Wednesday, November 25, 2020

MEDICAL AND PROFESSIONAL NEGLIGENCE


Professionals are individuals who profess any special skill or work, who are specially trained to  profess in that field and bear the responsibility of professing with due care. Medical negligence is  any misconduct or carelessness on the part of medical professionals say doctors for not providing  proper care, which leads to the breach of their duties and leads to inconsequential damages. It's  natural to mistake. While patients see the doctors as God and believe their illness would be healed  and also the medication will heal them, often even the doctors make errors which may, in many  cases, cost the patients a good deal. Sometimes the mistakes are so severe a patient will suffer  immensely. Being in such a profession where patients are sick, ill, and patient belief his/her doctor  as the Almighty, an implausible amount of care is required. This type of error is termed negligence.  If a restaurant owner is sued for selling low-quality food, then a doctor may be sued for offering  treatment and care of poor quality. Mistakes or incompetence within the Medical Profession can  cause minor injuries or other severe forms of accidents, and sometimes even death may result from  these mistakes. Because no man in this world is ideal, it's clear that an individual who is qualified  and has knowledge of a particular subject can also make mistakes during his practice. To mistake  is natural, but to repeat the same fault is incompetence due to one’s carelessness. The underlying  explanation for medical error or medical negligence is that the carelessness of the said doctors or  medical practitioners, which may be seen in various cases where due reck isn't taken during  diagnosis, during surgery, and sometimes during injection, anaesthesia, etc. For example, after a  patient’s operation, he's likely to become infected with several diseases because of some cause that  will include blood loss, fatigue, high dose of medicines. In due course, the doctor is required to  provide standard treatment for such infectious diseases with premedication. When a doctor refuses  to try and do so when a patient suffers from any infection, which in extreme cases can cause serious  damage or maybe death, the doctor is alleged to have committed medical negligence or  malpractice. 


Jacob Mathew v. State of Punjab [(2005) 6 SCC 1] 


In this case, it was held that a practitioner joining a particular profession shall be believed to have  knowledge of that discipline, and it shall be guaranteed, deduced by him, that a fair amount of  caution shall be taken during professing his discipline. The person may be held responsible for  negligence if he didn’t have the essential professional qualifications, or he failed to take a proper  amount of care to profess the occupation. If a specialist fails to go through his/her training, a 

specialist shall take reasonable care and possess expertise as compared to any practitioner within  the same field. Certainly, the abilities of various professionals vary from one another although they  work in the similar profession, but what’s needed is for a specialist to posses knowledge of latest  technologies, innovations, and betterments in his field so as to provide critical care to his  profession’s consumers. The failure to go with amounts to the legal responsibility for professional  negligence. 


Jagdish Ram &ors v. State of Himachal Pradesh(2008 ACJ 433) 


In this case, the SC held that professionals such as lawyers, doctors, architects, and others are  included in the category of those persons who are particularly skilled and trained in their respective  fields in the negligence law. Any task or job requiring specialist ability is included in a profession.  Every professional need a degree of knowledge of that particular branch of profession which he  wants to join as his career and it is necessary that he should do his work with reasonable care. He  assures his clients that he’ll do his job with proper care and caution but he doesn’t offer any  guarantee of the result. 

Essentials 

Doctor’s duty to attend the patient with due care 

Medicine is such a discipline that a practitioner is expected to have the required experience and  expertise for the task and a medical practitioner is compelled to perform a fair duty of care when  dealing with the patient. The quality of treatment is defined by the essence of the profession. The  level of an average professional in that field will decide a surgeon or anaesthetist whereas in case  a higher skill is needed. In the case of Sishir Rajan Saha V. The state of Tripura (AIR 2002  Gau 102), the physician didn’t pay enough attention to the patients in a government hospital as a  consequence of that the patient died, the physician held responsible for paying compensation. It  was held that If a doctor refuses to treat a patient admitted in an emergency condition under his  supervision, and the patient dies or is a victim of complications that the doctor could have  prevented with due care, the doctor could be held responsible for medical negligence. However,  the doctor’s fault can not be used now and then, and he can't be held liable because of something  went wrong. A very high degree of negligence was needed to show to fix the liability. A physician  or medical practitioner owes them some duties while treating their patients, like Duty of care the  patient, Deciding what treatment should give and Duty of care in providing the treatment.


