In good olden days medical profession was considered as a noble profession. This is because the medical professionals were considered as equivalent to or next to god and their relation with patient is guided by compassion and altruism. The sole aim of medical profession was to cure and alleviate the sufferings of patients. Therefore, compared to many other profession, medical profession receives a high respect from the society and also certain immunities under law. It is believed that, being service oriented and without any profit motive whatever a medical professionals will perform during treatment is for the welfare of patients. Therefore, in olden times common law tradition provided an immunity to medical professionals and patients were not permitted to file a complaint against a medical professional in connection with his service.
The changes in professional values and; developments in the medical science and technology; and the societal values have significantly damaged the value of doctor patient relationship. Here the term medical professional indicates not only doctors but also includes nursing staffs, paramedical staffs, pharmacist, and hospital administration as the case may be. There is change in the fiduciary relationship (i.e. based on trust) between medical professionals and patients. Whenever anything goes wrong while treatment on account of the act of doctors or other medical professional’s patients starts thinking about a legal recourse against it. So also there is an increase in malpractices among some of the medical professionals. All these has given rise to the development of law relating to medical negligence.
Negligence arises when a person fails to take adequate care and thereby causes an injury to another. It is the duty of every individual to take adequate care while doing an act, therefore any failure to take such care and thereby causes an injury to another, it is his responsibility to compensate the loss suffered by such inured person. Here unlike criminal law, the bad intention to cause injury is not necessary, therefore, even if the person does not intended to cause a harm or injury through his action, still he will be liable to indemnify the loss. In the words of Baron Alderson, ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do’.
Medical negligence arises when there is a failure on the part of medical professional to take adequate care and as a result it causes a harm or injury to the patient. It is to be noted here that, every treatment does not lead to success and every treatment dos not save the life of patient. Any failure in curing the disease or saving the life will not be treated as negligence on the part of medical professionals. In order to qualify an act of medical professional as medical negligence, it is essential to establish that: a) there was a legal duty on the part of alleged medical professional; b) this duty is towards the patient in dispute; c) there is a breach of that legal duty; and d) as a result of such breach of duty, the patient suffered an injury or the death occurred.
The idea of imposing liability for medical negligence is not a new concept though it has developed in the last few centuries. One can find certain rules and principles dealing to medical negligence in the 4000 years old Code of Hammurabi developed by Babylon King Hammurabi. Similar instances can be found in ancient Hindu Vedic texts such as Charaka Samhita; Manusmriti; Arthashastra; Yajnavlkya’s Smriti; etc. Even other popular religious traditions such as in Islamic law, Christianity, Judaism, etc. also contains certain references which imposes an obligation to doctors to do no harm to the patients. Though very little legal obligations where there at that time in connection with medical negligence, one striking feature is that, the liability was criminal in nature rather than a civil obligation. In modern times, the legal framework dealing with medical negligence can be broadly classified in to three: a) Civil Law Framework; b) Criminal Law Framework; and c) Professional Misconduct.
Civil Law Frameworks
The civil law framework in India dealing with medical negligence includes actions under law of torts (i.e. Tort of medical negligence); actions under Consumer Protection Act (i.e. Deficiency in medical service); and actions under Indian Contract law (i.e. Breach of contract).
Tort of Medical Negligence Tort of medical negligence is a tort in which a medical professional (defendant) fails to take adequate care while providing his service to a patient (plaintiff) and which results injury to such patient. In other words an act or omission which causes a breach of duty to take care by a medical professional and thereby causes injury to a patient is termed as tort of medical negligence. In order to consider an act as tort of medical negligence the following ingredients has to be established; a) A legal duty to exercise due care; b) Duty must be owed by the Medical Professional; c) Breach of Duty; and d) Breach resulted in injury to the Patient.
In the case of Dr. L. B Joshi (1969), the Hon’ble Supreme Court of India has explained that, a medical professional has the following duties towards a patient such as: Duty of care in deciding whether to undertake the case; Duty of care in deciding what treatment to give; and Duty of care in the administration of that treatment. Therefore breach of any one of or all of these duties can be considered as a case of tort of medical negligence.
