Medical negligence and the law in India
With the increase in public awareness and litigation in the field of medical negligence in India, several legal decisions have helped frame law in this field . As a medical professional , it is imperative for one to know what the law in India is. Medical negligence can be divided into those that have a civil liability and those that have a criminal liability. To understand this , one must first understand what medical negligence is ...
What is medical negligence
Negligence is breach of a legal duty to care. It means carelessness in a manner in which the law mandates carelessness. A breach of this duty gives a patient a right to initiate action against negligence of a doctor. Here are few legal points to remember -
*When persons offer medical advice and treatment , they they imply that they have the skill and knowledge to take medical decisions. This is called 'implied undertaking'. In the case of state of Haryana Vs. Santra , the Supreme court held that every doctor " has a duty to act with a reasonable degree of care and skill".
* doctors may not be held liable under a few exceptions specified in the case of Indian Medical Association Vs. V P Shanta. Doctors are not liable for their services individually and vicariously if they do not charge fee. Thus free treatment would not be considered a "service "as defined by law.
* An error of judgement constitutes negligence only if a reasonable competent professional with the standard skills that the the person professes to have , and acting with ordinary care , would not have made the same error. In the case of Dr Laxaman Balkrishna Joshi Vs Dr Trimbak Bapu Godbole the Supreme court held that if a doctor has adopted a practice that is considered "proper" by a reasonable body of medical professionals who are skilled in that particular field , he or she would not be held negligent only because something went wrong or the person is not fully cured.
* the person who is accused must have committed an act of omission or commission ; this act must have been in breach of the person's duty ; and this must have caused harm to the injured person. However, at times, no proof of negligence is required except the accident itself , if it can be proved that the occurrence was unexpected and could have only happened due to negligence on the part of the Doctor.
What is criminal negligence
Indian penal code 1860 sections 52, 80 , 81,83,88,90,91,92,304-A and 338 contain the law of medical malpractice in India.
In Poonam Verma Vs Ashwin Patel the Supreme court distinguished between negligence , rashness , and recklessness. A negligent person is one who inadvertently commits an act of omission and violates a positive duty. A person who is rash knows the consequences but foolishly thinks that they will not occur as a result of her/his act. A reckless person knows the consequences but but does not care whether or not they result from her/his act. Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal medical liability.
Sections 88 and 80 of the Indian penal code contain defences for doctors accused of criminal liability. Under section 80 nothing is an offence that is done by accident or misfortune and with out an criminal intention or knowledge in doing of a lawful act with proper care and caution. According to section 88 , a person can not be accused of an offence if she/he performs an act in good faith for the other's benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent. Additionally , the burden of proof lies on complainant when a case is filed.
Difference between civil and criminal medical negligence
In Suresh Gupta's case the Supreme court distinguished between an error of judgement and culpable negligence. Court held that prosecution of doctors without adequate medical opinion pointing to their guilt would do great disservice to the community. A doctor can not be tried for culpable or criminal negligence in all cases of medical mishaps or misfortunes.
A doctor may be liable for civil case for negligence but mere carelessness or want of due attention and skill can not be described as so reckless or grossly negligent as to make her/him criminally liable. The courts held that this distinction was necessary so that the hazards of medical professionals being exposed to civil liability may not unreasonably extend to criminal liability and expose them to the risk of imprisonment alleged criminal negligence.
In the Supreme court , in the case of Jacob Mathews Vs State of Punjab , directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressure in performing their duties . It ruled that until the government framed such guidelines the following guidelines will prevail:-
1. A private complaint of rashness or negligence against a doctor may not be entertained without prima facie evidence in the form of a credible opinion of another competent doctor supporting the charge.
2. In addition , the investigating officer should give an independent opinion , preferably of a government doctor.
3. Finally , a doctor may be arrested only if the investigating officer believes that she/he would not be available for prosecution unless arrested.
