Medical Negligence and Legal Remedies

INTRODUCTION

Medical Negligence is a concept under Tort Law as well as a blend of Criminal Laws, but in a country like India, wherein the Tort Laws are not recognized as a whole codified law, unlike the UK & USA having codified entities or parts of Tort Laws strictly being applicable in their country, however, India has recognized the tort laws concerning the civil wrongs like the Consumer Protection Act, 2019 although not fully but almost related protecting the infringed  rights of the consumers duty and further the criminal laws amended to provide due protection in the cases of negligence, especially the cases of Medical Negligence wherein a medical practitioner or a doctor defies from his inherent duty of saving & protecting their patients and during the due course of time does a negligent act or a careless act while performing their conduct. Thus, this particular write-up will provide proper analysis as to how medical negligence has evolved over time, along with a comparative analysis of criminal law, Tort Laws & other statutory provisions available, along with the legal remedies accessible to provide due protection to the patients.

MEDICAL NEGLIGENCE BACKGROUND & EVOLUTION

The concept of negligence officially began from the duty of care concept in the US wherein the prospectus of negligence was taken care as to analyzing if there was a duty of care owed to the consumer, breach of duty of care & the negligent harm caused to the claimant. Negligence meant that a “careless” attitude towards a consumer, just like the historical case of the 1950s, Donoghue v Stevenson, wherein the bottle manufactured containing the decomposed snail causing harm to the claimant was an inherently negligent act by the company.  In England from the Bolam case setting up a precedent under the English Tort Laws for medical negligence concerning the test of standard medical care known as the Bolam’s Test. From that cases in India, to protect a patient’s right the Consumer Protection Act, 1986 was first enacted with an inclusion of the laws into the Indian Penal Code of India, now Bharatiya Nyaya Sanhita providing the civil remedies and criminal prosecution of the doctors in the medical field. Earlier, the medical negligence cases were only reviewed under the criminal laws but after the enactments of Consumer Protection Laws, it got a “shift” from criminal to civil remedies by adopting the principles laid down in the Bolam’s Test. The prominent case of Kunal Saha v AMRI Hospital is one of the first landmark judgements involving dealing with the death of Anuradha Saha after receiving treatment of rashes and fever due to high dose of Depo Medrol causing the negligent death of the patient. The principle of “Standard Care” was followed as it was laid down in the case of Bolam v Fiern Hospital, while the judgement further impacted the upcoming legislations enacted within India. 

MEDICAL NEGLIGENCE SCOPE IN INDIA: TORT LAW VERSUS CRIMINAL LAW DISCUSSING THE LEGAL REMEDIES

Before understanding the concept of medical negligence, it is essential to comprehend the liability that arises under this concept. It has been stated under section 106 of the Bharatiya Nyaya Sanhita Act, 2023 that if a medical practitioner performs a medical procedure and causes death of any person due to his negligent act not amounting to culpable homicide, shall be punished with imprisonment of a description of two years and shall also be liable to a fine as well provided that compensation is for the benefit of the patient & for this act a medical practitioner includes a registered medical practitioner under the National Medical Commission Act, 2019 as well as the State Medical Register under this act. In a significant English law case of R v Admando wherein the eye operation had failed due to a lack of supply of oxygen, termed to be a “gross negligent act” on the part of an anaesthetist, was overturned termed to be as an essential legislation of the UK law, while the registered practitioner takes an “implied undertaking” to act in a fair manner as to save the life and acquiring a reasonable degree of skill with a competent degree of understanding. The similarity between the Criminal Laws as well as the Civil laws or the Tort laws is that the inherent requisite as to the doctor should decide if he could undertake a case, a duty of care in deciding what treatment to give and how to administer the treatment. If the doctor violates these said norms, then he is liable to pay an ad valorem court fee under the civil suit of tort laws. In the Indian Medical Association v VP Shantha the remedy under the Consumer Protection Act is protected as a “consumer” and it has to be rewarded through the compensation for loss or injury suffered due to the negligent act.  A Criminal Complaint could be filed under section 106 & 203 of the act while prescribing the  requisite punishment to the practitioner. A Significant legislation laid down in PN De’souza v Emperor the doctor prosecuted for the mismanagement of dispensary & the landmark judgement of the Jacob Mathew v State of Punjab the judgement enunciates a specific decision as to lack of oxygen cylinder does not align with the ability of a doctor not qualified to treat patients & the Montgomery v Lanarkshire Health Board signifying the patient’s autonomy rather than the prudent doctor principle gives a scope of significant liabilities.

MEDICAL NEGLIGENCE: A CONTEMPORARY ANALYSIS

Thus, medical negligence still occurs in the realm of today’s time & significant studies like that of the kannada district wherein a doctor allegedly left a bandage inside a women’s abdomen after which she felt discomfort, fever & pain in her abdomen, A case in Bhiwandi wherein a knee surgery procured permanent disability causing negligence & cases like P.N. Gupta v. Rajinder Singh Dogra & Shiv Kumar vs National Medical Commission & Ors tell us about how the protection of the consumers is inculcated duly through the ad valorem court fee compensation & how the court of laws work throughout the swift justice in the society, working for the protection of the people. As it has been stated Justice delayed is justice denied, Hence, the laws of our country provide inherent norms to adhere to the justice mechanism, enunciating accessibility & accountability, prosecuting those who do not practice their profession honestly & fairly.

Closing Credits

Author: TAARINI BHARDWAJ

Affiliation: Vivekananda School of Law and Legal Studies (VSLLS), Vivekananda Institute of Professional Studies (VIPS), New Delhi.

"The views expressed are personal. This article is intended for educational purposes and public discourse. Feedback and constructive criticism are welcome!"