ABSTRACT
Over the years, it is safe to say that India has shown a clear struggle with the formulation of laws with regards to the topic of medical negligence. Malpractice and negligence are two concepts that have equally contributed to the growth in death rates, and the downfall of the healthcare industry. In India, while healthcare workers are held legally accountable for any misconduct that results in patient injury, there is a heavy lack in laws that govern medical negligence and the performance of malpractice. Comprehending the legal framework surrounding medical misconduct in India is vital so as to understand what actually exists in its legal framework that concerns these topics. This scope of this paper aims to discuss the topics of negligence and medical malpractice in India, how this affects the duty of care owed to patients by healthcare professionals as well as the causes behind such negligence or malpractice. Furthermore, this paper is an empirical study on the legal frameworking concerned with healthcare and medical malpractice, and how there exists a lack of such laws in the Indian justice system.
Keywords: Indian law, medical malpractice, negligence, duty of care, absence of proper legal frameworking, justice system
INTRODUCTION
As we may know due to prior knowledge, negligence is an act committed against human rights, where there is a duty of care, a breach of said duty, leading to the violation of one’s rights. Over the years, it is important to note that India has brought about significant changes in health and medical industries, which has indeed increased the quality of living, and scope for treatments. However, amidst this positive change, when it comes to patients, “medical negligence” is still a cause for concern – a major one at that. We once revered and regarded doctors as godly figures, however this sudden uproar has led to a situation of uncertainty; are doctors really our ‘saviours’?
The entire notion that is “medical negligence” deals with and comes under the confines of professional negligence – when a professional fails to take responsibility for their duties and obligations, further causing their client, patient or customer to suffer damages or injuries, it is termed as a case of professional negligence. Let’s take an example; Bolam v. Friern Hospital Management Committee (1957). In this case, the claimant, Bolam, had argued that there was a breach of duty on the side of the hospital, as the doctor had not used any muscle relaxants or restraints to keep the claimant in a spot while performing therapy, i.e., electro-convulsive therapy. The verdict by McNair J was as follows; “The professional will not be in breach of their duty of care if they acted in a manner which was in accordance with practices accepted as proper by a responsible body of other medical professionals with expertise in that particular area. If this is established, it does not matter that there are others with expertise who would disagree with the practice.”
Bolam’s claim on negligence had ultimately failed as considering the time period wherein this case had taken place, it wasn’t a practice as followed by doctors, i.e., the usage of legalised drugs such as muscle relaxants weren’t used on patients. Following this, McNair J had further stated that the Bolam Test would prove to be necessary to attest whether an act of negligence has taken place, however, this would not apply to certain factors – one, the patient is aware of the risks of a given treatment, procedure or surgery according to the correct diagnosis; two, non-medical advice; three, the patient choosing a risky treatment amongst other treatments that may have been suggested. Notwithstanding, though such cases exist in India – many of them, in fact, medical negligence is not a term that has been clearly elucidated or defined anywhere in any of the legislations that exist under the sphere of Indian law today.
RESEARCH METHODOLOGY
The present study is based mostly on secondary sources of information and employs the doctrinal approach of research. Its main attention relies on rulings rendered by Indian courts as well as a number of regulations that regulate the relevant domains covered in the paper. Other parts of this study contain material from other coursebooks, and websites that offer details on the subjects highlighted above.
REVIEW OF LITERATURE
A Study on Medical Negligence in India: Retrospective and Prospective Article
In his research study and analysis, C.P. Khamari speaks of how the medical industry has heavily commercialised itself over the last decade. The author has provided readers with the basic information of medical negligence, beginning by highlighting how human beings hold doctors on a high pedestal in each of their lives, going on to speak of human rights and its relation to medical negligence. Furthermore, he speaks of the components and consequences that lead to medical negligence, and gives a detailed judicial analysis for viewers to analyse and ponder over. In his conclusion, the author states that the need for proper legislation is purely the duty of the medical fraternity in India.
