AUTHOR- MANSI GUGALE
COLLEGE- THAKUR RAMNARAYAN COLLEGE OF LAW, MUMBAI
NEGLIGENCE IN HEALTHCARE SECTOR ::: Doctors for a healthy society or a wealthy society? What is the primary objective, money, or life? Discovering wealth in an unhealthy life? Patients or customers? Doctors or merchants? Lifesavers or money makers?
Patients believe doctors next to God. Doctors are the only human being who can save life as they have earned the title of “lifesavers”. We entrust our health to doctors with the hope of care and protection. What if selfless, skillful, trustworthy, and reassuring doctors become uncharitable, unreliable, unethical, and corrupt doctors?? Even a small mistake by a doctor can lead to life-ending effects on patients!
“No doctor knows everything. That is the reason why it is called PRACTISING MEDICINE”ANONYMOUS
Commercialization in the medical field is a matter of great concern. All doctors, nurses, and other health care providers are supposed to provide a high level of quality and care. Medical professionals are responsible for the health and safety of their patients. Unfortunately, these professionals may fail in this responsibility by providing substandard care which can cause personal injuries and sometimes even death.
TYPES OF NEGLIGENCE IN HEALTHCARE
Misdiagnosis, Delayed Diagnosis, Surgical error, Unintentional laceration or perforation, Wrong-site surgery, Foreign Object left in a patient, Unnecessary surgery, Errors in anesthesia, Negligent anesthesia preparation, Failure to monitor anesthetic performance, Childbirth trauma and labor malpractice, negligence in healthcare and C-sections, Mistreatment of a difficult birth, Complications with induced labor, Negligent long term treatment, Negligence inpatient treatment follow up, Failure to monitor treatment accordingly are the types of Negligence in the healthcare sector which results in severe health issues and even death of the patient.
PATIENTS SAFETY THREAT- SYRINGE REUSE
A very serious threat to the health that every patient has to be aware of is the reuse of needles or syringes, and the misuse of medical vials. Every medical professional should always adhere to safe injection practices under standard precautions to prevent transmission of diseases from needles, syringes, or multi-dose vials. Disease like HEPATITIS C AND B, HIV can be transmitted from the reuse of such medical appliances.
HOW EDUCATION SYSTEM PLAYS A ROLE IN NEGLIGENCE OF HEALTHCARE SECTOR
Reservation in the medical field is the worst practice that needs to be changed in India. The deserved candidate is not practicing in the government hospitals and lack of knowledge of the medical professional results in the loss of the patients. The rate of dummy candidates, getting a degree by giving a lot of money or a purchased Degree, dishonesty in the examinations are the reasons for the increasing number of unskilled doctors in India.
ROLE OF SUPERSTITIONS IN NEGLIGENCE OF HEALTHCARE SECTOR
Here is factual data that totally explains how superstitions play a huge role in the negligence of the healthcare sector. 838,473 people die due to non-utilization of health care services. Around 60% of patients in India believed in luck and superstitions related to illness. Beliefs and ideas found their place in people’s communication and affecting health behaviors. Even nowadays, people in some areas don’t visit the doctors and treat the patients according to their ideas and belief system. This kind of negligence affecting the healthcare sector which causing a greater impact on the health of the patients.
LIABILITY OF HOSPITALS
The term Negligence is a breach of a legal duty of care. In the past few years, there is an increase of 400 percent in the number of medical negligence cases in India. The legal definition and remedy for medical negligence are still unknown to many people. As per medical negligence law in India, doctors and the hospital can be imprisoned, fined, or lost their license as well. When the hospital itself is deficient in providing a safe and suitable environment for the patient as promised, it can be held liable directly.
A hospital can be held liable directly if it is charging for the facilities which are not provided. If a hospital is misleading patients by false claims of certain facilities, advertisements, notices, or signboards, it can be held liable. The hospital is liable if the patient suffers from injuries or dies due to improper maintenance of hospitals.
MEDICAL NEGLIGENCE- VICARIOUS LIABILITY OF HOSPITALS
There are numerous grounds where hospitals can be held vicariously liable. Vicarious liability is a liability of an employer for the negligent actions of its employees. “Respondent superior” is the principle where vicarious liability is based on. It means to let the master answer. As per the common law principle in Latin phrase, “qui facit per aliumfacit per se”, the one who acts through another, acts in his/her own interest. Several high court judgments have held hospitals liable vicariously for the damages by the negligent acts of their staff caused to the patients.
One judgment of Kerala high court in Joseph @pappachan v. Dr. George Moonjerly supports that persons who run the hospital are in law under the same duty as the humblest doctor. Whenever hospitals accept a patient for treatment, they must use reasonable skill and care to ease him of his ailment. The hospital authorities can’t do it by themselves as they don’t have the skills to perform surgery but they know which kind of surgery they can perform on basis of their skills.