Doctors Acting in a Negligent Manner 


It is well-known that the concept of the res ipso loquitur is going to be implemented in cases of  gross medical negligence. It's claimed that the res ipso loquitur principle is largely an evidentiary  principle and the principle is supposed to help the claimant, res ipso loquitur means things  represent/speak for themselves, when preferring the doctor’s responsibility, it must be known that  the error detected should be a violation with reasonable care that a normal practitioner should  have held. within the case of Jagdish Ram v. State of Himachal Pradesh (2008 ACJ 433), it was  held that the chart giving details of the number of anaesthesia allergies of the patient should be  listed before any operation so that an anaesthetist can supply the patient with required amounts  of anaesthesia. Within the latter example, the doctor did not do so, and also the patient died from  an overdose of anaesthesia, and therefore the doctor was held liable for the identical. within the  case of Gian Chand v. Vinod Kumar Sharma (AIR 2008 HP 97), it was held that despite the  necessity for urgent care to be provided to the patient leading to harm to the health of the patient,  the patient’s doctor or hospital administrator was held liable for negligence. 

Liability -

Civil Liability: 

Civil liability typically requires lawsuits within the type of insurance for damages sustained.  Whether there's some violation of the duty of care during the procedure or when the patient is  under the supervision of the doctor or the health professional, they're held liable for any  wrongdoing. they're liable within the variety of insurance for the damages. Often senior doctors  also are held vicariously liable for the wrongs the junior doctors have done. If anyone may be a  hospital employee, the hospital is liable if that employee damages a patient by behaving  incompetently. within the case of M Ramesh Reddy v. State of Andhra Pradesh (2003 (1) CLD  81), the hospital authorities were found to be negligent, inter alia, in not keeping the toilet clean,  which resulted within the patient falling into the toilet resulting in her death. The hospital was  charged a compensation of 1 Lac rupees. 

Criminal Liability: 

There may be an instance when the patient died after the treatment, and a criminal case under  section 304A of the Indian Penal Code is filed for allegedly causing death by the reckless or  careless act. According to S. 304A of the IPC, whoever causes the death of any person by an act  of rash or negligence not amounting to homicide shall be punished with imprisonment for up to  two years or with a fine or both. Hospitals may be charged with negligence in transmitting  infection, like HIV, HBsAg, etc., if any patient develops such infection in the course of hospital  treatment and it is found that the same has occurred due to failure on the part of the hospital, then  the hospital may be held responsible for lack of fair duty to care. 

Other Liability: 

In the case of Dr Suresh Gupta v. NCT of Delhi (AIR 2004 SC 4091), The SC held that the legal  situation was very simple and well settled that if a patient died due to medical negligence, the  practitioner was responsible for paying the compensation in civil law. Just when the negligence  has been so serious, and his conduct has become as reckless as endangering the patient’s life does  it enforce criminal law for the crime under section 304A of the Indian Penal Code 1860 

Conclusion 

As the number of cases in India and also the world at large, it's becoming a significant concern  that the remedies should either be issued under the tort law and therefore the Consumer Protection  Act of 1986 or that the time has come to enact legislation to remedy patients who have suffered  seriously because of negligence on the side of doctors or medical authorities. Here are patients  who have suffered from neglect but who haven't lodged a complaint either due to their own  ignorance or due to lengthy proceedings etc. Not only this, but many doctors also give the patients  medicines that are too strong. It can affect both their brains and their bodies. Typically speaking,  these treatment deficiencies rarely get to the limelight. This need to be handled with caution. A  doctor should be liable for the assorted compositions of the drugs that he prescribes. it's now time  for a platform to be formed to produce these patients with the remedies easily. Yet that wouldn’t  be done by itself. it's important to enforce it in its full swing by making the ways simpler and  promoting it so people are conscious of their rights. 

Sirachi Gupta, Faculty of Law, University of Lucknow


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