The moot problem in medical negligence cases is the determination of violation or breach of duty on the part of a medical professional. The popular Bolam test (1957) is considered as an effective principle for the determination of breach of duty on the part of medical professionals. According to this test, if a medical professional had adopted a practice that is considered as ‘proper’ by a reasonable body of medical professionals who are skilled in that particular field, the medical professional in question will not be held negligent only because it resulted in injury to the patient. In other words if the medical professional in question has exercised reasonable skill and care like any other medical professional of his field in the given circumstance, then whatever injury or harm caused to the patient is not to be considered as because of negligence on the part of such professional. In 1997, Bolitho test has developed for determining the breach of duty by medical professionals, in India the judiciary still favours the Bolam test.
The burden of proof for establishing breach of duty is always lies on the shoulder of patients. The principle of res ipsa loquitor (things speaks for itself) is an exception to this general rule. In cases where res ipsa loquitor the patient/ plaintiff will be excused from establishing the breach of duty on the part medical professionals. This principle applies in cases where the injury results only if there is a negligence, in such cases Court will presume there is a breach of duty on part of concerned medical professionals. Cases like forgetting mops, surgical instruments, scissors etc. in the stomach of patient during surgery are the best examples for the application of this principle.
It is to be noted that there are cases in which doctors or other medical professionals may be negligent in providing their service, but their negligence may not be the sole reason for the loss suffered by the patient. The patient may also contribute for the loss suffered by him. In such circumstances medical professionals will be liable only to the extent of loss occurred due to his negligence by the application of the principle of contributory negligence. The judiciary will determine the percentage of loss caused by the act of negligence of medical professional and will determine the liability accordingly. When there is a failure on the part of patient to give the doctor accurate medical history; failure to cooperate with his doctor in carrying out all reasonable and proper instruction; refusal to take the suggested treatment; leaving the hospital against the doctors advise; and failure to seek further medical assistance if symptoms persist, etc. are some of the common instances for the application of contributory negligence. Deficiency in Medical Service
Medical negligence can be considered as a deficiency in medical service under the Consumer Protection Act, 1986. Deficiency in relation to medical service means any fault, imperfection shortcoming or inadequacy in the quality, nature and manner of performance of which is required to be maintained by or under any law for time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to medical service. Therefore all the medical negligence cases can be brought under the definition of deficiency in medical service and patient can claim remedy under Consumer Protection Act. It is to be noted here both medical negligence and deficiency in service are used interchangeably for indicating the same thing, yet there is a difference between these two terminologies. To constitute a deficiency in medical service, a simple breach of duty with or without injury is sufficient, if the breach results in damage, then such deficiency would amount to tort of medical negligence also.
The application of Consumer Protection Act in cases of medical negligence had a long disputed history. First of all the question was whether a patient can be treated as a consumer under the Consumer Protection Act. This question was finally settled affirmatively by National Consumer Commission in the case of Vasantha P. Nair (1992). The next dispute was with respect to inclusion of medical service under the purview of the Act. The Consumer Protection Act, 1986 provides a wide definition for the term ‘service’, however it failed to mention the medical service. This issue was finally affirmatively settled by Hon’ble Supreme Court in the case of V. P. Shantha (1996). One important thing to be noted here that the new Consumer Protection Act, 2019, also failed to provide a specific mentioning about medical service under the definition of ‘service’ in the Act. Since the new Act follows the philosophy and the provisions related to service and deficiency of 1986 Act, the above mentioned judicial settlements hopefully will apply under the new Act.
Breach of Contract
A medical professional when accepts a patient to provide treatment, there arise a contractual relationship between such professional and the patient. Therefore, when a medical negligence occurs, the patient can consider it as a breach of contract and claim remedies for breach of contract under the Indian Contract Act, 1872. However, considering the long delay and other ancillary expenses patients are generally reluctant to prefer a case under this head. Considering the need for urgent disposal and inexpensive nature, patients are more in favour of a complaint under CPA in cases of medical negligence. Sometimes patients will prefer both tort of medical negligence and deficiency in service actions together. However, after the introduction CPA, 2019, in the absence of a clause talking about application of other laws in relation to consumer disputes, how far filing of actions under both tort and CPA for the same negligence is doubtful. In all these civil law frameworks, in cases where there is a medical negligence, the medical professional is liable to compensate the loss suffered by the patient. While determining the compensation amount the concerned court will take into account both physical injury and mental injury suffered by the patient, wherein the court will count both economic as well as non-economic loss incurred by the patient. In the case of Dr. Kunal Saha (2013), Supreme Court has granted 5.96 crore rupees as compensation, which is the highest ever compensation awarded in a medical negligence case in India
Criminal Law Framework
In India, the criminal law framework dealing with negligent acts of medical professionals are covered under Indian Penal Code, 1860. It provides four specific offences which are directly dealing with the act of negligence on the part of medical professionals. They are Section 336, 337, 338 and Section 304A. As per Section 336 whenever a medical professional does any act so rashly or negligently so as to endanger life of patient or the personal safety of patients it will amount to an offence. Such medical professional shall be punished with imprisonment up to 3 months or a fine up to 200 rupees or with both.
