Medical Negligence and its Cases

Medical Negligence and its Cases


Before going into the details of medical negligence, we have to understand the concept of negligence. So to begin with, lets know what is negligence.

Negligence, as per the law of Torts, is a breach of legal duty to take care resulting in damage to the person claiming it. In other words, negligence is an act of omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.

The three basic elements of negligence are:(1) a legal duty to exercise due care; 2) Breach of the duty 3) Consequently Damage

Now let us discuss what Medical Negligence or medical Malpractice is. When an act of negligence is committed by a medical professional, it is medical negligence. Medical negligence is said to be committed by a doctor or any the relating staff members, if a patient is not treated with the proper amount of care, resulting in an injury or death of the patient.

The Medical profession is one of the noblest professions in the world. Some people give the doctors the honour of God as they save the lives of people. As such they are required to possess a particular level of learning, knowledge, expertise and skill and are to maintain a reasonable degree of "care and caution", while performing their duty. But recently, after the advent of Consumer Protection Act, 1986, a decline in the standard of the medical profession has been observed due to the increasing number of litigations against doctors for being negligent.

The doctor- patient relationship is one of the most unique and privileged relation based on mutual trust and faith. But presently there is a great decline in this relationship which might be due to communication gap between them, commercialization of health services, raising expectations from doctors or increased consumer awareness. Though to err is human nature, but mistakes of medical professional which may result in death of a person or cause permanent impairment can be particularly costly and cannot be overlooked. The law does not aim to punish doctors for all their mistakes, but only to those which are committed out of negligence. Mistakes occur but which occurs from carelessness and negligence cannot be let off. The landmark case Indian Medical Association Vs. V.P.Shantha brought the medical professionals within the ambit of “service” as defined in the Consumer Protection Act, 1986.



Definition of Service under the Consumer Protection Act, 1986

"Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.



Can Hospital be held liable for the negligence of a doctor?

A hospital may be vicariously liable for the negligence of doctors who are independent contractors. To hold a hospital vicariously liable for the negligence or wrongful acts of an independent contractor physician, a plaintiff must show that (1) the hospital held itself out to the public as providing medical services; (2) the plaintiff looked to the hospital rather than to the individual physician to perform those services; and (3) the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee.

The jurisprudential concept of negligence differs in civil and criminal law. Negligence which is neither gross nor of a high degree may provide a ground for action in civil law but cannot form the basis for prosecution in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.



Civil Liability for Medical malpractice

Doctors in India may be held liable for their services individually or vicariously unless they come within the exceptions specified in the case of Indian Medical Association vs V P Shantha . Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus free treatment at a non-government hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986.

Certain conditions must be satisfied before liability can be considered. 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. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion. In some situations the complainant can invoke the principle of res ispa loquitur or “the thing speaks for itself” .

Definition of Deficiency as per Consumer Protection Act,1986

"Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

In --Kalyani Dutta v. Tirath Ram hosp., decided 3-3-08, the Delhi State Consumer Commission held as follows:
" However, the definition of deficiency provided by Sec. 2(1)(g) of the Consumer Protection Act, 1986 is so wide that it also takes in its fold the administrative deficiencies of the hospital. For instance, not providing blood to a patient who could die if blood transfusion is delayed for some time or not providing oxygen cylinder for want of which the patient is likely to suffer, some time fatal, or admitting the patient in the Nursing Home or hospital knowing it well that the doctors who are specialized and skilled for treating the patient are not available for some reason or the other. Sometimes, sanitary conditions of the hospital are so bad that it contributes to the worsening condition of the patient. Sometimes, the wherewithal and paraphernalia of the hospital who have very high reputation and claims themselves to be a five star or seven star hospital are not adequate. Similarly any negligence in not attending to the patients in ICU who are ordinarily not allowed any attendant amounts to negligence. Utmost care and round the clock attendance is required for the patients in ICU. Nomenclature ICU itself suggests that core should be of intensive nature. Any shortcoming, imperfection or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. In such like cases we have taken a view that the hospital alone can be held guilty for deficiency in service in not taking proper care of the patient and once a patient is admitted in the in the hospital/ICU it becomes their first and foremost duty to provide each and every help to the patient depending upon the nature of disease and give proper attendance for preventing any fall from the bed as has happened in the instant case or any other eventuality causing any physical damage to the patient etc. Recently we have come across and decided few cases of patients having fallen from the bed in ICU suffering fractures particularly old and heart patients and even resulting in death. However, in this case the OP had taken the plea that patient was suffering from such disease that developed psychosis and broke the fence of the barrier attached to the bed and had a fall. This itself shows that there was no person to attend to the patient and that too in the ICU and this amounts to administrative deficiency”.


