Advocate Neha Chopra
“In my view, our health care system has failed when a doctor fails to treat a disease that is treatable.”
The doctor is known to be a specialist in the field, so the patient must be treated by the doctor, and while the doctor performs his duties, he wants the doctor to be careful.
The doctors carry out the necessary inquiries and also seek all details and reports from the patient. Unless there is an emergency, any major operation, invasive examination, or treatment should be done with the patient’s ‘informed consent’. The inability of the doctor and the hospital to meet this duty is seen as a medical-negligence situation.
Essentials to Establish Medical Negligence
A doctor must carefully handle the patient. Medicine is a specialty in which a practitioner must have the expertise and skills required for the function and must demonstrate a fair duty of care when working with the patient. How to state that the doctor has committed negligence:
- Doctors negligence can be established with the help of the doctrine of “res ipso loquitur”, which means things speak for itself. It helps to assess the duty of the doctor and it must be well known that the neglect found out could be a breach in due care which the doctor must have been able to uphold.[1]
- It is well known that the notion of res ipso loquitur should be applied in situations of gross medical negligence.[2]
Cases of Medical Negligence
- Patients are not provided with the necessary records, such as reports, prescription and discharge summary
- Where no proceeding is carried out in accordance with the existing laws of medical science
- Any tool left in body
- Any incorrect portion extracted from the body;
- Homeopathic doctors administering allopathic treatment
- Any hospital authority has refused to make oxygen cylinders available
- Damage caused by negligence
Causes of Malpractice in India
- Private hospitals, with revenue as their main goal, use a scheme of rewards and disincentives to force experts to overpay unethically.
- With tight spots in government-funded medical schools, prospective medical students also choose private medical colleges that charge high fees, which further allow physicians to operate in private hospitals to regain their costly investment in therapeutic preparation.
- Overloading creates discomfort for individual patients and organizations for workers who receive health care coverage from their workplace.
- The Indian Medical Council is inefficient in the regulation of malpractice and corruption in the medical sector. Setup of a standard treatment protocol can help to monitor malpractice.
Prevention of Medical Negligence
- Strengthen the patient’s relationship with the doctor.
- Postgraduate and graduate ethical instruction in their rehabilitation training.
- Protection of doctors and hospitals under the Consumer Protection Act (Rule 4 of the Consumer Protection Act, 1986).
- Required video records, in addition to archiving and exchanging records with patients or their members, will make medical the professionals accountable etc.
Compensation for Medical Negligence
Medical neglect is on the increase every day and there is no approach to cope with it. The case for restitution is based on the notion that a person who has done wrong must pay compensation for damages to a person who has been wronged if a legal error is made.
When doctors decide not to operate and the patient dies afterwards, the national commission is responsible for the matter of compensation whether it must be awarded or not. In “Narasimha Reddy and Ors. Vs. Rohini Hospital and Another” The national commission specified that if a patient cannot be treated on the grounds of a specific condition, the practitioner would not be found guilty of neglect if the proper course of procedure is practiced and good consideration is taken while the operation is carried out. As a result, the amendment motion requested by the petitioner was denied.[3] .
The award of ex-gratia compensation against doctors and hospitals is not proper. In the decision of the Supreme Court in the state of Punjab vs. Shiv Ram and Ors. The Supreme Court held that there should be no harm to medical people and hospitals unless they are found to be negligent.
Medical Negligence in the era of COVID-19
In the era of Covid-19, when everyone is locked within their homes, it is the doctors who have taken care of and are supplying people with the right treatment and medicines. As a result of the outbreak of the virus, medical activities have increased in the region, which is the root cause of an increase in medical negligence cases.
Another big reason for the increase in cases of medical neglect is the handling of Covide-19. As there is no proper care plan for the care of COVID-19 patients and bodies, there is uncertainty in the treatment process. At times, when treating the patient to the best of his capacity, the doctor can commit an error, which may be blamed as an instance of suspected medical negligence.