Medical Negligence in India: A Critical Study
In his detailed judicial analysis of existing case laws, D. S. Tiwari, a professor at Kalinga University, presented a paper that threw light on the interpretation of laws related to the medical profession as by the Supreme Court. He states how medical negligence, being a serious issue, still comes under the sphere of such a noble profession, that being one of a doctor. Due to the incompetence of rather a few doctors out of a bunch, many patients find themselves suffering due to the loss of something after such an experience.
Medical Negligence: An Overview
In his research paper, the author, Bratin Kumar Dey sought to highlight how there is a lack of inspection on the criminal aspect of medical negligence, as compared to medical negligence under the domain of consumer protection and rights of consumers. Now every individual has the right to seek justice and be provided with a remedy by the law. Due to the inadvertent conduct of doctors, a countless number of patients have suffered losses and damages, even leading to psychological trauma. He argues that medical negligence isn’t simply just a matter that must be examined by the judiciary, as medical professionals are needed to better interpret the meaning of medical negligence and misconduct, as practices continue to evolve in this ever changing world.
Medical Negligence Laws in India: Do They Favour Doctors?
Due to the lack of proper legislations in the field of medicine – in the area of medical negligence – patients find it hard to get justice, not particularly in terms of compensation, but rather in the form of criminal liability or disciplinary action. Nitesh Srivastava in his article speaks of how there is a high possibility that laws in India that have to do with medical practitioners getting involved in misconduct, are etched in favour of them.
Law of Medical Negligence in India
Bringing into light how medical negligence has come into play, the author of this research article highlights how the concept of medical negligence has no fixed definition, and how its status hasn’t been set down in stone. This article also aims to speak of how medical negligence laws are finally coming into play, and the current developments of these laws. It deals with the topics of civil and criminal law, and damages with regards to negligence.
THE GREY AREA OF MEDICAL NEGLIGENCE: AN INSIGHT
It is agreed that no singular man is perfect in this world – this even applies to healthcare professionals, most especially surgeons and physicians. Taking this to be a fact, it is true that yes, doctors may also make small mistakes; however, some of these mistakes can lead to something more unforeseen, possibly fatal when it comes to treating patients. Some of these situations may entail that no reasonable or well-taught healthcare professional would commit such a mistake. Now of course, it’s important to keep in mind the fact that every profession is a practice, and so is medicine. However, the failure to owe up to the duty of care that healthcare professionals have, can have a few serious consequences, unless the claimed “act” of negligence doesn’t fall under the sphere of current or modern medical practices being followed. This is known to be negligence – the inability to owe up to or the dereliction of one’s duty as an individual as owed to another, leading to the infringement of another’s rights – a commonly used term under tort law. Notwithstanding, it is important to note that negligence has a set of elements that must be highlighted while making such a claim; a duty, breach of said duty, damages caused due to this breach.
Before any medical procedure or treatment, it is the responsibility of the doctor, surgeon or specialist to inform all the risks involved with said procedure or treatment, before commencing with it. Unfortunately, while some doctors, in good nature at rare times avoid giving full disclosure, it may still lead to a case of medical malpractice or negligence. Moreover, this “good nature” is something that is being exploited by other doctors who perform procedures or treatments carelessly, causing direct harm to the patient. According to statistics as provided by the National Library of Medicine, the number of lawsuits and claims filed against doctors is that of medical negligence, amounting to 5.2 million lawsuits in total. Furthermore, about 80% of these lawsuits dealt with cases of surgical errors leading to death or other health complications in patients.
A point that is of significance in a few leading cases is the Bolam Test, a test as set down by McNair J during the proceedings of Bolam v. Friern Hospital Management Committee. In Jacob Mathew v. State of Punjab (2005), the petitioner argued that there was a duty of care that was breached by the accused, Jacob Mathew, as he had to provide the dying patient, Jeevan Lal Sharma with an oxygen cylinder. Unfortunately, Jeevan Lal passed away by the time they realised they had no oxygen cylinders in the hospital. It was ruled that while the hospital could be held responsible in this case of negligence under civil law, Dr. Mathew couldn’t be blamed for the lack of resources as his primary job is to treat the patient.