CIVIL AND CRIMINAL LAW AND MEDICAL NEGLIGENCE
Law gives patients the right to initiate legal action against negligence. Implied undertaking on the part of medical professionals i.e. medical professionals has the skill to decide whether to take the case and administer treatment or not. Supreme court states “every doctor has a duty to act with a reasonable degree of care and skill”, in the case, The State of Haryana v. Smt Santra. In certain cases, no proof is required to prove medical negligence. The complainant can invoke the principle of res ispa loquitor or the thing speaks for itself.
In the case of ‘Dr. Janak Kantimathi Nathan v. Murlidhar Eknath Masane’, res ispa loquitor, the principle was applied. This principle can be applied only when there is proof that the occurrence is unexpected. The tort of medical negligence and actions under ‘Indian Contract Law’ i.e. breach of contract are the civil laws that deal with the matter of medical negligence. To prove the committed act is a tort of medical negligence, the following things need to establish:
- The legal duty to exercise due care
- Duty must be owed by medical negligence
- Breach of duty
- The breach resulted in the injury of the patient
In 1957, the Bolam test was developed. It was based on the direction to the jury of a high court judge, McNair J, in Bolam v Friern Hospital Management Committee. It causes greater difficulty for the courts in medical negligence cases in India than in claims against, say, a lawyer or an accountant, because of the technical issues involved. In 1997, Bolitho Test was developed for determining the breach of duty of medical professionals. The judiciary still favors the Bolitho Test in India.
Professional misconduct-Medical Council of India adopted the Medical Code of Ethics, 2002. Medical professional’s commission of negligence would amend to professional misconduct on the part of medical professionals.
CIVIL LAW AND MEDICAL NEGLIGENCE -BREACH OF CONTRACT
A contractual relationship between medical professionals and patient arises when a medical professional accepts a patient to provide treatment. The patient can file a suit under the Indian Contract Act, 1872 for breach of contract.
CIVIL LAW AND MEDICAL NEGLIGENCE- CONSUMER PROTECTION ACT
Litigation in civil courts takes a lot of time to reach their logical end. Medical services have been brought under the preview of the Consumer Protection Act, 1986.
Many associations filed a strong protest against the application of the Act to the doctors on the grounds that the relationship between doctor and a patient is not that of a buyer and seller and they reiterated that misconduct and the negligence in the healthcare of medical professionals can be tried and disputes are solved at existing forums like the medical council of India, stated medical councils, and the civil and criminal courts. But their protest and request not accepted. Doctors are not liable if they are providing free treatment. Free treatment is not come under ‘service’ as per section 2 of the consumer protection act, 1986.
CRIMINAL LAW AND MEDICAL NEGLIGENCE
Indian penal code, 1860 provides four specific offenses that are directly dealing with the act of negligence in healthcare on the part of medical professionals. The sections are 336, 337, 338, and 304A. Section 336 gives punishment of imprisonment up to 3 months or a fine of up to 200 rupees or both. An offense committed under section 337 shall be punished with 6 months of imprisonment or a fine of 500 rupees or both.
The offense of serious or grievous hurt or injury to the patient is considered under section 338 and shall be punished with imprisonment up to 1 year or a fine of 1000 rupees or both. If the patient dies due to negligent acts by medical professionals, it would be an offense under section 304A shall be punished with imprisonment up to 2 years or a fine or both.
We never fail when we try to do our duty, but we always fail when we neglect to do it!ROBERT BADEN- POWELL
Many a time, the court finds it difficult to resolve the issues of the complex legal relationship between hospitals, paramedical staff, and doctors, which result in an act of negligence. During the recent times, we can say that medical errors must be the leading cause of death after cancer and heart disease. It means the death of these patients could have prevented. Contractual duties are generally more onerous in nature while tortious duties of professional men are limited to take reasonable care. Under civil law, the law of torts takes over and protects the interest of patients at a point where CPA that is Consumer Protection Act ends, even if a medical professional is providing a free service.
Patients can successfully claim compensation for such an act of negligence. There is a well-established legal framework for the protection of patients in cases of medical negligence. Patients can take action against medical negligence cases. Doctors, nurses, and other medical professionals are supposed to take adequate care while providing service.
Also, we can’t deny that India is at the topmost position in the health care system if we compare it with other nations. This is due to our learned medical professional. We all should be aware of the legal liabilities and can reasonably expect that the cases of medical negligence will decrease in the future.
- STATE OF HARYANA VS. SMT. SANTRA (2000) 5 SCC 182:: AIR 2000 SC 3335
- DR JANAK KANTIMATHI NATHAN VS MURLIDHAR EKNATH MASANE 2002 (2) CPR 138
- TAPAS KUMAR KOLEY: MEDICAL NEGLIGENCE AND THE LAW IN INDIA, (OXFORD UNIVERSITY PRESS, 2010) CONSUMER PROTECTION ACT AND THE MEDICAL PROFESSION, 134-158.
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