When the medical professional causes hurt to any patient by doing any act so rashly or negligently as to endanger life of patient or the personal safety of patients, it will amount to an offence under Section 337 and he shall be punished with imprisonment up to 6 months or a fine up to rupees 500 or with both. If the negligent act of a medical professional causes grievous hurt to the patient it would be considered as an offence under Section 338 of IPC and he shall be punished with imprisonment up to 2 years or a fine up to rupees 1000 or with both. In case patient dies due to the negligent act of medical professional it would be an offence under Section 304A and he shall be punished with imprisonment up to 2 years or a fine or with both.
It is to be noted here that, for the conviction of a medical professional for an alleged criminal offence, the standard should be a proof of recklessness and deliberate wrong doing. Therefore, to convict, a medical professional, the prosecution has to come out with a case of high degree of negligence on the part of such professional. Therefore a mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Indian judiciary has clearly laid in number of cases that while imposing criminal negligence and its liability to a medical professional, there should be a proof of high degree of negligence or recklessness. The Court has also laid down several guidelines to deal with criminal medical negligence cases against medical professionals in cases like Dr. Suresh Guptha (2004) and Jacob Mathew (2005).
The commission of negligence by medical professionals would amounts to a professional misconduct on the part of medical professionals as per the Medical Code of Ethics, 2002 adopted by Medical Council of India. If the negligence is successfully established on part of a doctor, then the disciplinary committee can either issue a warning, suspension from the registered list or dismiss form the said list.
Liability of Hospitals and State Governments
Generally a question arises in most of the medical negligence cases is that the liability of hospitals for the negligence committed by their doctors and other medical staffs. In number of cases like Ms Neha Kumari (2003); Savita Garg (2004); etc., the Indian judiciary has categorically established that the Hospitals are vicariously liable for the negligence of their doctors and other staffs. Also in cases like V. Krishnakumar (2015); Savitri Devi (2019); etc., the State Governments were also held vicariously responsible for the medical negligence’s occurred in Government hospitals.
A review of all these shows that, in India, for the protection of rights of patients in cases of medical negligence, there is a well-established legal framework. By understanding the pros and corns of these frameworks the patient can take action against medical negligence cases. It is to be noted here that, though there is a wellestablished legal framework for dealing with medical negligence cases, it is not a Damocles sword hanging on medical professionals. Medical professionals are free to continue with their solemn duty of curing the diseases and alleviating the suffering of patients. However, they are supposed to take adequate and reasonable care while providing their service. Compared to many other developed nations health care system in India is at its top most position, this is due to our learned medical professionals also. So one can reasonably expect the cases of medical negligence will decrease tremendously in future.
Dr. Aneesh Pillai, School of Legal Studies Cochin University of Science and Technology.
The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.
For the latest news Download The Daily Guardian App.
Centre increases dearness allowance for govt workers by 4%
The Centre on Wednesday increased the dearness allowance for retirees and government workers by four percent. Anurag Thakur , an union minister, revealed that as a result, the dearness allowance is now up to 38 percent.
The revised dearness allowance will be given to government employees and pensioners in arrears starting on July 1. The Centre typically announces the DA hikes in March and September before implementing them on January 1 and July 1. Dearness allowance is essentially the portion of central government employees’ monthly salaries that is paid to offset the rise in living expenses brought on by compensation.
The dearness allowance had been raised to 34 percent by the Center in March of this year. The new DA went into effect on January 1 of this year. The Odisha government announced a 3 percent increase in daily allowance (DA) for its employees and pensioners on September 19.