From this, what we can make out is that when a medical practitioner fails to provide the proper care needed to treat a patient using the skills that a practitioner of his kind would own, it can amount to medical negligence, or even go as far as to being counted as medical malpractice. Medical negligence, in short, may be defined as a lack of skill and reasonable care of a medical practitioner to his patient, and this lack of skill or reasonable care may lead to an unfavourable outcome, eventually causing harm to the patient.
HISTORY OF MEDICAL NEGLIGENCE & JURISPRUDENCE
In the Wisconsin Law Review of 1992, a professor at Touro Law Center, Theodore Silver, argued about how “negligence” and “malpractice” have existed since the nineteenth century, their roots being tied to concepts of “trespass and assumpsit.” Professor Silver states as follows:
“The words ‘negligence’ and ‘malpractice’ were strangers to fourteenth century common law. Yet through action on the case,” mediaeval physicians were held answerable for professional misfeasance, and it is almost inescapable that the rules through which their liability attached grew from the same sociopolitical impulses on which the concept of negligence as we know it now rests.”
Taking into account that the primary focus of historical jurisprudence, we are to understand how and when laws had begun to develop surrounding the topics of malpractice and negligence. The origins of medical science, and its development would centre around countries like Mesopotamia and Babylon (2400 B.C.) and this included the making of provisions and proper legislations. For example, in the Holy Bible, it stated that a doctor would be punished with the amputation of his wrists provided he injured the eyes of a patient, leading to the loss of his or her eyesight. Similarly, the Babylonian Code had mentioned the severe punishments that a doctor would face had he caused injury to a patient whilst in surgery, leading to loss of something or the ultimate demise of his patient.
Moreover, the Hippocratic Oath as put forth by Hippocrates, who was also known to be the father of western medicine, is an oath that most doctors follow, or repeat whilst on their journey to become a doctor. It means to avoid harming anybody, especially your patients, as their lives are in your hands.
Between the 18th and 20th century, claims and complaints of medical malpractice had begun to stir in the legal sphere – especially in the mid to late 20th century, where room for speculation was indeed left in order for patients and the public to ponder over much more complex and intricate procedures and treatments, making it all the more easier for malpractice to take place.
To give an example for simple understanding, In the case of Juggankhan v. State of Madhya Pradesh (1964), the homoeopathy practitioner, Juggankhan upon giving his patient a diagnosis, prescribed an ayurvedic supplement that turned out to be poisonous, eventually leading to the patient’s death. While the practitioner was found guilty for his lack of reasonable care, the family of the deceased could not claim compensation for any damages that had to be incurred by them due to the doctor’s negligence. This is because laws related to the practice of medicine were only developing in the country and there hadn’t been any sight of such laws prior to its independence, except for the Drugs and Cosmetics Act of 1940.
A LEGAL POINT OF VIEW
It’s safe to say that while India’s growth in the standpoint of medical practitioners and malpractice is rather slow paced, there do exist certain laws that help deal with consequences of such actions committed by doctors around the country. Notwithstanding, however, it is still not enough. To highlight a few laws, it’s important to categorise them: criminal liability; blacklisting and; compensation in terms of funds.
In terms of criminal liability, Section 104 of the Bharatiya Nyaya Sanhita governs the topic of medical negligence, as follows:
“Whoever causes death of any person by doing any rash or negligent act amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
As it has been mentioned earlier, medical negligence and malpractice have not been given its terms in the Indian Penal Code, or in any existing code, statute or in the Constitution of India. While this is the case, it has been implied that medical negligence can come under certain sections of existing legislations, anything that would lead to an individual incurring damages in place of treatment. Similarly, under Section 123 of the Bharatiya Nyaya Sanhita, speaks of an act that may endanger an individual’s life, or, a group of people, purely due to the negligence of any one party. It reads as follows:
“Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two thousand five hundred rupees, or with both.”
