Medical negligence has emerged as one of the major issues in the nation recently. Even the medical profession, which is considered to be one of the noblest one, is not at all immune to negligence which many a time leads to the unfortunate death of the patient or complete/partial impairment or any other misery which has adverse effects on the patient’s wellbeing. The changing doctor-patient relationship and commercialization of modern medical practice have affected the practice of medicine. On the one hand, there can be unfavorable results of treatment and on the other hand, the patient suspects negligence as a cause of their suffering. There is an increasing trend of medical litigation by unsatisfied patients.
Complaints alleging medical negligence
Medical negligence can be defined as ‘any improper or unskilled treatment of any patient by any medical professional’. This takes place due to negligence in taking care of patient by a nurse, physician, surgeon, or any other medical professional. Medical negligence often leads to medical malpractices where the victims suffer from ill effects from the treatment.
The criminal process once initiated subjects in the medical professionals which led to serious embarrassment and sometimes harassment. Statutory rules or executive instructions incorporating certain guidelines are to be framed and issued by the Government or State Government in consultation with the Medical Council of India. A private complaint may not be entertained unless the complainant produces prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. Despite the serious consequences of medical malpractice, it is rarely tried as any criminal offense. Any legal action against doctors, nurses, and hospital staff in cases of medical malpractice is usually considered as a civil personal injury case and not a criminal one.
In the case of Jacob Mathew (Dr.) vs. State of Punjab and Anr.III where a cancer patient in an advanced stage died due to nonavailability of an oxygen cylinder in the room, the Supreme Court considered three weighty issues: first, negligence in the context of the medical profession necessarily calls for treatment with a difference; second, the difference between occupational negligence and medical negligence has to be properly understood; and third, the standard to be applied to hold a medical professional as negligent has to be carefully considered. The apex court further held that there is no case that the accused doctor was not a qualified doctor to treat the patient was made and therefore the accused appellant cannot be prosecuted under Section 304A of IPC for the nonavailability of an oxygen cylinder though he may be liable under civil law.
In a recent case, the Kerala High Court recently dismissed an appeal filed by a woman who had accused a doctor and a nurse of medical negligence during her delivery, which resulted in the infant’s death. The court observed that unless the complainant has produced prima facie evidence in the form of an opinion, given by any other expert, a private complaint alleging medical negligence may not be entertained. The complaint alleged offence U/S 304IPC against the accused.
An increase in the number of medical negligence cases in today’s world calls for the importance of expert opinion in such cases. Mostly, the liability of any medical professional arises when the patient suffers any injury because of the substandard conduct of the doctor, which was far behind the contended standard of care. Therefore, the patient should at all instances establish that there exists a duty that the doctor has to follow, and then the next step is to prove the breach of duty.
In the case, Jacob Mathew vs State Of Punjab & Anr, the Supreme Court stated that any investigating officer should, before the proceeding against the medical professional accused of rash/negligent act/omission, obtain an independent as well as competent medical opinion preferably from any doctor in a government service qualified in the same branch of medical practice who could normally be expected to give an impartial as well as an unbiased opinion applying Bolam's test to the facts collected in that investigation. Any doctor who has been accused of rashness or negligence, may not be arrested in such a routine manner only because a charge has been leveled against him. Until and unless his arrest is considered as necessary for furthering the investigation or for collecting evidence or unless the investigation officer thinks that the accused may abscond. It is to be considered that where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
Conclusion
Medical negligence should not be taken up as a tool to harass the medical professionals because, in many instances, there are cases that do not prove to be an actual case of negligence as and when a case of serious crime is involved. Until and unless any expert opinion is ascertained, no conviction can be upheld as well as the trial against the medical practitioner in a criminal case, cannot be held. In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.
References
1. https://indiankanoon.org/doc/871062/