Author – Ganesh Arora
Medical Negligence is the misdeed by a medical practitioner or doctor by not giving sufficient care resulting in the breach of their duties and harming the patients who are their consumers. The four Ds of medical malpractice is the duty, dereliction, damages, and direct cause. Each of them must be proved for malpractice to be found. Medical negligence has caused many deaths as well as negative impacts on the patient’s health. A patient getting treated under any doctor expects him to be careful while doing his duties and positively predicts himself to be cured by his treatment. Under article 21 of the Indian Constitution, the Right to health is a fundamental right and as per the Indian judiciary, its violation would result in the violation of the right to life. In India, medical negligence is punishable under several laws such as torts, IPC, C.P. Act, etc.
- Indian Penal Code (IPC)
Under Section 304A of the IPC, “whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.” Criminal liability can be imposed on the doctor but the death must also be due to negligence or malicious intentions. A doctor can be held liable if the patient dies while administering anesthesia in an operation.
IPC also contains defenses for doctors under Sections 80 and 88. Section 80, ‘nothing is an offense that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.’ According to Section 88,’ Act not intended to cause death, done by consent in good faith for person’s benefit..’
Under Section 2(1)(o) of the Consumer Protection Act, 1986, Deficiency of service means any defect in the quality of performance that is needed to be maintained by or under any law for the time being in force or has been undertaken to be completed by a person in pursuance of a contract or otherwise about any service. The ruling of the Supreme court in Indian Medical Association v. VP Shantha brought the medical profession within the ambit of ‘service’. It gave contractual patients the power to sue doctors in consumer protection courts for compensation if they sustain injuries during treatment.
The complaint can be filed in the District Forum if the value of the goods or services and the compensation claimed is less than 20 lakhs rupees, before the State commission if it doesn’t exceed 1 crore rupees and before the national commission if it exceeds more than 1 crore rupees.
Under the torts law or civil law, this principle is applicable even if doctors deliver free services. In cases where the services given by the doctor do not fall within the definition of ‘services’ as illustrated under the Consumer Protection Act, victims can take recourse to tort law under negligence and claim compensation. Here, the onus is on the patient, and he has to prove that he suffered an injury due to the negligence of the doctor. Under tort law, a doctor can also be held vicariously liable, if his employee negligently causes the death of a patient.
The judgement in the case of Kunal Saha v. AMRI (Advanced Medical Research Institute) which is popularly known as the Anuradha Saha case, is a landmark judgement that expanded the scope of medical negligence in India. The case was filed in 1998 against three doctors of AMRI hospital for medical negligence. The facts of the case are that Mrs. Saha was suffering from a drug allergy. When she went to the hospital, these doctors prescribed her medicine which further worsened her condition and resulted in her death. The Supreme Court gave its verdict in 2013 and compensated the victim with 6.08 crore which is the highest to date.
Some other famous medical negligence cases are V. Krishna Rao v. Nikhil Super Speciality Hospital 2010, Kurban Hussein v. the State of Maharashtra, Achutrao Haribhau khodwa and Ors v. the State of Maharashtra.
A drawback of the Indian laws on medical negligence is the ‘Burden of Proof ’ which is on the plaintiff. Therefore a patient would require strong evidence to claim medical negligence which makes it difficult for a common man or patient to determine the exact harm and relation between the damage and the negligence of the doctor.
It is a moral obligation and also a duty as per directive principles(Article 47 and 48 of the Indian Constitution) of the government and medical authorities to improve healthcare facilities and should work together to provide quality, adequate and basic healthcare.
Author – Ganesh Arora is studying at Amity Law School.