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Medical malpractice

Written by: Shilpa Goel - First year Law Student - Hooghly Mohsin College
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Medical malpractice is an act of negligence committed by a medical provider, a physician in most situations. It is defined as doing something a medical provider of ordinary skill would not have done, or failing to do that which a medical provider of ordinary skill would have done.

An individual may be subject to one of the various forms of medical malpractice whenever he or she seeks the care of a medical provider. Malpractice can be constituted by something as simple as failing to put the rails of a hospital bed in the upright position, to something as complex as improperly performing open heart surgery. A related issue in these cases is whether a patient has provided informed consent to a particular treatment. Only if a patient has been informed of the details, risks, benefits and alternatives to a recommended form of care can he or she rightly be said to have given informed consent.

Fortunately, there are laws that entitle patients to receive complete medical care. If you have been seriously injured due to substandard medical care, our attorneys may be able to obtain compensations on your behalf for the damage caused. To establish a medical malpractice claim, there must be injury and damage to the patient directly resulting from the negligence. A shocking fact about medical malpractice is that it frequently goes undetected or at least overlooked. Different studies have concluded that the percentage of medical negligence that escapes lawsuits may approach ninety (90%)*. In Ohio, as elsewhere, pursuing a medical malpractice case is a tedious, time consuming, and expensive process. Defense attorneys know this and make it as difficult, costly and cumbersome as possible to successfully prosecute a claim. People witness firsthand the conspiracy of silence in the local medical communities. Patients ordinarily receive very little candid, truthful assistance by involved physicians regarding identifying medical negligence when it occurs. For similar reasons, the negligent physicians have a much easier time locating physician experts to support the quality of their care.

Therefore, it takes a tough, experienced, and respected law firm to successfully prosecute negligence cases. At the firm of Wolske & Associates, attorneys possess the requisite level of skill and expertise to successfully win full and fair compensation on behalf of medical malpractice clients.

The last few decades have seen many scientific and technological advances, decreasing mortality, morbidity and overall improvement in quality of life. At the same time there are some negative changes such as decreasing standard of medical attention, decreasing ethical values, commercialization and corporate culture in the managements of patients. These changes have significantly affected the doctor patient relationship which was based on mutual trust. In today's situation this relationship is strained and is bringing doctors under the ambit of Consumer Protection Act. Of the challenges, in all likelihood, none can be so threatening and draining for a doctor, on an emotional, personal and professional level, as being a defendant in a medical malpractice claim. The duties of a doctor when he undertakes the treatment of the patient have been clearly described by the Supreme Court in Lakhsman Joshi v. Trimbak. A person, who holds himself out ready to give medical advice and treatment, impliedly undertakes that he is possessed of skill or knowledge for the purpose, such person when consulted by a patient owes him certain duties. A breach of these duties gives a right of action for negligence to the patient.

In a major ruling on August 5, 2005 the Supreme Court directed law enforcement agencies not to proceed against doctors accused of rash or negligent act or omission without obtaining an independent and competent medical opinion to support the charges. Noting that cases of doctors being subjected to criminal prosecution were on the increase, the Supreme Court held that a private complaint alleging negligence against a doctor, should not be entertained as routine matter unless the complainant produces before the court a credible opinion by another competent doctor supporting the charges.

The Supreme Court judgment in Jacob Mathew vs. State of Punjab is a landmark judgment as the Supreme Court has framed guidelines under which a Doctor could be held criminally liable on account of his professional negligence or deficiency of service. The judgment arose on appeal filed by a doctor of CMC, Chandigarh, who had been booked for the death of a terminally ill cancer patient. According to the complaint made on behalf of the family members of the deceased, Jiwan Lal who was a patient, the hospital could not provide oxygen in time as there was no gas in the cylinder.

On facts, the apex court held that the doctor could not be prosecuted for it. The Supreme Court said that extreme care and caution should be exercised while initiating criminal proceedings against medical practitioners for alleged medical negligence and drew up elaborate safeguards for them, including avoiding arrest unless it was inevitable. Drawing elaborately from established provisions of law and practice, the Bench ruled that this was necessary for, the service which medical profession renders to human being is probably the noblest of all and hence there is a need for protecting doctors from unjust prosecutions. Negligence in the context of medical profession necessarily calls for a treatment with a difference. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of the medical professional, it stated.

The Court, however, made it clear that this did not mean that doctors cannot be prosecuted at all. All that we are doing is to emphasize the need for care and caution in the interest of society... the Court added.

The apex court laid down elaborate guidelines to govern prosecution of doctors. These are:

A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charges of rashness or negligence on the part of the accused doctor. The investigating officer, should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice who can give an impartial and unbiased opinion (applying a prescribed test to the facts collected in the probe).

