Ignorance of the law is no excuse. The rule is Applied everywhere. A doctor in
particular should have the knowledge of law which belongs to the medical
profession. In case of professional liability, the medical profession is differs
from other occupations for the reason that the success in treatment or failure
depends upon factors beyond the control of doctor. No doctor is allowed to take
undue advantage of this fact and allowed to act negligently which can result in
damage to the health of patient.
Number of litigation's in medical profession is
increasing day by day. Super specialist doctors are also vulnerable and sued
under civil and criminal litigation. This creating complex in the mind of doctor
to be over precautions in the course of treatment, ultimately affecting entire
medical profession and legal system in different ways.
Hence, for the purpose of preventing medical negligence cases we will discuss
various aspects of medical negligence one by one in this series of articles,
Which includes history of medical negligence, doctor patient relationship,
duties of doctor towards patient, duties of patient towards doctors, areas of
medical negligence, causes of medical negligence, importance of consent in
medical profession, liability and its extent, approach of various countries to
medical negligence cases, medical negligence and law in India, Indian
constitution and medical negligence, and finally landmark judgement's.
Objective of this research study is to understanding the legal relationship
between Health care service providers and patients and Study the basic concept
of doctor patient relationship, the concept of liability, importance of Consent
in medical filed and approach of various countries to medical negligence cases.
Medical malpractice, Medical Negligence, Medical Law, medical malpractice claim.
Medical negligence and Indian legal system.
Analytical Research method with support from various other methods as per need
to elaboration of the concept of medical negligence.
Medical Negligence means any misconduct by a medical practitioner by not
providing enough care resulting in breach of their duties which results in harm
to the patient
Elements must be proven:
- A professional duty owed to the patient;
- Breach of such duty;
- Injury caused by the breach; and
- Resulting damages.
Duties of Physicians To Their Patients
Obligations to the Sick- It are a duty of every physician to help the sick
person with his best knowledge and skills. No patient should be discriminated on
any grounds in course of treatment.
The Patient must not be neglected- before initiating treatment, during treatment
and after treatment; patient must be informed with relevant facts related with
diagnosis, prognosis, mode of treatment, advantages and disadvantages, etc.
Patience, Delicacy and Secrecy:
Physician or any other health care service
provider is not allowed to disclose patient’s details or data to some other
purpose except Legal purpose. It is obligatory on hospital and other service
providers to keep record of patient till the period of three years.
good doctor should begin his treatment on grounds of diagnosis.
Various investigation and help of technology can be taken appropriately to do
correct diagnosis on which prognosis is depend.
Appointment of Substitute:
In absence of on self-it’s a duty of doctor to
arrange some other doctor for patient’s safety. Mostly it is needed in IPD
patients. Where patient required more monitoring and treatment.
Statement to Patient after Consultation-
Patient shall be explain detail about
his diseases status and all relevant question he is asking at consultation and
Treatment after Consultation- Treatment shall be only after proper consultation
personally while telephonic consultation is recommended in follow- ups.
Important Causes of Medical Negligence Different pathies for treatments:
Allopathic concept referred to as scientific
medicine, which is proved on animals via experimentation. Allopathic mode of
treatment is depends on various investigations and diagnosis. This pathy is
accepted universally. The majority of medical schools in different countries are
allopathic medical schools.
Countries having less number of pathies for treatment are not affected much by
medical negligence law suit. It became easy for such countries to design uniform
laws which help in governing; Preventing and controlling unwanted claims of
In Indian scenario it is more than nine different pathies currently in use for
treatment of patient helping in error in medical treatment and increases graph
of medical negligence cases every year. Pathies such Ayurveda, Homeopathy, Unani,
Sidhha, Naturopathy, Traditional Chinese Medicine (TCM), Chiropractic
practitioners, Complementary Medicine and Alternative Medicine (CAM)
Various pathies for treatment are very useful and at the same time it is
confusing for patient to decide the correct one. Doctors from one specific
stream is practising different other pathies without proper knowledge. Approach
of different pathies towards same disease is different. Mode of treatment also
changes depends on basic doctrine of different pathies. Patients are getting
confused in selecting exact mode of treatment as every pathy have its own merits
Treating one particular disease doesn’t mean that patient will not suffer from
any other disease, selecting one pathy for treatment can help patient but
variation of drugs, medicine and its ways of implication also have great role in
All the factors related with various pathies are having its own benefits and
limitations and one of the reasons for increase medical negligence claim in
country like India.