When a doctor refuses a patient with a ventilator or any other medical device that is indispensable for the patient’s survival, he/she explicitly leads to “Criminal Medical Negligence.” Apart from this, several doctors avoided reporting to duty in fear that they will get infected with the virus.
Cases have also been recorded where physicians or hospital personnel have purposely declined to admit patients who are even in critical condition, which have contributed to many cases of medical negligence, and FIRs against certain doctors for the same reason.
As an end result of those unapt incidents, many doctors were suspended, and many doctors got warnings from the Indian Medical Association. Both of those incidents, amid the coronavirus and the lockdown, have brought about in addition petitions through the sufferers inside the Supreme Court towards the docs. The panel, which was headed by judicial member N.P. Kaushik, while discussing to an information from the Directorate-General for Health Services (DGHS) which had taken a strong exception to the hospital’s behaviour, claimed that it was “gross negligence” done by the hospital, as the 42-year-old patient could not be transferred to ICU or placed on a ventilator due to lack of bed availability.
Conclusion
“Health is real wealth and never money or pieces of gold and silver”
Many physicians, including the experts, often ignore the minor details that need to be taken into account when at work that may lead to injury to patients that should have been prevented, or sometimes to the death of patients.
A medical training requires a certain degree of expertise and technical experience. So, when the doctors act, there is an obligation to take the appropriate care. The doctors are therefore bound to behave cautiously. When there is a lack of confidence that people have in their physicians, medical negligence occurs. Doctors should not follow ‘due and humane care,’ which has also resulted in the general population being hurt and hurt.
It is imperative to remember that medical error is not synonymous with medical negligence, which signifies abuse of the constructive duty of care on the part of healthcare professionals. A whole range of innocent errors and honest judgmental errors, often caused by circumstances outside the control of the healthcare provider, irrespective of the treatment and expertise of the provider.
It is not said that doctors are careless or careless, but many practitioners often fail or neglect their duty to the patient while performing a position that requires an amazing amount of patience and consideration.
This form of professional negligence needs to be more cantered than contained in any other regulation or law. A separate and special legislature shall be formed to regulate malpractice.
It is high time that the laws governing medical negligence was revised first to suit patients. Patients should also be made aware, through a sound education the channel, of their defence against medical malpractice by civil society.
All the authorities concerned, whether they are the hospital, the government, the medical board, or any other institution working to develop healthcare services, should work together and take action to ensure:
- Standard of healthcare
- Appropriate medical treatment
- Accessibility of basic health care;
Strict recommendations on the conduct of doctors against their patients should be introduced by the various national medical councils and the Indian medical association. It is stated that most physicians in government hospitals hold private appointments at very high rates, even without going to their hospitals on a daily basis.
In the meantime, by practising in private and in violation of human rights, the government may lay down separate rules and regulations for the tight monitoring of such practises by medical practitioners, because government doctors are supposed to service the public at a reasonable cost, or even free of charge. Health professionals must therefore take due care during diagnosis and, at the right time, prescribe the proper prescription.
Those principles should be taken into account when evaluating leading medical negligence cases in India when a verdict is pronounced in cases of medical negligence.
Unreasonable and needless apprehension should not be exploited by medical practitioners, and there should be no concern on the part of the medical fraternity that they should do their utmost in those situations where they are expected to do so, that in those exceptional circumstances where they need to make their decision free of apprehension and need discretion. So, it can be of interest to society.
In recent times, Indian society has seen an increasing consciousness of patients ‘ rights. This is evident from the recent rise in lawsuits relating to the medical profession or the establishment of liability and reimbursement for the distress caused by medical negligence or breach of confidentiality as an outcome of a doctor-patient relationship.
Reference:-
[1] Dr. spring Kanthimathi Nathan v. Murlidhar Eknath Masane 2002 (2) CPR 138
[2] Spring Meadows Hospital v. Harjot Ahluwalia, A.I.R. 1998 S.C. 1801
[3] Narasimha Reddy and Ors. Vs. Rohini Hospital and Another (2006) CPJ144 (NC),
