences must be made to be had to them within 24 hours of admission or seventy-two hours of discharge. The hospital is accountable for providing a discharge abstract or a death abstract, in the case of a dying, to the caretakers or family members of the sufferer with customary copies of investigations.

Right to receive medical care during an emergency – In the case of an emergency, you can avail hospital treatment in any executive or confidential health facility. Underneath article 21 of the structure, which ensures that every person has the proper right to life and private liberty, you have got proper right to prompt emergency care with the aid of medical professionals without compromise on the standards of care, safeguard and without needing to pay full or an advanced cost to the health centre.

Right to give informed consent – If a hospital decides upon carrying an invasive investigation or surgery or chemotherapy on a patient, they require doing so after finishing a correct policy system. The general practitioner specifically in control of a patient has to provide an explanation for the risks, consequences, and process of the investigation or surgery in the element and an easy language before supplying the protocol consent type to the sufferer or to the responsible caretaker.

Right to have confidentiality, human dignity and privacy related to their ailment – Now this one is a particularly identified right, mainly for those who follow television suggests about hospitals or doctors. The code of ethics dictates medical professionals to hold knowledge concerning the ailment and medication plan for the patient in strict confidentiality from all people besides the patient and their caretakers. Unless it is the best case the place sharing this knowledge is within the interest of shielding others or because of public well-being issues. Within the case of a feminine patient, she has the proper to demand the presence of another girl if the clinical practitioner checking or treating her is male. Having stated this, the medical institution is accountable for upholding the respect of every patient, irrespective of their gender.

Right not to be discriminated on any basis regarding medical care – This point brings us to the rights of a patient being upheld without discrimination established on their ailment, situation, HIV reputation or on their gender, age, religion, caste, ethnicity, sexual orientation, linguistic or geographical or social origins. Headquartered on the above traits, no person may also be subjected to discriminatory treatment, and the employees of the clinic are liable for ensuring this.

Right to safety and quality care according to standards of required medical care – There is a list of provisions that come under the list of quality care standards. This includes Safety and security, Cleanliness, infection control measures, and sanitation facilities and safe drinking water, healthcare that abides by the latest standards, norms, and guidelines under the National Accreditation Board for Hospitals, to be attended to, treated and cared for in a professional manner and with the principles of medical ethics and the right to seek redressal by patient or caretakers.

Right to choose or select any alternative treatment to cure their ailment if options are available – Hospital employees and medical professionals are dependable for clarifying all cure choices to the sufferer/caretakers. after radical gain knowledge of their alternatives, the patient/caretakers can prefer to select a cure that will or is probably not the surgeon’s main recommendation. This also signifies that once the patient/caretakers prefer this substitute healing, they’re going to shoulder the accountability of its consequences.

Right to have transparency in the cost of the treatment and care according to the prescribed cost whenever relevant – as acknowledged, the patient has the correct to have a written account of the costs they’ll have to endure for the remedy they’re receiving. as evidence for this, hospitals are required to have printed brochures and distinguished display boards bearing the names and rates of clinical tactics which can be to be had with them.

Particular schedules of key charges need to be displayed in conspicuous places and must be in both, English as good as the neighborhood language. Patients have the correct to get drugs, instruments, and implants at rates determined with the aid of the countrywide Pharmaceutical Pricing authority (NPPA) and other imperative authorities. Patients have the right to acquire health care offerings that fee inside the variety prescribed through the critical and State governments, on the time of receiving it.

Right to choose or select the source for buying medicines or doing tests – as a patient or a caretaker, you’ve gotten the correct to decide upon which registered pharmacy you want to purchase your scientific provides from. This also entails getting an investigation system (like a blood experiment, for illustration) from any diagnostic centre or laboratory registered beneath the National Accreditation Board for Laboratories (NaBL).

Right to choose or select proper referral and transfer, which is free from contradictory commercial influences – If a patient must be transferred from one healthcare center to one other, a right and unique justification need to take delivery of to them/caretakers along with various options of the brand new healthcare center. They have got to additionally take delivery of a record of cures/drug treatments that have got to be endured after the transfer. This step is not able to be taken unless the patient or their caretaker be given it. Understand that, these selections are not able to be influenced by factors like “kickbacks, commissions, incentives, or other perverse trade practices.”

Right to protection for the patients who are involved in the clinical trials – Consistent with the Ministry of Health and Family Welfare (MoHFW), “all scientific trials need to be carried out in compliance with the protocols and good scientific apply recommendations issued through services, Govt.

Of India as good as all applicable statutory provisions of amended drugs and Cosmetics act, 1940 and rules, 1945 principal medicinal drugs general manipulate service provider, Directorate basic of wellness.” These aspects incorporate consent through the sufferer, written prescription of medicinal drugs or intervention, privacy, and many others.

Right to get the education that a patient requires to know about his ailment   or disease – There’s a list of things that a sufferer wants to be advised about by the medical institution. These have got to be addressed within the language that the sufferer/caretaker knows. This entails main details about their, healthy living practices, their rights and responsibilities, well- being coverage schemes significant to them, relevant entitlements (for charitable hospitals) and how to search redressal of grievances.

Right to be heard and seek redressal about his ailment or disease – Last but not the least, every patient has the proper to address his grievances and give feedback about the healthcare and remedy they received on the hospital or from a specified doctor/assistant. The Ministry of Health and Family Welfare (MoHFW) extra provides,” sufferers and caregivers have the correct to seek redressal in case they are aggrieved, by reason of infringement of any of the above-recounted rights on this charter. This may be achieved with the aid of lodging a criticism with a legitimate special for this cause by using the sanatorium/healthcare supplier and extra with a legitimate mechanism constituted by the federal government corresponding to sufferers’ rights Tribunal forum or scientific organizations regulatory authority because the case could also be.

PART II: BACKGROUND

ESSENTIALS OF NEGLIGENCE

In an action for negligence, the plaintiff has to prove the following essentials:

DUTY TO TAKE CARE

One of the essential conditions of liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws will throw some light upon this essential element. In Grant v. Australian Knitting Mills Ltd.4, the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by wearing underwear. The woolen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.

DUTY TO WHOM

Donoghue v. Stevenson5, carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbor. Explaining so as to who is my neighbor LORD aTKIN said that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

DUTY MUST BE TOWARDS THE PLAINTIFF

It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff.

