In the past few years, the number of medical negligence cases in India has increased by 400%!
The recent medical negligence cases in India by Delhi’s Max Hospital, Shalimar Bagh, which lost its license for declaring an alive newborn child to be stillborn, and Gurgaon’s Fortis Memorial Research Institute for the death of a 7-year old girl who suffered from dengue, have once again brought up the issue of rampant medical negligence in India in private and public hospitals.
A few months back, the Gorakhpur tragedy raised concerns over the alarming increase in cases of medical negligence in India. The death of around 100 babies highlighted the lack of appropriate medical facilities in government hospitals and started a blame game as to who is responsible for the medical negligence that devastated more than 100 families. However, the legal definition and remedy for medical negligence in India are still unknown to many. Cases of medical negligence in India are at a all time high and there is need to put a stop on it. Punishment for medical negligence in India is provided under Indian Penal Code as well as under Consumer Protection Act. Thus as per the medical negligence law in India doctor can be imprisoned and fined as well.
What is Medical Negligence in India?
In the legal parlance negligence has different meaning then from its general sense. In the general sense negligence simply means carelessness but in the legal world negligence is more than mere carelessness it is the failure of the person to do or perform certain act which he was expected to do in course of his duty. Further, an act to be negligent in the legal arena the failure of reasonable duty should be such that it result in an injury for third party.
We all have heard and seen examples where doctor has left an instrument inside the patient’s body or the declaration of alive baby as dead, prescribing wrong medicines, etc all are examples of cases of medical negligence in India.
Medical negligence is an act or omission by a medical practitioner, which a reasonable, careful and competent professional could have avoided. A medical practitioner is expected to have ‘reasonable skills’ and to practice the profession with ‘ordinary care’. Therefore, in numerous court decisions, it has been held that a medical professional can be held liable if they have not employed the highest possible degree of care.
Professionals in the medical field include doctors, nurses, etc., who are responsible for the health and well-being of their patients. There is a certain level of expectation that these professionals will provide the highest level of care and safety. However, some healthcare providers whether in the private or public sector, fail to live up to their responsibility and neglect their responsibility by acting malevolently for monetary gains. It is ultimately the patient and his family that end up suffering either due to severe complications or even death.
Recently, more than 20 people were injected with a contaminated medicine in their eyes at Guru Teg Bahadur hospital in April which affected their vision and was put at a risk of losing their eyesight completely. In another horrific incident, a government hospital refused admission to a pregnant woman on grounds that she wasn’t ready to give birth. She ended up giving birth to her child on the road outside the Jaipur hospital at 11 pm.
Doctors, nurses and even the hospital authorities are expected to put the patient's’ interest above everything and apply their knowledge and expertise in an optimum manner. In case of emergency, a hospital is bound to provide immediate care to the patient and if the hospital refuses to provide adequate care, it’ll be liable for medical negligence.
Additionally, in case of major treatment, surgery or invasive investigation, the hospital has to take ‘informed consent’ from the patient or their family member. Failure to carry out this obligation can attract tortious liability for the doctor as well as the hospital. However, death due to medical negligence in India shall be treated as medical malpractice case in India.
Sometimes, negligence of a medical practitioner can be palpable that a criminal proceeding can also be initiated against them. Under the Indian Penal Code, a doctor can be punished for medical negligence under Section 304A for causing death by rash or negligent act. A doctor will not be criminally liable if the patient has died due to some error in judgement or accident.
Medical Negligence in India by Hospitals
When it comes to the liability of a hospital, it can be held for medical negligence either directly or vicariously. A hospital’s direct liability arises when the hospital itself was deficient in providing the safe and suitable environment to the patient as promised. Vicarious liability of hospitals in medical negligence cases arises when an employee has acted negligently and the hospital is indirectly liable for its employee’s actions. The rule of vicarious liability in medical negligence is applied to the hospitals because hospital is the employer and the doctors are its employees and the rule of vicarious liability India states that for negligence cases of employees an employer is liable thus the rule arises the vicarious responsibility in hospitals.
There are certain instances when a hospital will be directly held liable for medical negligence:
Improper maintenance of hospital resulting in patient’s injury or death.
Failure in providing a safe and suitable environment as guaranteed, pertaining to improper or malfunctioning equipment, insufficient accommodation, etc.
Deceptive or misleading signboards, advertisements, and notices, false claims of availability of certain facilities.
Charging for a facility which was not provided, or charging more than what is mentioned in the displayed list of charges or agreed.
Improper maintenance of records of treatment and failure to hand over such records to the patient or his authorized attendant/legal authorities within 72 hours, which is seen as the violation of the Medical Council of India Regulations, 2002.
When does liability of Doctor arises?
The liability of doctor does not arises simply when an injury is suffered by the patient. The liability of the doctor arises when the injury suffered by the patient is the direct result of the negligent act of the doctor or any other medical practitioner. Thus, not every injury of patient fall under the purview of medical negligence in India. For a act to be medical malpractice cases in India there has to be a direct relation between the injury and the negligent act of the medical practitioner. There has to be breach of duty by doctor or any other medical practitioner such as nurse, hospital staff etc. For the negligent act of medical practitioner the liability of hospital arises vicariously.
What to do in case of Medical Negligence by Doctor or Hospital in India?
In medical negligence cases, the victim or his family members have the option to use two legal remedies.
Firstly, a criminal complaint can be filed against the hospital or doctor for medical negligence. The Indian Penal Code prescribed negligence as a crime under Section 52, 80, 81, 88, 91, 92 304A, 337 and 338. Section 304A deals with the crime of causing a person’s death due to negligence or rash acts.
Secondly, a consumer complaint can be filed for medical negligence case under the Consumer Protection Act, 1986. Medical negligence is treated as a deficiency in services by hospital or doctor under the consumer protection laws in India. A medical negligence consumer complaint can be filed in the appropriate consumer forum. The consumer forums in India are divided into 3 tiers:
District Forum: Cases with total value up to Rs. 25 lakh are filed.
State Consumer Redressal Forum: Cases with the value above Rs. 25 lakh and below Rs. 1 crore are filed here.
National Commission: Cases with total value of Rs. 1 crore and above are filed here.
The Indian judiciary has been proactive when it comes to medical negligence cases in India. Over the years, the court has provided for different laws and procedures to deal with such cases and made an effort to protect the patients alongside safeguarding the doctors against vicious claims.
A person must consult medical negligence lawyers in India if he falls victim to medical negligence in India at the hands of any doctor or hospital. Hire the best medical negligence lawyer anywhere in India from MyAdvo. Email us at firstname.lastname@example.org or call us at +919811782573.
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