Introduction
The profession of doctor is considered to be a noble profession. However sometimes just like any other human being a doctor can also make mistakes. For a common man, a small mistake at a workplace may cost nothing but for a profession like that of a doctor, even a small mistake can be life-threatening for the patients.
Sometimes it is even seen that the patient has lost his/her life due to medical negligence either done by a doctor or by any other medical staff.
This article covers medical negligence in India, how to deal with it, compensation, punishment, and basically everything you need to follow after you come across any medical negligence case in India.
Keep reading to know more!
What do you mean by medical negligence in India?
Medical Negligence as the name suggests is an act of negligence done by a medical professional or any medical staff which has very adverse effects on the patient and thus it leads to a breach of the doctor’s duty.
Negligence is an offence under the Indian Penal Code, Indian Contracts Act, Consumer Protection Act, Tort, etc.
Medical negligence is a serious crime in India. The doctors are known to be experts in their fields and anyone who visit the doctor expects to be cured and healed completely and not mistreated and harmed even more.
In a field like that of a doctor where the health of people is concerned, a doctor in fact the entire medical team is supposed to be extra careful while performing his/her duties.
Types of medical negligence cases in India
Here are some common types of medical negligence cases seen in India
- Improper administration of medicines
Prescribing or administrating wrong medicine is one of the most common cases of medical negligence in India that has been reported. If this kind of medical negligence happens it is obviously sheer carelessness of the doctor because as a certified doctor he/she should be able to prescribe at least the right medicine to the patient after diagnosis.
- Improper or wrong medical advice
A patient comes to the doctor with a lot of hope that the doctor will be able to give the right advice and solve his ailments and being a doctor it is his duty to give the advice which is in the best interest of his patients. If the doctor isn’t able to give the correct advice certainly he is not fit for being called a doctor and yes wrong medical advice comes under medical negligence.
- Improper administration of anesthesia
Anesthesia is an injection that is given before any surgery so that the patient doesn’t feel any pain during the procedure. A special doctor called an anesthesiologist is called for administering this injection because it doesn’t only control the pain and sensation but also affects the heart rate, breathing rate, blood pressure, and body temperature.
The anesthesiologist is responsible for preoperative evaluation. He must coordinate with the surgical staff and even post-operative management of the patient. If the anesthesia is administered wrongly, it can cause permanent damage to the patients.
- Improper or incorrect surgery
Doing an incorrect surgery is big negligence on the part of the surgeon.
An incorrect surgery may occur due to several reasons like
- Lack of skills
- Lack of experience
- Lack of focus
- Taking shortcuts during the surgery to save time
- Taking a wrong step
- Doing the surgery with a wrong method
- Communication failure
An incorrect surgery may prove to be life-threatening to the patient and comes under medical negligence.
- Misdiagnosis or delayed diagnosis
Misdiagnosis or delayed diagnosis is also one of the common forms of medical negligence.
This may happen due to reasons like
- Incompetency of the doctor
- Lack of focus
- Unavailability of the right tools
- Lack of experience
If an ailment is misdiagnosed, the doctor will obviously give the wrong advice and will prescribe the wrong medicines and the wrong line of action for the treatment. This will result adversely on the health of the patient.
Diagnosing an ailment incorrectly can prolong the ailment which can prove to be more fatal for the patient. Delay in diagnosis, especially in matters such as Heart attack, cancer, appendicitis, etc. can be dangerous to life.
- Infections caused by poor hygiene
Poor hygiene may result in infections and sepsis in the patients. If the medical staff fails to maintain proper hygiene and cleanliness of the patient, it can result in a lot of infections and ultimately deteriorates the health of the patients.
Sometimes during surgery, the surgeon neglect to clean their surgical tools and this may cause severe infection and even death of the patient.
- Leaving a foreign object in the body
You may have heard about these cases in the news channels where a doctor left a pair of scissors or a towel inside the body of the patient during the surgery. Sometimes people who have undergone any kind of surgery suffer an infection or sepsis weeks or months post the surgery and only after diagnosing do they find out that it is due to the foreign object that is left unknowingly in the body during the surgery. It is a big mistake on the surgeon’s part and a big example of medical negligence.
- Organs being perforated or lacerated
There have been several cases when the doctors have made potentially fatal mistakes of perforating or lacerating organs or bowels or vessels which go unnoticed and result in uncontrollable bleeding or beyond-repair organ damage. In the worst cases, it can also result in organ failure or even death.