In Bourhill v. Young6, the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor- cyclist after passing the tram collided with a motor car at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

BREACH OF DUTY TO TAKE CARE

Yet another essential condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform that duty.

In Municipal Corporation of Delhi v. Subhagwanti7, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable.

In Municipal Corporation of Delhi v. Sushila Devi8; a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.

CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF

The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into following classes: –

1. physical harm, i.e. harm to body;
2. harm to reputation;
3. harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
4. economic loss; and
5. mental harm or nervous shock.

In Achutrao Haribhau Khodwa v. State of Maharashtra9; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

ESSENTIALS OF MEDICAL NEGLIGENCE

DOCTOR’S DUTY TO ATTEND THE PATIENT WITH CARE

Medicine is such a profession where a practitioner is supposed to have requisite knowledge and skill needed for the purpose and has a duty to exercise reasonable duty of care while dealing with the patient. The standard of the care depends upon the nature of the profession. a surgeon or anesthetist will be determined by the standard of average practitioner in that field while in case of specialists, a higher skill is needed.

If the doctor or a specialist doesn’t attend a patient admitted in emergency or under his surveillance and the patient dies or becomes victim of consequences which could have been avoided with due care from the doctor, the doctor can be held liable under medical negligence. This was held in Sishir Rajan Saha v. The state of Tripura that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers, the doctor can be held liable to pay compensation to the patient.

Moreover, the liability of the doctor cannot be invoked now and then and he can’t be held liable just because something has gone wrong. For fastening the liability, very high degree of such negligence was required to be proved. a doctor or a medical practitioner when attends to his patients, owes him the following duties of care:

A DUTY OF CARE IN DECIDING WHETHER TO UNDERTAKE THE CASE

A DUTY OF CARE IN DECIDING WHAT TREATMENT TO GIVE

A DUTY OF CARE IN THE ADMINISTRATION OF THE TREATMENT

When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable cost. You expect the doctor to be knowledgeable about the latest advances in his field of specialty, and educate you about your diagnosis and prognosis, and explore the best possible solution to your health issue. In short, you expect to be healed. But for millions of people, what they expect is far from what they receive.

DOCTOR ACTING IN A NEGLIGENT MANNER

It is well accepted that in the cases of gross medical negligence the principle of res ipso loquitur is to be applied. The principle of res ipso loquitur is said to be essentially an evidential principle and the said principle is intended to assist the claimant. Res Ipso loquitur means things speaks for itself; while deciding the liability of the doctor it has to be well established that the negligence pointed out should be a breach in due care which an ordinary practitioner would have been able to keep.

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. a doctor is not an insurer for the patient, inability to cure the patient would not amount to negligence but carelessness resulting in adverse condition of the patient would.

In Gian Chand v. Vinod Kumar Sharma it was held that shifting of the patient from one ward to another in spite of requirement of instant treatment to be given to the patient resulting in damage to the patient’s heath then the doctor or administrator of the hospital shall be held liable under negligence.

Also in Jagdish Ram v. State of H.P., it was held that before performing any surgery the chart revealing information about the amount of anesthesia ad allergies of the patient should be mentioned so that an anesthetist can provide ample amount of medicines to the patient. The doctor in above case failed to do so as a result of the overdose of anesthesia the patient died and the doctor was held liable for the same.

DUTIES AND LIBILITY OF A MEDICAL PROFESSIONAL

WHAT ARE THE DUTIES OF A MEDICAL PRACTITIONER TOWARDS A PATIENT?

The duties and responsibilities of a physician are prescribed in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002 made under Indian Medical Council act, 1956.

Obligation to sick – a physician or medical practitioner won’t consistently be certain to deal with each individual who asks for his service but he should continuously be competent to reply to the calls of the ill and will have to be mindful of the high character of his mission or obligation and the accountability he discharges in the direction of his professional responsibilities. a doctor or clinical practitioner advising a patient to seek provider of an extra health practitioner is acceptable however in the case of an emergency, a health practitioner ought to deal with the sufferer. No health care professional shall immediately refuse to offer to heal to a sufferer. However, the surgeon could refuse to deal with the sufferer if he/she is suffering from an ailment which isn’t inside the range of expertise of the treating health practitioner.

Prognosis – The physician should never exaggerate or minimize the gravity of a patient’s condition or ailment. He will have to make certain himself that the sufferer, his family or his in charge buddies have such knowledge of the patient’s condition or sickness as it’s going to serve the nice pursuits of the patient and his/her loved ones.

Patience, Delicacy, and Secrecy – a physician must have patience and delicacy. The confidentiality about the details of the patient and his ailments need to be maintained by the physician. However, in a few cases, the physician may reveal about these matters if he feels that his duty towards the society or any particular person is more important. For example, if there is a new form of hazardous and transmitting disease than the confidentiality of the disease cannot be kept.

The Patient must not be neglected – a physician or a doctor is free to choose whom he will treat or serve but he should respond to any request or need for his assistance in case of an emergency. after undertaking a case, the health care professional must now not forget the sufferer and must no longer withdraw from the case without giving sufficient information to the sufferer and his/her family. Provisionally or fully registered medical practitioner or doctor should not willfully commit any act of negligence that may deprive his patient or patients of the required standard of medical care.

Engagement for an Obstetric case – When a physician who has been engaged to attend an obstetric case is absent or unavailable and another physician or doctor is sent for and delivery accomplished, the acting physician or doctor is entitled to get his professional fees, but should secure the patient’s acceptance or consent to resign on the arrival of the physician engaged.

ACTS OF MISCONDUCT

abuse of Professional position – They should not attempt to do misconduct by using the position in their profession. Committing adultery or improper conduct or maintaining an improper association with a patient constitutes professional misconduct.

Not taking the consent of Patient – Performing an operation without taking the consent or acceptance in writing from the spouse, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is required.

Violation of regulations and laws – The medical professionals must follow the rules and regulations regarding the duties and responsibilities laid down in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

LIABILITY OF A MEDICAL PRACTITIONER IN CASE OF MEDICAL NEGLIGENCE

The liability of the person committing the wrong can be of three types depending on the harm or the injury suffered by the injured person they are

 

CIVIL LIABILITY

Civil liability usually includes the claim for damages suffered in the form of compensation. If there is any breach of duty of care while operating or while the patient is under the supervision of the hospital or the medical professional, they are held to be vicariously liable for such wrong committed. and are liable to pay damages in the form of compensation. at times the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors.

