Role of Consumer Courts on Medical Negligence in India

Definition: The commission of an act that the prudent person would not have done or the omission of the duty that the prudent person would have fulfilled resulting in injury or harm to another person. In particular in a malpractice suit, a professional person is negligent if harm to a client results from a act or such failure to act, but it must be proved by other prudent members of the same profession who would ordinarily have acted differently under same circumstances

Elements of a Medical Malpractice case:

The burden of proving these elements is on the plaintiff in a malpractice law suit. More important is that the plaintiff must show some actual compensated injury that is a result of the alleged negligent care.

Caution may also be vigorously litigated issue because the physician may allege that the injuries were caused by physical factors and related to the alleged negligent treatment.

There is a limited time during which a medical lawsuit can be filed which varies per jurisdiction & type of malpractice.

Not only doctors but also other medical professionals are liable under negligence act.

Not all injuries caused to the patient are liable under negligence act. Section 304A - IPC deals with negligence and reads as - Causing death of any person by doing any rash or negligent act not accounting to culpable homicide shall be punished with imprisonment of either deception for a term which may extend to two years or with fine or both.

India has adopted the principle laid down in BOLAM case which held that a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in relevant specialty.

The BOLITHO TEST is another test that says that the court should not accept a defense argument at being reasonable, respectable or responsible without first assessing whether such opinion is susceptible to logical analysis.

Defence of a doctor against charges of Negligence:

A doctor will be considered negligent in the following circumstances

Duty of care

Breach of standard of care or failure to exercise such duty of care (dereliction)

Injury or damage and reasonable foreseability of damage

Proximate cause between the breach and the injury

That he had no duty to the patient at the time of incidence or damage.

That he discharged his duties in accordance with the prevailing standard of medical practice. That the damage was result of a third person who interfered in the treatment without his knowledge or consent. That the patient did not follow his advice properly (contributory negligence). That the damage complained of is an expected outcome for the particular type of disease the patient suffered from. That the complaint should not be entertained because it has already been tried once in court of law.

That the damage was the result of taking some unavoidable risk which was taken in good faith in the interest of the patient with his or his guardians consent.

That the patient persistently insisted on the specific line of treatment which has caused the damage in spite of doctors warning about the risk involved in treatment. If the doctors professional performance falls below the standards of a reasonably competent medical practitioner. If there is an overt evidence of negligence in diagnosis, treatment procedure etc. Evidence of failure in undertaking all reasonable precautions. Evidence of any other form of negligence in providing care and treatment.

Types of Negligence

-Criminal
-Civil
-Ethical Malpractice

Dr. N. B. Chandra Kala