Components of medical negligence
Whenever any medical negligence happens, it comprises of majorly three components, which are as follows.
- Existence of a legal duty
When an individual approached a doctor, he goes with a trust that the doctor he is going to will possess certain skills or special knowledge.
There is no signed legal contract between a doctor and a patient but it is the legal duty of the doctor to carry out his practice without being negligent. There also exists a legal duty to care and a lack of proper care can hold the doctor liable fo breach of professional duty. If a doctor fails on his part and causes harm to his patient, it could be termed as negligence on his part.
A doctor or a medical practitioner (while attending to his/her patients), owes the patient the following duties of care:
- A duty of care in deciding whether or not to take the case
- A duty of care in deciding what treatment is best suited and given
- A duty of care while treating the patient.
- Breach of that legal duty
If the doctor or the professional exercising the skill he is known to be a master of, does something which an ordinary person would not have done, or if he/she fails to do something with an ordinary person would have done in a similar situation, then there certainly exists a breach of legal duty. The standards used to determine the breach of legal duty are not very high but are those that are expected from a person in the ordinary course of treatment by a professional.
- Damaged caused by a breach of that legal duty
The medical field is such that the breach of legal duty will cause damage ultimately. The injury or harm caused by the breach of legal duty or the injury caused by the negligent medical practitioner is liable for compensation. Several cases of medical negligence are reported in our country that result in severe injuries and in some cases even the death of people has happened due to medical negligence.
What to do if you come across medical negligence case?
In Case you are aggrieved by medical negligence, you can either file a civil suit or a criminal suit.
Under the Indian Penal Code, the following provisions deal with medical malpractice-
- Section 52- Good Faith
- Section 80- Accident in doing a lawful act
- Section 81- Act likely to cause harm but done without criminal intent and to prevent other harm
- Section 304 A- Causing death by negligence
- Section 337- Causing hurt by act endangering life or personal safety of others
How to file a case of medical negligence: Procedure
Here is how you can file a case of medical negligence against the accused hospital/ doctor.
Procedure for civil action in consumer court
- Before initiating any action, the victim of medical negligence should hire a good advocate who is well versed with consumer laws. Such lawyers can bring the best advice to your table.
- The first and foremost step is the issuance of legal notice against the doctor who is accused of medical negligence. The notice must state the dispute of the complainant in detail and state the reliefs being sought. This enables the parties to know the other’s case and take action for resolution.
- The next step is to determine the jurisdiction for filing the complaint. The consumer protection act aids in deducing the pecuniary and territorial jurisdiction within which a complaint can be instituted as per the facts of each case. Pecuniary jurisdiction relates to the monetary value cases that can be maintained in a forum.
- It is worthwhile to take a second opinion from a reputed doctor in cases of medical negligence. This helps in establishing a prima facie case for the complainant before the consumer commission.
- If the issue doesn’t get resolved at the pre-litigation stage, the next step is to get the consumer complaint drafted by an experienced advocate. Once a complaint has been drafted, it is to be filed in the consumer commission of appropriate jurisdiction.
Procedure for criminal action
The Offence provided under 304 A of the IPC is a cognizable offence, therefore the police can file an FIR or investigate even without express orders from the court on his behalf.
- To initiate criminal action for a medical negligence case, the aggrieved person must file a complaint to the appropriate police station or have it submitted online.
- The judicial processes can also be set in motion through section 190 of the code of criminal procedure by filing a complaint before a magistrate, for taking cognizance of the offence.
- The magistrate can either take cognizance and carry out an inquiry himself or direct the police to register an FIR as per section 156(3) of the code of criminal procedure.
- After the FIR has been registered, investigations shall be carried out by the police for the evidence collection, interrogation, and the statement of the accused. The police may also arrest the accused if necessary.
- After the investigation, if the police find that the offence is made out under section 304 A then a charge sheet shall be filed before the magistrate.
- Thereafter, arguments shall be set forth before the court on the framing of charges and the trial will continue.
Procedure for disciplinary action
Action in disciplinary proceedings is aimed at the imposition of penalties pursuant to disciplinary action by the governing body of medical professionals. i.e. the Indian medical council. Action in such proceedings is taken pursuant to the Indian Medical Council regulations, 2002 formulated and enforced under the Indian Medical Council Act of 1956.
- The first step of any legal proceeding will remain the same i.e. hiring a good advocate.