If someone is an employee of a hospital, the hospital is responsible if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital is on the hook for any resulting injuries to the patient. In Mr. M Ramesh Reddy v. State of Andhra Pradesh10, the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. a compensation of Rs. 1 Lac was awarded against the hospital.

CRIMINAL LIABILITY

There may be an occasion when the patient has died after the treatment and criminal case is filed under Section 304a of the Indian Penal Code for allegedly causing death by rash or negligent act. according to S. 304a of the IPC, whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to two years, or by fine, or both. Hospitals can be charged with negligence for transmission of infection including HIV, HBsag, etc. if any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital then the hospital can be held liable for lack of reasonable duty to care. My very own grandmother passed away due to the negligence of the doctors. Due to the carelessness of the doctor that he was in no hurry to rush for his next operation that he forgot to sterilize the equipment’s and as a result there was this transmission of some infection into her blood which infected her entire system and ultimately resulted in her death.

Further in Dr. Suresh Gupta’s Case11 – Supreme Court of India, 2004 – the court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal law for offence under section 304a of Indian Penal Code, 1860 will apply. Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-a, 337 and 338 contain the law of medical malpractice in India.

The conduct of medical malpractice was brought under the Consumer Protection act, 1986, due to the landmark case of the Indian Medical association vs. V. P. Shantha & others12, the judgment in this case defined medical care as a “service” that was covered under the act, and also clarified that a person seeking medical attention may be considered a consumer if certain criteria were met.

• -The service provided was not free of charge or for a
• nominal registration fee;
• -If free, the charges were waived because of the patient’s inability to pay;
• -The service was at a private hospital that charges all patients; or any service rendered which was paid for by an insurance firm.

This meant that certain categories of patients could now sue errant health care providers for compensation under the Consumer Protection Act, 1986, as a breach of contract. Only facilities and doctors that provided all services free of cost to all clients were not liable under the CPA. However, even patients that do not fall under the category of consumers under the act can sue for negligence under the law of Torts. The burden to prove negligence, however, is on the patient.

 

 

 

PART III: DISCUSSION AND ANALYSIS

 

IMPACTFUL CASES OF MEDICAL NEGLIGENCE IN INDIA

 

S.No	Name of the case	Concerned Topic	Observations
1.	National Insurance Company Ltd. v. Hindustan Safety Glass Works Ltd.13	Limitation Provision in Consumer Protection act cannot be strictly construed to disadvantage of Consumer- Supreme Court	In the case, the Insurance Company refused to compensate the Respondent on account of damage caused due to heavy rain during the mentioned period. The Insurance Company admittedly denied relief to the Insured on account of one of the conditions in the Policy which stated that National Insurance would not be liable for any loss or damage 12 months after the event that caused the loss or damage to the insured unless the claim is the subject matter of a pending action or arbitration. The Supreme Court with reference to the case made the following observations: §  That when a claim is made by the insured that itself is actionable. There is no question of requiring the insured to approach a court of law for adjudication of the claim. This would lead to encouraging avoidable litigation which certainly cannot be the intention of the insurance policies and is in any case not in public interest. §  That in a dispute concerning a consumer, it is necessary for the Courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection act was enacted by Parliament. §  That the provision of limitation in the act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s claim.
2.	Kunal Saha v. AMRI14		Famously known as anuradha Saha Case, this case was filed in 1998 with the allegation of medical negligence on Kolkata based a MRI Hospital and three doctors namely Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Balram Prasad. In simple layman term, the wife was suffering from drug allergy and the doctors were negligent in prescribing medicine which further aggravated the condition of patient and finally led to death. In brief this was the facts and circumstances of the case, in this case the final verdict was given by the Supreme court on 24th October 2013 and a compensation of around 6.08 crore for the death of his wife.
3.	Martin F. D’Souza v. Mohd. Ishfaq15	advisory to Doctors and Safeguards in Criminal Prosecution by Supreme Court	Supreme Court noted broadly the precautions which ought to be taken, and the same are reproduced herein below: “Precautions which doctors/hospitals/nursing homes should take: a.      Current practices, infrastructure, paramedical and other staff, hygiene, and sterility should be observed strictly. Thus, in Sarwat ali Khan v. Prof. R. Gogi (OP No. 181 of 1997 decided on July 18, 2007 [NC]) the facts were that out of 52 cataract operations performed between September 26, 1995, and September 28, 1995, in an eye hospital, 14 persons lost their vision in the operated eye. an enquiry revealed that in the operation theater, two autoclaves were not working properly. This equipment is absolutely necessary to carry out sterilization of instruments, cotton, pads, linen, etc., and the damage occurred because of its absence in working condition. The doctors were held liable. b.     No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided. c.      a doctor should not merely go by the version of the patient regarding his symptoms but should also make his own analysis including tests and investigations where necessary. d.     a doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient an expert should be consulted in case of any doubt. Thus, in Indrani Bhattacharjee (OP No. 233 of 1996 decided on 9-8-2007 [NC]), the patient was diagnosed as having ‘mild lateral wall ischemia.’ The doctor prescribed medicine for gastroenteritis but he expired. It was held that the doctor was negligent as he should have advised consulting a cardiologist in writing Full record of the diagnosis, treatment, etc., should be maintained.”

PART IV: CONCLUSION

In India almost every day there is a case of medical negligence which is seen. It is seen in the big as well as in the small hospitals, clinics, dispensaries etc. Due to this a number of people are suffering in our country. The most common type of medical negligence is seen in operations and during the delivery of the child etc. a number of cases has been filed against doctors who negligently leave their surgical instruments in the body of the patient etc., still a number of doctors leave their instruments in the stomach of the patient which could be fatal. In India doctors are treated as gods, hence when some kind of negligent acts are carried out by them, they think that it was the wish of god and don’t make the doctor responsible for this. Illiteracy is another big factor that is not letting our people to know what kinds of wrongs are being committed in our country. Our country is facing a terrible time today as the doctors also are taking advantage of poor people and are making their service sector, a profit oriented sector and changing their vision from providing good health to gaining profits from innocent people by asking them to undergo 1000 tests before treating them for a common cold. The environment in the hospitals like the cleanliness etc. is also not maintained by most of the hospitals not only in the rural region but also in the urban region which results in the spread of communicable diseases faster and easier. The relaxed behavior by the people, by the hospital authorities and the government officers who check these places has resulted in the relaxed behavior of the doctors, which is the main reason that the number of cases of medical negligence is increasing. In my opinion if the common people with the support of the government impose rules on these hospitals and also see to it that these rules are implemented then there is a chance that the standards of our hospitals would improve and automatically the skill and knowledge of specialized and authorized doctors would be used to the fullest. We must also spread awareness in the rural areas [especially] so that poor people don’t get exploited and fight for their rights and ask for the required remedy from the medical practitioner causing them the harm.