Moreover, in 2002, so as to keep a check on and prevent or control any problems of misconduct by medical practitioners, the Indian Medical Council Regulations were introduced. The State Medical Councils along with the IMC have been given special authority to take disciplinary action against any medical practitioner, if they had indulged in criminal misconduct or an act of negligence, eventually leading to injury. A medical professional may be subject to forced actions which might involve suspending them from practising medicine or permanently removing their name from the medical register (blacklisting). It’s crucial to remember that disciplinary actions are determined by the particulars of each case, while professional misconduct is a more general word that may include medical negligence.
Compensation is a very common consequence in many aspects of tort law, most especially those cases that involve misconduct by a medical practitioner. Healthcare professionals if found guilty of such acts must pay a sum of money to the victim who has suffered damages due to the negligence of their doctor. Under the Legal Services Authority Act of 1987, many cases of medical negligence are handled by lok adalats who attempt to act as a mediation party so as to attempt to bring the parties under common grounds to come up with a solution or settlement for compensation. When it comes to cases of monetary liability, most of them enter civil courts because negligence, in most cases, is a civil wrong committed by an individual.
Many times victims find themselves in a situation where medical professionals are let off the hook due to lacking evidence or bias – based on statistics of cases being handled in comparison to the number being filed per year.
WHY ARE CASES STILL ON THE RISE?
During the COVID-19 pandemic, India had faced major controversy due to the claims of medical negligence in the healthcare industry, as more than 4 million people had died of coronavirus – only because of the lack of resources. In 2021, two doctors were found guilty under S.304 of the Indian Penal Code – now S.104 of Bharatiya Nyaya Sanhita – for the death of a female patient who was under their care. In court, it was proved that the injection used on her was wrong, ultimately leading to her demise.
This is just one aspect of this topic. To further add on, it is not only evident that many of the current issues being faced by the Indian health care system are not new, but have been made worse due to the sudden upsurge of the COVID-19 pandemic. Increased backlogs have surely resulted in outcomes that are now being deemed as unavoidable, mostly because it isn’t just one factor that has led to the rise of misconduct as orchestrated by doctors. While certain provisions exist, especially with the enactment of the BNS, which has raised the term of imprisonment from 2 to 5 years for cases of malpractice and negligence, these laws cannot be seen as fixed, or fit, especially in the realm of justice, because what has been lost, has indeed been lost.
CONCLUSION AND SUGGESTIONS
The burden of proof always lies on the plaintiff, complainant or prosecution, especially when it comes to cases of negligence in India. In this burden of proof, the patient must rely on their evidence to help conclude the fact that there was an instance where negligence had taken place, and how it took place – a demonstration. The reason behind any damages or injuries suffered by patients are mostly only understood by doctors, as the patient may only describe discomfort of sorts as they aren’t aware of medical terms unless they are informed.
In a country like India, the need to improve the standard of care is very much a present factor. Though India may only be developing, it holds the world’s largest population as of 2024, inhabiting around 1.4 billion people in the region. Keeping this in mind, the main suggestion that would be made would be about improving healthcare facilities and negligence laws with regards to this profession.
While there is an execution of such legislations in the current criminal legislations in India, it is safe to say that it isn’t enough to provide protection to those who may be at potential risk in the hands of medical practitioners who participate in malpractice. Holding programmes with regards to patient awareness, similar to how everyone must be educated about their rights as consumers – and last, but not the least, the need for transparency in order for doctors to take accountability with their actions.
REFERENCES
Chandi Prasad Khamari, A Study on Medical Negligence in India: Retrospective and Prospective, 3 (3) IJLSI Page 184 – 191 (2021)
Tiwari, Daya S. “Medical Negligence In India: A Critical Study.” International Journal of Health Sciences, no. I, 19 May. 2022, pp. 10765-10773
J Nepal Med Assoc 2011;51(181):49-52