INTRODUCTION

Medical negligence is the failure of a medical practitioner to provide proper care and attention to the patients suffering from any kind of disease. In cases of medical negligence principle of res ipso loquitur can be applied. Res ipso loquitur means the principle that mere occurrence of some types of accident is sufficient to imply negligence.

In Ashish Kumar Mazumdar v. Aishi Ram Batra Charitable Hospital Trust, the plaintiff, an in-door patient in the hospital fell out of the window of the hospital room. Applying the rule of res ipso loquitur, a three judge bench of the Supreme Court held the hospital liable stating it to be a clear case of absence of due care of hospital.

ESSENTIALS OF MEDICAL NEGLIGENCE

The term ‘Medical negligence’ consists of two words – medical and negligence. Negligence is solely the failure to exercise reasonable care. Medical negligence is no different. It is only that, in case of medical negligence, the doctor is the defendant.

In an action for negligence, the following essentials are required:

• The defendant owed a duty of care to the plaintiff.
• The defendant made a breach of that duty.
• The plaintiff suffered damage as a consequence of that breach.

A doctor owes certain duties of care to his patients, they are as follows:

• It is his duty to decide whether he wants to undertake the case or not,
• It is his duty to decide what treatment to give and;
• It is his duty to decide the administration of treatment.

If a doctor fails to perform the aforesaid duties it results in breach of duty and gives a right of action to the patient. A breach of duty is committed by a doctor when he does not perform the degree of care like a reasonable doctor.

TYPES OF MEDICAL NEGLIGENCE

Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required. 

So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.

Some of the common categories of medical negligence are as follows:

1. Wrong diagnosis – When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
2. Delay in diagnosis – A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
3. Error in surgery – Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under surgical error.
4. Unnecessary surgery – Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
5. Errors in the administration of anesthesia – Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient’s condition, history, medications, etc.  To determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
6. Childbirth and labor malpractice – Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc.
7. Long-Term negligent treatment – Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor’s failure to monitor the effects of the treatment properly.

Doctor’s duty of care

When a medical practitioner attends to his patient, he owes him the following duties:

• A duty in deciding whether to undertake the case or not;
• A duty of care in deciding what treatment to give ;  and
• A duty of care in administration of the treatment

A breach of any of the above mentioned duties gives a right of action for negligence to the patient.

Doctor’s duty to attend to a patient

If the specialist does not take care to attend a patient admitted in emergency ward of a hospital and the patient dies, the doctor would be liable to pay compensation.

Doctor Acting in a Callous Manner

In Gian Chand v. Vinod Kumar Sharma, Kumari Neha, a minor child aged 3 years, fell into a bucket of hot water and sustained burn injuries. She was immediately taken to primary health centre, Shillai from where she was shifted to District Hospital, Nahan. There she was admitted to the surgical ward from where she was shifted to Children Medical Ward. Due to her burn injuries she could not be clothed. Besides, she should not have been exposed to vagaries of weather but should have been kept to warmest place available. But the appellant, in charge of ward could not see her as she was a surgical and got angry and shifted her to the veranda outside the ward. Neha contracted cold and died of pneumonia. The H.P High court held appellant not only negligent but callous in her approach.

Negligence in Free Eye Camp/Camps of State

In Pushpaleela v. State of Karnataka, a free eye camp was organized by Lions Club and a social service organization, where 151 persons were operated upon for cataract problem. Most of these patients developed infection and severe pain after surgery. 72 out of them lost sight of one eye and 4 victims lost the sight of both the eyes. According to an enquiry report guidelines of Govt. of India were not followed. And the procedure adopted for sterilization was not up to the mark. There was found to be careless and negligence in performing eye operation.

Lack of preventive measures

In Suraj Mal Chhajer v. State, the petitioner’s daughter Dr. Verma Chhajer, aged 25 years, was a resident doctor in a Govt. Hospital at Jodhpur. While performing her duties she contracted Hepatitis-B, which resulted in her death. The Inquiry Committee found that she might not have contracted the disease, had she been vaccinated earlier against Hepatitis B and adopted other preventative measures such as using disposable syringes, needles, gloves, aprons, etc.

The Rajasthan High Court also directed the State Government to pay an interim compensation of Rs. 5 lakhs to the petitioner.

The High Court also directed the State Govt. to appoint a High Power Committee consisting of at least 5nindependent eminent persons, one of whom should be from medical profession, to enquire into the circumstances leading to death of Dr. Veena Chhajer.   

CONCLUSION

Though the doctors are seen as God and patients believe that they will get better after the treatment and that they would be healed by the treatment provided. But sometimes it so happens that even the doctors makes mistakes which cost a lot to the patients in so many ways. Also, in some instances the mistakes made by them are so dangerous that the patient has to face problems and undergo immense sufferings. The usage of equipment and medical tools in health care sector should be made with due care and caution as it can lead to an injury to the consumer which may further result in the filing of a complaint against the doctors and the other authorities involved. Yet, there is no provision which can make the manufacturers of such unfit equipment liable for the damages.

Another important concern is that the services which are rendered free of charge are excluded from the scope of the Consumer Protection Act, 1986. This creates a problem for patients who suffer damages. People are losing faith in the medical profession due to some serious medical negligence cases which have made them disabled for their remaining lives. Some serious introspection and analysis are required to be done for the Medical profession. It has utterly failed in self-governance. The medical ethics need to be reformed and developed so as to serve with complete righteousness.

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