INTRODUCTION TO LAW OF TORTS

The word ‘tort’ is derived from a Latin term ‘tortum’ which means ‘to twist’. Hence, ‘tort’ means “a conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful”.

In simple words it is the equivalent of the English term – “wrong”.

The law of torts consists of various ‘torts’/wrongful acts wherein the wrongdoer violates the legal rights of another individual. The law imposes a duty on everyone to respect the legal rights vested in every member of the society; and further, a breach in this duty leads to a ‘wrongful act’.

Thus, ‘tort’ is a breach of duty recognized under the Law of Torts.

According to S.2(m) of the Limitation act,1963 –

“Tort means a civil wrong, which is not exclusively a breach of contract or breach of trust.” Furthermore,

According to Salmon

“It’s a civil wrong for which the remedy is a common law action for unliquidated damages and which isn’t exclusively the breach of a trust or other merely equitable obligation.”

Basically, the common factors in all the definitions given by various thinkers, such as Salmon, Winfield and Fraser are:

1. Tort is a civil wrong, and
2. Every civil wrong isn’t a tort

PART – I: ESSENTIALS FOR A ‘WRONGFUL ACT’ TO BE A TORT

1. There must be in/omission on the part of the defendant –

In order for any ‘wrongful act’ to be considered a tort, (or) for any individual be liable for tort, he must have acted in a way that he wasn’t supposed to or, omitted to act in the manner he was supposed to.

Few examples supporting the above-mentioned definition are as follows;

• negligent behavior
• defamation, or
• trespassing

2. The act / omission should have led to a legal damage (Injuria), i.e., violation of a legal right of the plaintiff –

It is the responsibility of the plaintiff to prove to the court that there was a wrongful act-act or omission- which leads to a breach of legal duty or violation of the plaintiff’s legal right. Thus, unless there’s a violation, there can be no action against the wrong doer in Law of Torts.

The above statement can be expressed by a Latin maxim “Injuria sine damno.”

To understand it better, it can be broken into 2 main parts- First; Injuria, means to violate/breach a right conferred by the laws on the plaintiffs or in unauthorized intrusion of the plaintiff’s right. Second; Damno means a substantial amount of harm- in terms of wealth, comfort or health- that’s caused to the plaintiff.

Hence, Injuria since damno, means where there’s been a violation of the plaintiff’s legal right coupled with the amount of harm done, the plaintiff can and should go to the court, no matter how trivial it may seem, because no breach of a legal right should go un-addressed.

NEGLIGENCE

There are various definitions for negligence.

According to Winfield and Jolowicz – “Negligence is the breach of a legal duty to take care, which results in the damage, undesired; by the defendant to the plaintiff.” Where’s, according to Lord Wright – “Negligence means more than headless or careless conduct, whether in commission or omission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.” and according to the apex Court in Jacob Mathew v. State of Punjab observed that “Negligence is the breach of duty cause 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 something which a reasonable and prudent man wouldn’t do. Where’s, 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 care, by which the neglect the plaintiff has suffered injury to his person/property.”

In all the above mentioned definitions, we can conclude that Negligence has 3 main constituents, i.e., a legal duty to exercise due care on part of the concerned party, Breach of said duty, and Consequential damages.

NEGLIGENCE – AS A TORT AND A CRIME, AND NEGLIGENCE UNDER CONSUMER PROTECTION LEGISLATIONS

NEGLIGENCE AS A TORT

As mentioned in chapter 1, Tort is a civil wrong; the duties and rights in tort is fixed by the law; the duties are owed in rem, i.e., to the world at large; and all wrongful acts can be remedied by filing for unliquidated damages.

NEGLIGENCE AS A CRIME

It is a well-known fact that for any action to be deemed as criminal, there needs to be men’s rea, i.e., intention or a guilty mind, regardless of the final act of the wrong-doer. Hence, if there is a guilty mind the (medical) professional will be held liable. It is equally important to remember that under Criminal Law, rashness and recklessness mounts to crime. Thus, to prove medical-criminal negligence against a professional, the degree of rashness and recklessness needs to be much higher.

Distinguishing the difference between negligence as a tort and as a crime, the Supreme Court, in Jacob Mathew v. State of Punjab, observed,

“To fasten liability in Criminal Law, the degree of Negligence has to be much greater             in comparison of negligence enough to fasten liability for damages in Civil Law.

The essential ingredient – mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R v. Lawrence2, Lord Diplock spoke in a 5-judge bench (with all the others in agreement). He reiterated his opinion in R v. Caldwell3, and dealt with the concept of recklessness as constituting mens rea in Criminal Law. His Lordship warned against adopting a simplistic approach of treating all problems of a criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent person to the possibility that his act was capable of causing the kind of serious harmful consequences occurring was not so slight that an ordinary prudent person would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being   any such risk or having recognized that there was such risk, he nevertheless goes on to do it.”

NEGLIGENCE UNDER THE CONSUMER PROTECTION LEGISLATION

Ever since professions have been included under the purview of consumer protection laws; medical practitioners too have felt the heat. It is on a footing different from any other kind of negligence.

Under consumer protection laws, medical negligence is another form of deficiency in service. It is most akin to the liability under the law of torts. But there is stricter and broader liability in this situation as failure to exercise skill and care as is ordinarily expected of a medical practitioner is the test under consumer protection laws.

Admittedly, doctors have an extremely difficult duty to perform. They are the ones in whose hands a patient place what is most valuable to each human – their lives. It is for this reason that doctors are expected to exercise a very high degree of skill and care, but this is also the precise reason why they should not be inhibited in the exercise of their duty. Therefore, the laws imposing liability on medical practitioners have been tailored to accord to practitioner’s maximum possible protection.