"Unless arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld. However it was made clear that these would operate temporarily, till statutory rules were framed and issued by the Government in consultation with the Medical Council of India. The three-Judge Bench pointed out that negligence would amount to an offence only if there was a mental intention. And if the negligence was not gross, it would provide a ground for action only for recovery of damages but not any criminal offence. The ruling went on to add that. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10 per cent, rather than taking the risk of making a last-ditch effort towards saving the subject and facing criminal prosecution if the effort fails. Such timidity forced upon a doctor would be a disservice to society..."

In the Court's words, the complexities of the human body and medical science were too easily understood. For a medical accident of failure, the responsibility may be with the medical practitioner and equally it may not. Ideals about the medical practice, according to the Court, may be far different from the realities. The Court agreed with the views of noted men of medicine that the effect of encouraging frivolous cases against doctors will have a distorting effect on doctor-patient relations and will not benefit the patient in the long run. The essence of the Supreme Court judgment is that intention and lack of proper care and caution? are important ingredients before which a criminal action can be launched against a medical doctor under criminal law. In simple terms when a doctor does not treat a patient with the proper amount of quality of care, resulting in serious injury or death, they have committed medical negligence.

The Constitution of India understandably does not provide any special rights to the patient. In fact the patient's rights are basically indirect rights, which arise or flow from the obligations of a physician or health care provider under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 and more importantly other fundamental rights such as the right to know about his condition, or the right to participate in treatment decision-making etc. Nevertheless, the decision-making primarily remains in the hands of doctors and other health care professionals.

The relevant provision for imputing liability to doctors and associated medical professionals is Section 304-A of the Indian Penal Code (IPC), 1860 under which a complaint against a medical practitioner for alleged criminal medical negligence is registered. Section 304-A provides that whoever commits culpable homicide not amounting to murder shall be punished for life or imprisonment for a term up to 10 years and fine as well. Section 337 of the IPC deals with hurt caused by an act endangering life or personal safety of others. Section 338 of the IPC relates to grievous heart by an act endangering life and personal liberty of others. However, it has been made patently clear in a plethora of Supreme Court judgments that the simple lack of care attracts only civil liability and hence any and every kind of negligence may not be enough to hold a medical professional criminally liable. The apex court said that for fixing the criminal liability of the doctor the standard of negligence required to be ascertained is whether it is gross negligence or recklessness. The mere lack of necessary care, attention and skill will not constitute gross negligence or recklessness. The SC judgement in the Jacob Mathew case goes one step ahead by defining what constituted gross negligence by stating that there should be a clear intention backed by strong evidence attributable to the doctor to make him criminally liable.

The significance of the Jacob Mathew judgment lies not just in what it says but what it ultimately translates to. The SC guidelines for a private complaint require for a complaint to be entertained, 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. This part of the judgment has been a cause of concern for various consumer activists across the country who has serious doubts as to the efficacy of having any doctor to come forward and support charges leveled against another from his own fraternity. Mr. J. Pookkat of the Consumer Online Foundation echoes this feeling and suggests Once peers get involved in the picture, they are all equally interested parties and their own biases and sympathies creep in. A mechanism should be put in place involving a medical teacher and not a practicing doctor along with consumer activists. However the judgment realizes that what is being done is actually in the long term interest of patients. Application of Consumer Protection Act to medical profession and the increasing number of litigation, though has protected the patients but at the same time has made the doctors overcautious and apprehensive. The distrust of patients and apprehension of being exploited economically have made things difficult for both patients and doctors. The high cost of inputs, commercial angle to practice of medicine, ever increasing dependence on technology, high-tech equipment, supportive staff, are making health services not only unaffordable but also inaccessible especially for the poor. Therefore, to that extent the Supreme Court judgment is welcome. The Court was seized of this issue when it notes..."Negligence in the context of medical profession necessarily calls for a treatment with a difference...A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of the medical professional," it stated. The Court, however, made it clear that this did not mean that doctors cannot be prosecuted at all. "All that we are doing is to emphasize the need for care and caution in the interest of society..."

Experienced practitioners are known to have refused to treat serious/complicated cases for fear of being accused of negligence. Young men are even deterred from entering the profession because of the risks involved as had been noted in a IMA-CCC seminar held in September 2004.

Therefore, though it is necessary to expose the errant practices being undertaken by doctors, at the same time it is in the interest of the patients to also protect the rights of the doctors and to understand the risks involved while they are dealing with complicated cases.
 

The author can be reached at: ashish_themiracle@legalserviceindia.com / Print This Article

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