Criminal Liability for Medical Malpractice


On August 05,2005 a Three Judge Bench of Supreme Court of India of Chief Justice R.C.Lahoti, Justice G.P.Mathur and Justice P.K.Balasubramanyam in the case of Jacob Mathew v. State of Punjab and another - 2005 SCCL.COM 456. Criminal Appeal No. 144-145 of 2004 by order quashed prosecution of a medical professional under Section 304-A / 34 IPC and disposed of all the interlocutory applications that doctors should not be held criminally responsible unless there is a prima-facie evidence before the Court in the form of a credible opinion from another competent doctor, preferably a Government doctor in the same field of medicine supporting the charges of rash and negligent act.


Section 304A 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.


Section 34 Acts done by several persons in futherance of common intention-- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.


Section 336. Act endangering life or personal safety of others
Whoever does any act so rashly or negligently as to endanger human life or the personal safety others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred and fifty rupees, or with both.


Section337 Causing hurt by act endangering life or personal safety of others-- Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Section 338. Causing grievous hurt by act endangering life or personal safety of others-- Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both. Of wrongful restraint and wrongful confinement


Thus a doctor cannot be held criminally responsible for a patient’s death unless it is shown that she/ he was negligent or incompetent, with such disregard for the life and safety of his patient that it amounted to a crime against the State. Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal liability.
Section 80- Accident in doing a lawful Act
Nothing is an offence which 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.
Section 88. Act not intended to cause death, done by consent in good faith for person's benefit
Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm.

It has been observed by the Court in many cases that allegations of rashness or negligence ar raised against doctors by persons without adequate medical knowledge, to seek the benefit of compensation. This results in serious embarrassment and harassment to doctors and they have to suffer a loss of reputation often irreversible. The tendency to initiate such cases has therefore to be curbed.


Doctors accused of rashness or negligence may not be arrested just because a he has been chargeg for it. This may be done only if it is necessary for further investigation, or for the purpose of collecting evidence, or if there is a fear of abscondance. The Supreme Court has never stated till now, that doctors can never be prosecuted for medical negligence. It has only emphasised the need for care and caution in prosecuting doctors in the interests of society. A certain amount of immunity is also allowed to them considering the noble service rendered by them and in view of the reports that complainants often use criminal cases to harass medical professionals and to extract unjust compensation.



Cases on Medical Negligence/Malpractice



1) Bolam v Friern Hospital Management Committee[1957] 1 WLR 583 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. doctors): the "Bolam test". Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent"




2) Indian Medical Association v V.P. Shantha 1995 (3) CPR 412: AIR 1996 SC 550: 1995 (3) CPJI: 1995 (6) SCC 651: JT 1995 (8) SC (Supreme Court decided on 13.11.1995)

As a result of this judgment, medical profession has been brought under the Section 2(1) (o) of CPA, 1986 and also, it has included the following categories of doctors/hospitals under this Section:

a. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.

b. Private hospitals charging all patients

c. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals.

d. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee

It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to all patients.

As a result of this judgment, virtually all private and government hospitals and the doctors employed by them and the independent medical / dental practitioners except primary health centers, birth control measures, anti malaria drive and other such welfare activities can be sued under the CPA( Consumer Protection Act).