NEGLIGENCE BY A PROFESSIONAL

In the law of negligence, professionals such as lawyers, doctors, architect. In the category are persons professing a particular skill. any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possess the requisite skill for performing the task. The apex Court in Jacob Mathew v. State of Punjab, explained:

“any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill he professes to possess shall be exercised and exercised with reasonable degree or care and caution. He does not assure the client of the result. a lawyer does not tell his client that he will win the case in all circumstances. a physician does not guarantee full recovery of his patient in every case. a surgeon cannot and does not guarantee that the result surgery will be beneficial, much less to the extent of 100% for the person to be operated on. The only assurance that such a professional can give is that he possesses the requisite skill in that particular branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all, what the person approaching the professional can and should expect. Judged by this standard, a professional may be held liable for negligence on one out of two findings: either he was not possessing the requisite kill which he professed to have possessed, or, he did not exercise, with reasonable care, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary, competent person exercising ordinary skill in that profession.”

 

MEDICAL NEGLIGENCE IN THE INDIAN SENARIO

Of late, the Indian society is experiencing an increase in awareness when it comes to patients’ rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability. By and large these litigate claims are preferred claiming redressal for the suffering caused due to medical negligence, vitiated consent, breach of confidentiality arising out of doctor-patient relationship. The controversial Supreme Court is ruling as to the application of Consumer Protection Act, 1986 (COPRA) to the medical profession apparently gave fillip to such development. This patient-centre initiative of rights protection is required to be appreciated in the economic context of rapid decline of State spending and massive private investment in the sphere of health care system, and the Indian Supreme Courts’ painstaking efforts to Constitutionalist “Right to Health” as a fundamental right. The obtaining indicators point towards further entrenchment of such pursuit for protection of patients’ rights in the days to come. as of now, the adjudicating process with regard to medical professional liability, be it in a consumer forum or a regular civil or criminal court, considers common law principles relation to negligence, vitiated consent and breach of confidentiality. In the process, the adjudication forums caught between competing and conflicting interpretations of English and American legal principles. In view of the fact these issues depend of identified standards of care, application of foreign principles seemingly devoid of social and cultural relevance would undoubtedly lead to arbitrary decisions. as a result, either the patients’ or the professionals’ interests would be in jeopardy.

RIGHTS OF A PATIENT

The Ministry of Health and Family Welfare (MoHFW) has released a ‘Charter of Patients Rights’ prepared by the National Human Rights Commission (NHRC) that includes all the lawful rights according to the Constitution of India.

Right to know the information – Physicians or their qualified assistants are required to provide ample information about your sickness, its analysis (provisional or demonstrated, as it usually is), proposed investigation and feasible complications to the patient. If the sufferer will not be in a state to recognize this, the health care provider or their assistant is required to furnish the information to the caretaker. This has to be accomplished in a simple language that the patient or caretaker will appreciate. apart from this, sufferers have the right to grasp the identity and respectable repute of every medical professional and assistant as good as the major health practitioner who’s treating them. Expertise concerning bills of medication wants to be given in writing.

Right to see and check records and reports related to their ailment – Patients or their respective caretakers have the proper to entry the originals or copies of case papers, indoor sufferer documents, and investigation studies. Investigation experiences must be made to be had to them within 24 hours of admission or seventy-two hours of discharge. The hospital is accountable for providing a discharge abstract or a death abstract, in the case of a dying, to the caretakers or family members of the sufferer with customary copies of investigations.

Right to receive medical care during an emergency – In the case of an emergency, you can avail hospital treatment in any executive or confidential health facility. Underneath article 21 of the structure, which ensures that every person has the proper right to life and private liberty, you have got proper right to prompt emergency care with the aid of medical professionals without compromise on the standards of care, safeguard and without needing to pay full or an advanced cost to the health centre.

Right to give informed consent – If a hospital decides upon carrying an invasive investigation or surgery or chemotherapy on a patient, they require doing so after finishing a correct policy system. The general practitioner specifically in control of a patient has to provide an explanation for the risks, consequences, and process of the investigation or surgery in the element and an easy language before supplying the protocol consent type to the sufferer or to the responsible caretaker.

Right to have confidentiality, human dignity and privacy related to their ailment – Now this one is a particularly identified right, mainly for those who follow television suggests about hospitals or doctors. The code of ethics dictates medical professionals to hold knowledge concerning the ailment and medication plan for the patient in strict confidentiality from all people besides the patient and their caretakers. Unless it is the best case the place sharing this knowledge is within the interest of shielding others or because of public well-being issues. Within the case of a feminine patient, she has the proper to demand the presence of another girl if the clinical practitioner checking or treating her is male. Having stated this, the medical institution is accountable for upholding the respect of every patient, irrespective of their gender.

Right not to be discriminated on any basis regarding medical care – This point brings us to the rights of a patient being upheld without discrimination established on their ailment, situation, HIV reputation or on their gender, age, religion, caste, ethnicity, sexual orientation, linguistic or geographical or social origins. Headquartered on the above traits, no person may also be subjected to discriminatory treatment, and the employees of the clinic are liable for ensuring this.

Right to safety and quality care according to standards of required medical care – There is a list of provisions that come under the list of quality care standards. This includes Safety and security, Cleanliness, infection control measures, and sanitation facilities and safe drinking water, healthcare that abides by the latest standards, norms, and guidelines under the National Accreditation Board for Hospitals, to be attended to, treated and cared for in a professional manner and with the principles of medical ethics and the right to seek redressal by patient or caretakers.

Right to choose or select any alternative treatment to cure their ailment if options are available – Hospital employees and medical professionals are dependable for clarifying all cure choices to the sufferer/caretakers. after radical gain knowledge of their alternatives, the patient/caretakers can prefer to select a cure that will or is probably not the surgeon’s main recommendation. This also signifies that once the patient/caretakers prefer this substitute healing, they’re going to shoulder the accountability of its consequences.

Right to have transparency in the cost of the treatment and care according to the prescribed cost whenever relevant – as acknowledged, the patient has the correct to have a written account of the costs they’ll have to endure for the remedy they’re receiving. as evidence for this, hospitals are required to have printed brochures and distinguished display boards bearing the names and rates of clinical tactics which can be to be had with them.

Particular schedules of key charges need to be displayed in conspicuous places and must be in both, English as good as the neighborhood language. Patients have the correct to get drugs, instruments, and implants at rates determined with the aid of the countrywide Pharmaceutical Pricing authority (NPPA) and other imperative authorities. Patients have the right to acquire health care offerings that fee inside the variety prescribed through the critical and State governments, on the time of receiving it.

