- Saumya James, B.SC. L.L.B, Gujarat National Law University
Introduction
With the increasing awareness of public rights, there has been a significant rise in cases against hospitals and medical staff in the last decade. For the most part during this pandemic, newspapers and social media were jammed with the reports of medical crisis confronted by the overwhelmed healthcare system of our country. Once considered to be a rare medical error, medical negligence has now become among the many common harms that infringe a person’s right to health under Article 21 which guarantees the right to life as interpreted by the Supreme Court in Bandhua Mukti Morcha v Union of India & Ors.
In one such incident Rekha Devi, a resident of Bihar went to AIIMS Delhi complaining of a severe stomach ache, and instead of being diagnosed for the same the doctor performed dialysis (a treatment for kidney failure) on her. The surgeon then made an arteriovenous or AV fistula, which is a vascular technique used to get entry into the bloodstream for haemodialysis treatment in sufferers of kidney diseases hereby implying that not only was she misdiagnosed but also went under the knife. It was later discovered that Rekha had been suffering from severe stomach ache due to a complication caused by an abdominal surgery undergone by her in her home town of Saharsa.
The doctor, who performed the haemodialysis treatment, was also an assistant professor in the department of surgery at AIIMS. He then attempted to cowl up the mistake by changing the documents. Rekha, however, stated that she did not suffer from any kidney ailments. A jury was formed in AIIMS under the chairpersonship of the Dean after an investigation into the matter was requested. This is a standard case of medical negligence.
When can a doctor be sued?
Doctor-patient relationships are considered to be fiduciary. The reliance that a patient places on a health practitioner is cardinal and therefore the health practitioner owes a certain duty in rendering care to the patient. The doctor can be held liable under medical negligence when this duty is breached and as a result an injury is caused to the patient, further resulting in damages.
Even though there is an absence of a complete codification of the act of medical negligence, jurisprudence in this area has evolved to remedy the wrong done to the patient. It has been held by the Apex Court that in the cases of clinical negligence, the Bolam Test is to be applied. The famous case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 laid down the principle rule for evaluating the germane standard of reasonable care in the cases of negligence concerning skilled professionals (e.g., doctors). The Bolam Test simply states that “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”.
Liability for Medical Negligence in India
In Civil Liability, medical negligence falls under the umbrella of the tort of negligence and has the same components as that of the latter. According to Indian jurisprudence, professional medical negligence includes the following criteria - :
1. Duty to treat: A doctor-patient relationship must be created.
2. Dereliction of duty: A physician must adhere to the prudent physician's norm.
3. Cause-and-effect relationship between the damage and the procedure.
4. The patient's damages.
As defined by Winfield, “Negligence as a tort is the breach of the legal duty to take care which results in damage, undesired by the defendant, to the plaintiff”. When taken as a tort the patient is rewarded monetary compensation in the form of damages.
Criminal Liability arises when negligence is of a relatively higher order and thus, it is imposed according to the Indian Penal Code, 1860. While there is no specific provision that deals with medical negligence, a person can be held liable under Section 304A of the code which reads as follows
“Causing death by negligence–Whoever causes the death of any person by doing any rash or negligent act not 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”.
Other general provisions of the IPC such as Section 337 (causing hurt) and Section 338 (causing grievous hurt) are also often deployed in medical negligence cases.
Disciplinary Action can also be imposed on a medical practitioner in the form of penalties for professional misconduct. This is governed by the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
When a medical professional crosses an ethical line
“Occam’s Razor. The simplest explanation is, almost always somebody screwed up.”
-Dr. Greg House in House M.D. (a medical drama series).
Taking an instance from this drama wherein a bull rider at a rodeo is trampled in the episode “Out of the Chute” House deduces that the man has an aortic aneurysm, then confirms it erroneously by cracking the patient’s ribcage and raising his blood pressure-but this is seen as the right thing to do. It’s not the only time House has made a medical error that could have resulted in the patient’s death.
When medical professionals cross an ethical border, they have the same potential to hurt patients as if they had made mistakes during surgery or diagnosis, albeit more quietly. After all, if a patient bleeds out during surgery as a result of the surgeon’s carelessness, the damage is obvious and irrevocable. Examining a specific problem, generally a clinical case, and using values, facts, and reasoning to determine the best course of action is what medical ethics is all about. Medical Ethics differs from morality and it is backed by reason and values striving to make the profession of practising medicine more humane by adhering to a specific code of conduct.
In an autopsy-based study conducted at Lady Hardinge Medical College, trends in medical negligence cases were distinguished. The report states that in India almost 5.2 million incidents are recorded each year, ranging from erroneous prescriptions, wrong doses, wrong patients, wrong surgeries, and wrong times to wrong drugs. The most common causes include medication errors, hospital-acquired infections, and blood clots in the legs as a result of being immobile in the hospital. Every year, almost 52 lakh medical injuries are reported in India, with 98,000 people losing their lives as a result of medical negligence.
Conclusion
In the last decade India has seen a spike in the number of medical negligence cases. Although India has around 1000 Ethical Committees registered with the Central Drugs Standard Control Organisation but the supervision provided under the aegis of these ECs is limited only to clinical research and trials. At the grass-root level, the Medical Council of India has decided to implement the Attitude, Ethics and Communication module in all medical schools across the country but at the administration level, we still need authoritative bodies in medical schools. This is to ensure that our doctors are not only skilfully and scientifically competent but also have a strong foundation in medical ethics.
Additionally in accordance with the relevant facts, figures and observations, it is concluded that we need explicit recognition of the right to health as an integral component to the right to life in our legal framework. It needs to be put on record, which would compel the State to provide better health service as endorsed by the apex court in State of Punjab & Ors v Mohinder Singh Chawla, thereby ameliorating the standard of health care that each person receives.
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