3) SC awards Rs 1 crore as compensation


The Supreme Court in a recent judgment awarded a massive compensation of Rs.1 crore to a software engineer who suffered permanent disability due to medical negligence at a government-owned hospital in Andhra Pradesh.

A bench of Justices B N Agrawal, G S Singhwi and H S Bedi enhanced the compensation to Rs one crore from Rs 15 lakh which was awarded by the Andhra Pradesh High Court to Prashant S Bhanaka, the software engineer.

The victim suffered permanent disability in the form of paralysis and other complications, rendering him incapable of all normal chores after undergoing a surgery in Nizams Institute of Medical Sciences.


4) In Juggankhan v. The State of Madhya Pradesh (1965) 1

SCR 14, the accused, a registered Homoeopath, administered 24 dropsof stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had not studied the effect of such substances being administered to a human being. The poisonous contents of the leaf of dhatura, were not satisfactorily established by the prosecution. This Court exonerated the accused of the charge under Section 302 IPC. However, on a finding that stramonium and dhatura leaves are poisonous and in no system of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm, the act of the accused who prescribed poisonous material without studying their probable effect was held to be a rash and negligent act.


5) In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC 332, a doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in

homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct amounted to negligence per se actionable in civil law.


6) In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634, the Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which

led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'.


7) M/s Spring Meadows Hospital and Anr. v. Harjol through K.S. Ahluwalia and Anr. (1998) 4 SCC 39,is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence


8) In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC 182, also Bolam's test has been approved. This case too refers to liability for compensation under civil law for failure of sterilisation operation performed by a surgeon.


9) Anuradha Saha Wrongful Death Case

On Friday, August 7, 2009, a historic judgment on “medical negligence” was passed by the Supreme Court (SC) . The Apex Court has held 4 doctors (including three senior “eminent” doctors) and AMRI/Apollo Hospital in Kolkata guilty for causing death of NRI Dr. Kunal Saha's wife Anuradha Saha,an US-based child psychologist.

This case involves a compensation of Rs. 77.7 crore (plus interest), highest in Indian medico-legal history. The SC has remanded the case back to the National Consumers Forum (NCDRC) to calculate the quantum of compensation that must be paid by these doctors and hospital. Furthermore, in a rare move, the Apex Court has directly imposed an additional fine of Rs. 5 lakh against the hospital plus Rs. 1 lakh against the main culprit doctor (Dr. Sukumar Mukherjee) as penalty for their misconduct which eventually caused death of Anuradha.

There are several important aspects in this judgment by the SC which will have far-reaching consequences on the future practice of medicine in India.


10) SUBH LATA v. CHRISTIAN MEDICAL COLLEGE (Punjab SCDRC O.C. No. 14 of 1994 decided on 15.6.1994; 1994 (2) CPR 691; 1995 (1) CPJ 365; 1995 CCJ 512


The complainant alleged that her husband died due to the complications arising after kidney biopsy. The State Commission held that the complainant had suppressed the crucial facts in her complaint. Besides serious life threatening diseases, the deceased was already suffering from tuberculosis and staphylococcus aureus septicaemia (a serious infection of the blood by bacteria). These are very serious diseases with a very high mortality rate especially when the heart, lung and brain get infected. Hence, the complainant had not come with clean hands and thus disentitled herself to relief under this jurisdiction of the C.P. Act. Complaint dismissed with Rs. 1,500/- as costs


11) SHIVAJI GENDEO CHAVAN v. CHIEF DIRECTOR, WANLESS HOSPITAL & Anr. (Maharashtra SCDRC Complaint No.451 of1993 3.12.1994 (3) CPJ 43)