Right to choose or select the source for buying medicines or doing tests – as a patient or a caretaker, you’ve gotten the correct to decide upon which registered pharmacy you want to purchase your scientific provides from. This also entails getting an investigation system (like a blood experiment, for illustration) from any diagnostic centre or laboratory registered beneath the National Accreditation Board for Laboratories (NaBL).

Right to choose or select proper referral and transfer, which is free from contradictory commercial influences – If a patient must be transferred from one healthcare center to one other, a right and unique justification need to take delivery of to them/caretakers along with various options of the brand new healthcare center. They have got to additionally take delivery of a record of cures/drug treatments that have got to be endured after the transfer. This step is not able to be taken unless the patient or their caretaker be given it. Understand that, these selections are not able to be influenced by factors like “kickbacks, commissions, incentives, or other perverse trade practices.”

Right to protection for the patients who are involved in the clinical trials – Consistent with the Ministry of Health and Family Welfare (MoHFW), “all scientific trials need to be carried out in compliance with the protocols and good scientific apply recommendations issued through services, Govt.

Of India as good as all applicable statutory provisions of amended drugs and Cosmetics act, 1940 and rules, 1945 principal medicinal drugs general manipulate service provider, Directorate basic of wellness.” These aspects incorporate consent through the sufferer, written prescription of medicinal drugs or intervention, privacy, and many others.

Right to get the education that a patient requires to know about his ailment   or disease – There’s a list of things that a sufferer wants to be advised about by the medical institution. These have got to be addressed within the language that the sufferer/caretaker knows. This entails main details about their, healthy living practices, their rights and responsibilities, well- being coverage schemes significant to them, relevant entitlements (for charitable hospitals) and how to search redressal of grievances.

Right to be heard and seek redressal about his ailment or disease – Last but not the least, every patient has the proper to address his grievances and give feedback about the healthcare and remedy they received on the hospital or from a specified doctor/assistant. The Ministry of Health and Family Welfare (MoHFW) extra provides,” sufferers and caregivers have the correct to seek redressal in case they are aggrieved, by reason of infringement of any of the above-recounted rights on this charter. This may be achieved with the aid of lodging a criticism with a legitimate special for this cause by using the sanatorium/healthcare supplier and extra with a legitimate mechanism constituted by the federal government corresponding to sufferers’ rights Tribunal forum or scientific organizations regulatory authority because the case could also be.

PART II: BACKGROUND

ESSENTIALS OF NEGLIGENCE

In an action for negligence, the plaintiff has to prove the following essentials:

DUTY TO TAKE CARE

One of the essential conditions of liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws will throw some light upon this essential element. In Grant v. Australian Knitting Mills Ltd.4, the plaintiff purchased two sets of woolen underwear from a retailer and contacted a skin disease by wearing underwear. The woolen underwear contained an excess of sulphates which the manufacturers negligently failed to remove while washing them. The manufacturers were held liable as they failed to perform their duty to take care.

DUTY TO WHOM

Donoghue v. Stevenson5, carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbor. Explaining so as to who is my neighbor LORD aTKIN said that the answer must be “the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

DUTY MUST BE TOWARDS THE PLAINTIFF

It is not sufficient that the defendant owed a duty to take care. It must also be established that the defendant owed a duty of care towards the plaintiff.

In Bourhill v. Young6, the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor- cyclist after passing the tram collided with a motor car at the distance of 15 yards on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident as the tram was standing between her and the place of accident. She had simply heard about the collision and after the dead body had been removed she went to the place and saw blood left on the road. Consequently, she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motor-cyclist. It was held that the deceased had no duty of care towards the plaintiff and hence she could not claim damages.

BREACH OF DUTY TO TAKE CARE

Yet another essential condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he failed to perform that duty.

In Municipal Corporation of Delhi v. Subhagwanti7, a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of persons. The structure was 80 years old whereas its normal life was 40-45 years. The Municipal Corporation of Delhi having the control of the structure failed to take care and was therefore, liable.

In Municipal Corporation of Delhi v. Sushila Devi8; a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.

CONSEQUENT DAMAGE OR CONSEQUENTIAL HARM TO THE PLAINTIFF

The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into following classes: –

1. physical harm, i.e. harm to body;
2. harm to reputation;
3. harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
4. economic loss; and
5. mental harm or nervous shock.

In Achutrao Haribhau Khodwa v. State of Maharashtra9; a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

ESSENTIALS OF MEDICAL NEGLIGENCE

DOCTOR’S DUTY TO ATTEND THE PATIENT WITH CARE

Medicine is such a profession where a practitioner is supposed to have requisite knowledge and skill needed for the purpose and has a duty to exercise reasonable duty of care while dealing with the patient. The standard of the care depends upon the nature of the profession. a surgeon or anesthetist will be determined by the standard of average practitioner in that field while in case of specialists, a higher skill is needed.

If the doctor or a specialist doesn’t attend a patient admitted in emergency or under his surveillance and the patient dies or becomes victim of consequences which could have been avoided with due care from the doctor, the doctor can be held liable under medical negligence. This was held in Sishir Rajan Saha v. The state of Tripura that if a doctor did not pay enough attention to the patients in government hospitals as a result of which the patient suffers, the doctor can be held liable to pay compensation to the patient.

Moreover, the liability of the doctor cannot be invoked now and then and he can’t be held liable just because something has gone wrong. For fastening the liability, very high degree of such negligence was required to be proved. a doctor or a medical practitioner when attends to his patients, owes him the following duties of care:

A DUTY OF CARE IN DECIDING WHETHER TO UNDERTAKE THE CASE

A DUTY OF CARE IN DECIDING WHAT TREATMENT TO GIVE

A DUTY OF CARE IN THE ADMINISTRATION OF THE TREATMENT

When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable cost. You expect the doctor to be knowledgeable about the latest advances in his field of specialty, and educate you about your diagnosis and prognosis, and explore the best possible solution to your health issue. In short, you expect to be healed. But for millions of people, what they expect is far from what they receive.

DOCTOR ACTING IN A NEGLIGENT MANNER

It is well accepted that in the cases of gross medical negligence the principle of res ipso loquitur is to be applied. The principle of res ipso loquitur is said to be essentially an evidential principle and the said principle is intended to assist the claimant. Res Ipso loquitur means things speaks for itself; while deciding the liability of the doctor it has to be well established that the negligence pointed out should be a breach in due care which an ordinary practitioner would have been able to keep.

Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened. a doctor is not an insurer for the patient, inability to cure the patient would not amount to negligence but carelessness resulting in adverse condition of the patient would.

In Gian Chand v. Vinod Kumar Sharma it was held that shifting of the patient from one ward to another in spite of requirement of instant treatment to be given to the patient resulting in damage to the patient’s heath then the doctor or administrator of the hospital shall be held liable under negligence.

Also in Jagdish Ram v. State of H.P., it was held that before performing any surgery the chart revealing information about the amount of anesthesia ad allergies of the patient should be mentioned so that an anesthetist can provide ample amount of medicines to the patient. The doctor in above case failed to do so as a result of the overdose of anesthesia the patient died and the doctor was held liable for the same.

DUTIES AND LIBILITY OF A MEDICAL PROFESSIONAL

WHAT ARE THE DUTIES OF A MEDICAL PRACTITIONER TOWARDS A PATIENT?

The duties and responsibilities of a physician are prescribed in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 or Code of Medical Ethics Regulation, 2002 made under Indian Medical Council act, 1956.

Obligation to sick – a physician or medical practitioner won’t consistently be certain to deal with each individual who asks for his service but he should continuously be competent to reply to the calls of the ill and will have to be mindful of the high character of his mission or obligation and the accountability he discharges in the direction of his professional responsibilities. a doctor or clinical practitioner advising a patient to seek provider of an extra health practitioner is acceptable however in the case of an emergency, a health practitioner ought to deal with the sufferer. No health care professional shall immediately refuse to offer to heal to a sufferer. However, the surgeon could refuse to deal with the sufferer if he/she is suffering from an ailment which isn’t inside the range of expertise of the treating health practitioner.

Prognosis – The physician should never exaggerate or minimize the gravity of a patient’s condition or ailment. He will have to make certain himself that the sufferer, his family or his in charge buddies have such knowledge of the patient’s condition or sickness as it’s going to serve the nice pursuits of the patient and his/her loved ones.

Patience, Delicacy, and Secrecy – a physician must have patience and delicacy. The confidentiality about the details of the patient and his ailments need to be maintained by the physician. However, in a few cases, the physician may reveal about these matters if he feels that his duty towards the society or any particular person is more important. For example, if there is a new form of hazardous and transmitting disease than the confidentiality of the disease cannot be kept.

The Patient must not be neglected – a physician or a doctor is free to choose whom he will treat or serve but he should respond to any request or need for his assistance in case of an emergency. after undertaking a case, the health care professional must now not forget the sufferer and must no longer withdraw from the case without giving sufficient information to the sufferer and his/her family. Provisionally or fully registered medical practitioner or doctor should not willfully commit any act of negligence that may deprive his patient or patients of the required standard of medical care.

Engagement for an Obstetric case – When a physician who has been engaged to attend an obstetric case is absent or unavailable and another physician or doctor is sent for and delivery accomplished, the acting physician or doctor is entitled to get his professional fees, but should secure the patient’s acceptance or consent to resign on the arrival of the physician engaged.

ACTS OF MISCONDUCT

abuse of Professional position – They should not attempt to do misconduct by using the position in their profession. Committing adultery or improper conduct or maintaining an improper association with a patient constitutes professional misconduct.

Not taking the consent of Patient – Performing an operation without taking the consent or acceptance in writing from the spouse, parent or guardian in the case of a minor, or the patient himself as the case may be, constitutes misconduct. In an operation which may result in sterility, the consent of both husband and wife is required.

Violation of regulations and laws – The medical professionals must follow the rules and regulations regarding the duties and responsibilities laid down in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

LIABILITY OF A MEDICAL PRACTITIONER IN CASE OF MEDICAL NEGLIGENCE

The liability of the person committing the wrong can be of three types depending on the harm or the injury suffered by the injured person they are

 

CIVIL LIABILITY

Civil liability usually includes the claim for damages suffered in the form of compensation. If there is any breach of duty of care while operating or while the patient is under the supervision of the hospital or the medical professional, they are held to be vicariously liable for such wrong committed. and are liable to pay damages in the form of compensation. at times the senior doctors are even held vicariously liable for the wrongs committed by the junior doctors.

If someone is an employee of a hospital, the hospital is responsible if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital is on the hook for any resulting injuries to the patient. In Mr. M Ramesh Reddy v. State of Andhra Pradesh10, the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean, which resulted in the fall of an obstetrics patient in the bathroom leading to her death. a compensation of Rs. 1 Lac was awarded against the hospital.

CRIMINAL LIABILITY

There may be an occasion when the patient has died after the treatment and criminal case is filed under Section 304a of the Indian Penal Code for allegedly causing death by rash or negligent act. according to S. 304a of the IPC, whoever causes the death of any person by a rash or negligent act not amounting to culpable homicide shall be punished by imprisonment for up to two years, or by fine, or both. Hospitals can be charged with negligence for transmission of infection including HIV, HBsag, etc. if any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital then the hospital can be held liable for lack of reasonable duty to care. My very own grandmother passed away due to the negligence of the doctors. Due to the carelessness of the doctor that he was in no hurry to rush for his next operation that he forgot to sterilize the equipment’s and as a result there was this transmission of some infection into her blood which infected her entire system and ultimately resulted in her death.

Further in Dr. Suresh Gupta’s Case11 – Supreme Court of India, 2004 – the court held that the legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was as reckless as to endanger the life of the patient, criminal law for offence under section 304a of Indian Penal Code, 1860 will apply. Indian Penal Code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-a, 337 and 338 contain the law of medical malpractice in India.

The conduct of medical malpractice was brought under the Consumer Protection act, 1986, due to the landmark case of the Indian Medical association vs. V. P. Shantha & others12, the judgment in this case defined medical care as a “service” that was covered under the act, and also clarified that a person seeking medical attention may be considered a consumer if certain criteria were met.

• -The service provided was not free of charge or for a
• nominal registration fee;
• -If free, the charges were waived because of the patient’s inability to pay;
• -The service was at a private hospital that charges all patients; or any service rendered which was paid for by an insurance firm.

This meant that certain categories of patients could now sue errant health care providers for compensation under the Consumer Protection Act, 1986, as a breach of contract. Only facilities and doctors that provided all services free of cost to all clients were not liable under the CPA. However, even patients that do not fall under the category of consumers under the act can sue for negligence under the law of Torts. The burden to prove negligence, however, is on the patient.