Chief Minister Naveen Patnaik approved the proposal for increasing DA from 31 per cent to 34 per cent, effective from January 1, 2022. Four lakh employees and 3.5 lakh pensioners will be benefitted, according to an official release.
On PFI ban, Lalu Yadav says ‘RSS should be banned as well’
The national president of the Rashtriya Janta Dal (RJD) and a former chief minister of Bihar, Lalu Prasad Yadav, responded to the central government’s move to outlaw the Popular Front of India (PFI) by saying that the Rashtriya Swayamsevak Sangh (RSS) should also be banned.
“PFI is being investigated. All organisations like PFI, including RSS, should be banned and an investigation should be done,” said Prasad after filing his nomination papers for the post of national president.
Prasad claimed that Muslim organisations were being targeted by the government.
First of all, ban the RSS. It is a worse organisation than that. If you get anything, then take action,” he said.
He attacked the Modi government, saying the situation in the country has become worse due to unemployment and inflation.
“Efforts are being made to spread bigotry. Such a government has to be overthrown,” he said.
The JD (U), a partner of the RJD alliance, also questioned the PFI ban.
Party leader Ghulam Rasool Balyawi said, “Today in the country, only one party is giving the certificate of loyalty and branding people as traitors.”
“Does anybody know the source of funding for RSS?” he asked.
Media and Entertainment sector should grow to more than 100 billion dollars by year 2030: Apurva Chandra
The Union Secretary for Information and Broadcasting Apurva Chandra has exhorted the media and entertainment industry to set a target of growing the industry to more than 100 billion dollars by the year 2030. “India will be a 10 trillion dollar economy in the next 10 years, we should target that the media and entertainment sector should grow to more than 100 billion dollars by 2030. The Ministry of Information and Broadcasting will do whatever it takes to support the M&E sector and help it grow.” The Secretary was addressing the inaugural session of FICCI Frames Fast Track 2022 in Mumbai today, September 27, 2022.
The Secretary announced that Invest India is going to be leveraged in order to bring in higher foreign investment into India in the film sector. “The Ministry has merged various film units under one; NFDC based in Mumbai is going to be the hub of the cinematic arm of the government. With this, we want to revamp the Film Facilitation Office. We are going to hand this over to Invest India, the main investment arm created by the government under the leadership of Prime Minister Narendra Modi, to attract industry to India. More than 100 billion dollars of FDI is coming to India this year. We want to leverage Invest India to bring in foreign investment, we will reach out to foreign filmmakers to come to India.”
The Secretary informed that the government will work with states to facilitate and promote film shooting in India. “Recently at Cannes Film Fesival, we announced Incentive Scheme for Audio-Visual Co-production and Incentive Scheme for Shooting of Foreign Films in India. With incentives given by states too, it becomes a viable and attractive package for filmmakers.”
The Secretary announced that the Government of India will work with the states and formulate a Model Theatre Policy. “Over the past 5-6 years, the number of theatres has been on a decline. We need to reverse this trend. We will assign the Film Facilitation Office to work with Invest India to come up with a single-window portal for opening theatres, so that more and more theatres can come up and the public gets more avenues to watch the magic of films in theatres. We will also work with the states to create a Model Theatre Policy, so that the states can adopt and work on the same.”
Please read concluding on thedailyguardian.com
Conference on eco-alternatives to banned single use plastics and air quality management
A Conference of startups and innovators working on eco-alternatives to banned single use plastics and air quality management was inaugurated on 27th September 2022 at Chennai Trade Centre, Chennai, by Ashwini Kumar Choubey, Minister of State for Environment, Forest and Climate Change and Consumer Affairs, Government of India in the august presence of Siva V Meyyanathan, Minister of Environment, Climate Change, Youth Welfare and Sports Development, Government of Tamil Nadu. The Startup Conference has been jointly organized by the Ministry of Environment, Forest and Climate Change, Government of India, and Government of Tamil Nadu.
Startups and innovators have been involved in developing solutions for many pressing environmental challenges including in the development of eco-alternatives to banned single use plastics and air quality management.