- The next step is to make a complaint before the appropriate medical council for disciplinary action by any aggrieved person for professional misconduct.
- Such a complaint shall be decided by the Indian Medical Council within a period of 6 months through the help of a peer group as per guidelines prescribed by the medical council of India.
- During the pendency of the complaint, the accused doctor may be restrained from performing the procedure of practice that is under scrutiny, being the subject matter of the complaint.
- The appropriate medical council can take such action as necessary including suspension and also removal of the name of the accused from the accused doctor for such period as it deems appropriate.
Documents required for filing a medical negligence case
Before filing the lawsuit against the medical negligence case, here is the list of documents that are required to best present your case before a court of law. Let us see what are they.
- The diagnosis done by the accused hospital or the doctor
- Medical reports of tests conducted by the accused hospital/ doctor
- Medical prescriptions issued by the accused hospital/doctor
- Documentary evidence of procedures and their results performed by the accused hospital/ doctor
- Any proof that proves the victim was mistreated by the accused hospital/doctor during the treatment?
- The medical report of an independent doctor/ hospital certifying the injury/ harm or death of the victim caused due to medical negligence on the part of the accused doctor/ hospital
- Copy of legal notice addressed to the accused doctor/ hospital
- Reply of that legal notice by the accused doctor/ hospital, if any
Where should a medical negligence case be filed?
A consumer complaint seeking relief against a medical practitioner can be filed in one of the following forums provided under the consumer protection act.
- National consumer disputes redressal commission
- State consumer disputes Redressal Commission
- District Consumer Disputes Redressal Commission
The appropriate forum for filing a complaint in the facts of each case shall depend upon the pecuniary and territorial jurisdiction of each commission.
1- Pecuniary Jurisdiction
- District Commission – Amount not exceeding Rs. 1 Crore.
- State Commission – Rs. 1 Crore to 10 Crore
- National Commission – Amount over Rs. 10 Crore
2- Territorial jurisdiction
Territorial jurisdiction is determined by the place where the opposite party lives or usually carries on business or personally works for profit gain.
So, for initiating criminal proceedings against a doctor under section 304 A of the IPC, being a cognizable offence, you will have to approach the appropriate police station for registering your FIR. If the police refuse to record an FIR, then in that case the aggrieved person may also send the substance of the information to the Superintendent of Police. The SP upon being satisfied that the information discloses the commission of a cognizable offence under Section 304A can investigate the case himself or direct a subordinate officer to do so.
An aggrieved person may also approach a magistrate as per Section 190 of the CrPC for it to take cognizance and if required order registration of FIR under Section 156 (3).
Compensation for medical negligence in India
Do you get compensated for medical negligence in India?
So, compensation for medical negligence falls under the civil remedies available to the victims of medical negligence. The law in India entitles victims of medical negligence to maintain a complaint in the consumer commissions set up under the consumer protection act seeking monetary compensation.
So yes, it is quite possible that you will get compensated for the medical negligence, The amount of compensation will be based upon the severity of the injury/harm or death caused to the patient/ victim.
Punishment for a medical negligence case
As you have read in the earlier sections that a case of medical negligence in India can be pursued in a court of criminal law under the specific provisions of the Indian Penal Code, 1860 in this regard.
Also, the remedy in criminal law is co-extensive with civil remedies. Therefore, an aggrieved person can initiate both civil as well as criminal proceedings in a court of law for medical negligence.
Section 304 A of the Indian Penal Code has this provision for death caused due to negligence and states that ‘whosoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years or a fine or both.
How can a lawyer help you?
See being common people we don’t have much knowledge about law, and proceeding with a civil suit is no joke. You need an expert person who can guide you throughout the process. A lawyer can best advise you on the merits of your case and the best plan of action to adopt moving forward.
Not only the advice but a lawyer can perfectly draft your notice. So the first thing you need to do is hire a good and experienced lawyer. They will not only help you gain a proper understanding of your rights and remedies available in law but also manage the documentation required in this regard to best put forward your case. A lawyer will prepare your matter, based on the facts and circumstances of your particular case and will also represent and argue on your behalf. He/She will be able to tell you if you should go for a civil remedy or file a criminal case, or both.
Conclusion
Medical negligence in India is a serious issue and there should be strict laws and punishments for medical negligence. I hope this article would have helped you in some or the other way. If yes do not forget to share this piece of information with your friends and family.
For any further queries regarding the article or the lawyer, please feel free to write a comment and we will get back to you soon.
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