 

 

 

PART III: DISCUSSION AND ANALYSIS

 

IMPACTFUL CASES OF MEDICAL NEGLIGENCE IN INDIA

 

S.No	Name of the case	Concerned Topic	Observations
1.	National Insurance Company Ltd. v. Hindustan Safety Glass Works Ltd.13	Limitation Provision in Consumer Protection act cannot be strictly construed to disadvantage of Consumer- Supreme Court	In the case, the Insurance Company refused to compensate the Respondent on account of damage caused due to heavy rain during the mentioned period. The Insurance Company admittedly denied relief to the Insured on account of one of the conditions in the Policy which stated that National Insurance would not be liable for any loss or damage 12 months after the event that caused the loss or damage to the insured unless the claim is the subject matter of a pending action or arbitration. The Supreme Court with reference to the case made the following observations: §  That when a claim is made by the insured that itself is actionable. There is no question of requiring the insured to approach a court of law for adjudication of the claim. This would lead to encouraging avoidable litigation which certainly cannot be the intention of the insurance policies and is in any case not in public interest. §  That in a dispute concerning a consumer, it is necessary for the Courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection act was enacted by Parliament. §  That the provision of limitation in the act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s claim.
2.	Kunal Saha v. AMRI14		Famously known as anuradha Saha Case, this case was filed in 1998 with the allegation of medical negligence on Kolkata based a MRI Hospital and three doctors namely Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Balram Prasad. In simple layman term, the wife was suffering from drug allergy and the doctors were negligent in prescribing medicine which further aggravated the condition of patient and finally led to death. In brief this was the facts and circumstances of the case, in this case the final verdict was given by the Supreme court on 24th October 2013 and a compensation of around 6.08 crore for the death of his wife.
3.	Martin F. D’Souza v. Mohd. Ishfaq15	advisory to Doctors and Safeguards in Criminal Prosecution by Supreme Court	Supreme Court noted broadly the precautions which ought to be taken, and the same are reproduced herein below: “Precautions which doctors/hospitals/nursing homes should take: a.      Current practices, infrastructure, paramedical and other staff, hygiene, and sterility should be observed strictly. Thus, in Sarwat ali Khan v. Prof. R. Gogi (OP No. 181 of 1997 decided on July 18, 2007 [NC]) the facts were that out of 52 cataract operations performed between September 26, 1995, and September 28, 1995, in an eye hospital, 14 persons lost their vision in the operated eye. an enquiry revealed that in the operation theater, two autoclaves were not working properly. This equipment is absolutely necessary to carry out sterilization of instruments, cotton, pads, linen, etc., and the damage occurred because of its absence in working condition. The doctors were held liable. b.     No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided. c.      a doctor should not merely go by the version of the patient regarding his symptoms but should also make his own analysis including tests and investigations where necessary. d.     a doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient an expert should be consulted in case of any doubt. Thus, in Indrani Bhattacharjee (OP No. 233 of 1996 decided on 9-8-2007 [NC]), the patient was diagnosed as having ‘mild lateral wall ischemia.’ The doctor prescribed medicine for gastroenteritis but he expired. It was held that the doctor was negligent as he should have advised consulting a cardiologist in writing Full record of the diagnosis, treatment, etc., should be maintained.”

PART IV: CONCLUSION

In India almost every day there is a case of medical negligence which is seen. It is seen in the big as well as in the small hospitals, clinics, dispensaries etc. Due to this a number of people are suffering in our country. The most common type of medical negligence is seen in operations and during the delivery of the child etc. a number of cases has been filed against doctors who negligently leave their surgical instruments in the body of the patient etc., still a number of doctors leave their instruments in the stomach of the patient which could be fatal. In India doctors are treated as gods, hence when some kind of negligent acts are carried out by them, they think that it was the wish of god and don’t make the doctor responsible for this. Illiteracy is another big factor that is not letting our people to know what kinds of wrongs are being committed in our country. Our country is facing a terrible time today as the doctors also are taking advantage of poor people and are making their service sector, a profit oriented sector and changing their vision from providing good health to gaining profits from innocent people by asking them to undergo 1000 tests before treating them for a common cold. The environment in the hospitals like the cleanliness etc. is also not maintained by most of the hospitals not only in the rural region but also in the urban region which results in the spread of communicable diseases faster and easier. The relaxed behavior by the people, by the hospital authorities and the government officers who check these places has resulted in the relaxed behavior of the doctors, which is the main reason that the number of cases of medical negligence is increasing. In my opinion if the common people with the support of the government impose rules on these hospitals and also see to it that these rules are implemented then there is a chance that the standards of our hospitals would improve and automatically the skill and knowledge of specialized and authorized doctors would be used to the fullest. We must also spread awareness in the rural areas [especially] so that poor people don’t get exploited and fight for their rights and ask for the required remedy from the medical practitioner causing them the harm.

REFERENCES

1. I.R 2005 S.C. 3180
2. [1981] 1 ALL ER 974 (HL)
3. 1981 (1) ALL ER 961 (HL)
4. 1935 AC 85;
5. 1932 AC 562
6. 1943 AC 92
7. AIR 1966 SC 1750
8. AIR 1999 SC 1929
9. (1996) 2 SCC 634
10. 2003 (1) CLD 81
11. 2004 6 SCC 422.
12. AIR 1996 SC 550
13. (2017) 5 SCC 776
14. (2014) 1 SCC 384
15. (2009) 3 SCC 1.

REFERENCES

1. I.R 2005 S.C. 3180
2. [1981] 1 ALL ER 974 (HL)
3. 1981 (1) ALL ER 961 (HL)
4. 1935 AC 85;
5. 1932 AC 562
6. 1943 AC 92
7. AIR 1966 SC 1750
8. AIR 1999 SC 1929
9. (1996) 2 SCC 634
10. 2003 (1) CLD 81
11. 2004 6 SCC 422.
12. AIR 1996 SC 550
13. (2017) 5 SCC 776
14. (2014) 1 SCC 384
15. (2009) 3 SCC 1.

 

Authored By: KEESHA KUMAR

Student of Law, Amity Law School, Noida, Amity University Uttar Pradesh

Disclaimer: This article has been published in Legal Desire International Journal on Law, ISSN 2347-3525 , Issue 22, Vol 7