Ashwini Kumar Choubey, Minister of State for Environment, Forest and Climate Change and Consumer Affairs highlighted that availability of alternatives to banned single use plastic items is extremely important. The Startups and innovators have taken up this challenge and developed eco-alternatives. One Startup has made packaging material from rice stubble. The innovation not only addressed plastic pollution but will also help in reducing the pollution caused by burning of rice stubble. Another startup has developed flexible packaging material from sea weeds. He highlighted that the startups and innovators are not only providing solutions to environmental problems but also assisting in economic development of the country. The Government of India is giving focus on supporting innovators and startups through various schemes of the Government such as Startup India Mission.
Many startups and innovators from across the country working in the area alternatives to banned single use plastic items and air quality management are participating in the Startup Conference. Representatives from concerned central Ministries involved in supporting innovation, startups, and MSMEs and banks who are key in mobilizing finances for startups and manufacturers are participating in the Expo. Representatives from State Governments, State Pollution Control Boards are participating in the Startup Conference.
The Conference of Startups will provide a platform for engagement and exchange views amongst innovators and institutions, Government Departments supporting startup ecosystems in the country and banks, on steps taken for scaling up innovations and supporting startups.
The Conference will have experience sharing sessions of startups working in the field of alternatives to banned single use plastics and startups working in the area of air quality management.
A separate session on role of financial institutions in scaling up startups has also been organized representatives of Startup India Mission, banks and Ministry of Micro, Small and Medium enterprises has also been organized.
The Minister mentioned that the strategy adopted by the Government to tackle unmanaged and littered plastic waste has two pillars to ban single use plastic items which have high littering potential and low utility, and implementation of extended producer responsibility on plastic packaging. Promotion of innovation and startups for elimination of single use plastics will help us address the problem of littered and unmanaged plastic waste in the country.
497 Railway stations made Divyangjan friendly by providing either lifts or escalators
s a part of ‘Sugamya Bharat Abhiyan’, to provide ease of movement for Divyangjans, aged and children on railway platforms, Indian Railways is installing lifts and escalators at railway stations across the country. So far, there are 497 stations where either lifts or escalators have been provided.
Escalators:- As per policy, normally Railways are providing escalators at State Capitals, Cities having population more than 10 Lakh or stations having footfall more than 25000 per day.
So far, 1090 Escalators at 339 stations have been provided upto Aug’2022. Yearwise position of provision of Escalators is as under:-
Lifts:- As per policy, GM/Zonal Railways are empowered to select stations/platforms for provision of Lift considering footfall, constraints of space etc.
So far, 981 Lifts at 400 stations have been provided upto Aug.’2022. Yearwise position of provision of Lifts is as under:-Indian Railways has been consistently trying to improve passenger amenities at various stations. Provision of escalators and Lifts at the railway platforms is a part of this and also a necessity in view of the ever increasing passenger volumes. Such facility would facilitate improvement at exit/entry of passengers and is a further step to improve passenger safety as well.
Prime Minister attends State Funeral of former Prime Minister of Japan Shinzo Abe
Prime Minister Narendra Modi attended the State Funeral of former Prime Minister of Japan Shinzo Abe at the Nippon Budokan, Tokyo. Representatives from over 100 countries, including more than 20 Heads of State / Government participated in the State Funeral.
Prime Minister honoured the memory of former PM Abe, who he considered a dear friend and a great champion of India-Japan partnership.
Following the State Funeral, Prime Minister had a private meeting with Mrs. Akie Abe, spouse of Late PM Abe, at the Akasaka Palace. Prime Minister Modi conveyed his heartfelt condolences to Mrs. Abe. He recalled his fond friendship and the significant contribution made by former PM Abe in taking India-Japan relationship to new heights. Prime Minister also had a brief interaction thereafter with Prime Minister Kishida to reiterate his condolences.
Opinion2 years ago
South Block’s mistakes will now be corrected by Army
Sports2 years ago
When a bodybuilder breaks Shoaib’s record
News2 years ago
PM Modi must take governance back from babus
Spiritually Speaking2 years ago
Spiritual beings having a human experience
Legally Speaking2 years ago
Law relating to grant, rejection and cancellation of bail
News2 years ago
Chinese general ordered attack on Indian troops: US intel report
Royally Speaking2 years ago
The young royal dedicated to the heritage of Jaipur
Sports2 years ago
West Indies avoid follow-on, England increase lead to 219