The complainant’s 18-year-old son was suffering from chronic renal failure and was advised renal transplantation. He was admitted in the hospital and dialysis was done for which a venous catheter was introduced in the right thigh and kept in situ (same position of the body) as he would require frequent dialysis. But due to lack of proper care like frequent dressing and medical attention, this site developed pus formation leading to A.V. Fistula, which resulted in gangrene of the right leg. In order to save the life of the patient, amputation of the leg was necessary. The patient died after 20 days. The opposite did not appear in the State Commission. The case was decided in favour of the complainant on the basis of the affidavits filed by the complainant and another experienced doctor who testified in favour of the complainant. A compensation of Rs. 2,00,000/- with Rs. 1,000/- as costs to be paid by the opposite party within 30 days from the receipt of this letter, failing which the amount shall carry interest at the rate of 18% per annum till realization.

12) LAWRENCE v. APOLLO HOSPITALS (Tamilnadu SCDRC O.P. No. 8/94 Decided on 05.08.1998

The complainant was admitted in a private hospital for pain in the neck on the right shoulder. Investigations reveled that he was a diabetic and had right hydronephrosis with obstruction at right uretrovesical junction. The complainant underwent surgery by retroperitoneal approach. The affected portion of the ureter was removed and uretric reimplantation was done. During the postoperative period, the complainant developed high fever and further investigations showed that a stapler pin was seen in the gastrointestinal tract. The complainant got discharged against medical advice. The allegation was that the pin was left there during the operation. The surgeon stated that the surgical staplers are V or U shaped and used in clusters in surgeries involving large intestine. The stapler pin seen in the x-ray is not a stapler pin. It resembles the stapler pins used un food pockets. Evidently, this stapler pin should have been swallowed. The State Commission held that there is no negligence or deficiency of service on the part of the hospital and dismissed the complaint without costs.



References

1) Ratanlal and Dhirajlal's Law of TORTS

2) Consumer Protection Act, 1986

3) Indian Penal Code,

4) All India Reporters

5) Consumer Protection Reporter

6) AIR (All India Reporter)

7) http://teesarakhambalib.blogspot.com/2009/05/criminal-medical-negligence-jacob.html

8) http://www.medindia.net






























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Comments 6 comments

Dr Neeraj Nagpal 4 years ago

Excellent article. Though needs some updating. Irony of medical profession has however not beeen brought out in the sense there is no limit on quantum of compensation which can be awarded. Is 1.7 cr maximum so far awarded the limit? Is 17 cr acceptable as limit or is 170 cr acceptable as limit to courts and society. Even a patient seen free of cost by a Doctor would be entitled to such compensations. Why then would a doctor risk all he has earned over the years. Should he retire as soon as he has earned enough to secure his life needs. A doctor in his 50s is at peak of his professional competence. Can society afford to loose doctors who are so difficult to train at the peak of their competence.


ashok 4 years ago

A disabled person has to obtain an ID only from the Govt.Hospitals. The medical field has laid down certain procedures for evaluating the percentage of deformity for the lower and upper limbs of the person, However, some doctors, do not go by the procedure and casually give the percentage of deformity.

Is this not a deficiency in service.

Where to approach for clarifications.


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conradofontanilla 4 years ago from Philippines

Enlightening. Good, India has a medical malpractice law. The Philippines has none, only ethics.

I am disturbed by the provision that a doctor is not liable if the service is rendered free. That would mean that a service is tailored to a fee. I think that professionalism does not tie any kind of service to a fee. That is whether the service will be paid or not the doctor should render a service to the fullest. If a doctor does not expect to be paid because the patient is poor he may not exert effort to save the life of the same person if his life is at stake.


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drdspervez 4 years ago from Pakistan

A very nice and informative hub and I up graded you for your efforts.

DR.DURRESHAHWAR PERVEZ


GP CHOUHAN 3 years ago

I, request to all of you that can any gentleman would like to help me to meet my Late wife 's medical negligence case made by government hospital


John Daniells 23 months ago

Excellent article Sunita. May I share more information on similar articles with your audience by pointing to www.medical-negligence-lawyers.co.uk Hope they will find something useful.

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