New technologies in medical field:
medical laboratory technology is required to
work in medical diagnostic, research and other laboratories. Starting from
collecting different samples and performs tests to analyse body fluids, Tissue,
and other components in Urine, Blood, and Sputum. Each such step deals with
medical negligence at its basic level. Subjects like biochemistry, microbiology,
haematology, transfusion science, histopathology, technical laboratory skills,
Radiography, Hearing aid technology, Optical technology, X-ray Technology. All
this deals with diagnostic value of patients condition and important for disease
diagnosis and deciding mode of treatment. Any negligence here can result into
medical negligence claim unnecessarily.
Poorly developed health policies:
Various policies developed by appropriate
authorities of different countries will help to prevent medical malpractice
claim but those policies are different in different countries as per the
supportive laws enforced in country. In India interpretation of different legal
provisions to medical malpractice are making the process more complicated. It is
a need of time when medical negligence claims are increasing day by day, we
should frame strict laws and different policies for implication in medico legal
filed preventing medical malpractice claims.
Lack of services:
Various services which are important to save patients life,
lifesaving medicines, skilled staff in hospitals, Tertiary services like
ventilator, Defibrillator, are mostly not available in the general hospital.
Considering government hospital and services provider by them, it is beyond
imagination condition where doctor needs to do operation under light of mobile
torch. Sealing wall of operation theatre is full of fungus. Infected
surrounding of ICU. These all areas need to consider for strict implementation
of standard protocol.
Undue competition in medical field:
Competition in medical field is not hidden.
As cost of medicine are increasing day by day with effect to invention of new
molecules, Pharmaceutical companies are spending huge amount of money for
invention of new medicine providing fastest relief to patients suffering. Using
modern technology in healthcare services are no doughty expensive but such
expensiveness should be reasonable. In India CUT practice concept is very well
established which is one of the reason behind high price of medicines.
Indian Legal Provisions
Provisions of IPCSection 29 of Indian penal code- Documents / Record keeping
Medical record shall be store for the period of three years from the date of
registration. Such record shall be cogent, accurate, without overwriting ad any
suspicious change. Record shall be accurate in relation with physicians written
orders and nursing chart written by nursing staff.
Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused
of criminal liability. Under Section 80 (accident in doing a lawful act) nothing
is an offence that is done by accident or misfortune and without any criminal
intention or knowledge in the doing of a lawful act in a lawful manner by lawful
means and with proper care and caution.
Section 87- act not intended and not known to be likely to cause death or
grievous hurt done by consent. Physician should explain nature of procedure, its
benefits, Purpose and effects. Any alternative method if available, Adverse
effects in case of not taking treatment.
Consent given for specific procedure, treatment, will not be available to other
treatment procedure. The only exception is when life of patient is in dangers.
There should be different consent for diagnosis and treatment.
According to Section 88, a person cannot be accused of an offence if he performs
an act in good faith for the other’s benefit, does not intend to cause harm even
if there is a risk, and the patient has explicitly or implicitly given consent.
Section 92- act done in good faith for benefit of a person without consent
Section 324, 326 - punishment for culpable homicide not amount to murder
Section 312,313,314,315,316- offences related with miscarriage.
Section 304-A of the Indian Penal Code of 1860 states that whoever causes the
death of a person by a rash or negligent act not amounting to culpable homicide
shall be punished with imprisonment for a term of two years, or with a fine, or
Section 337- causing hurt by act endangering life or personal safety of others.
Section 338- causing grievous hurt by act endangering life or personal Safety of
Section 341,342 – detaining patients body for non- payment of bills may also
fall within the definition of wrongful restraint or wrongful confinement
Liability Under Law of Tort
Damnum Sine Injuria
Damnum sine injuria is a Latin legal maxim which basically means damage without
injury. It means an actual loss which occurs without the infringement of any
legal rights. This is because the mere loss of money or money’s does not amount
to any tort action; real violation of some rights must take place in the form of
legal damage. No liability can arise in such cases.
, doctor with 20 years of medical practice suffered reduction
in number of patient after opening of new clinic by another doctor in same
Injuria Sine Damno
The principle of injuria sine damno means an infringement of rights without
actual losses. Since this leads to infringement of rights, liability can arise
even if no person suffers actual or substantial losses.
, Detaining patients body for non- payment of bills may also
fall within the definition of wrongful restraint or wrongful confinement
Principle of Vicarious Liability
The general rule of tort liability is that the person who causes damage must pay
compensation. In certain cases, however, liability can arise on third parties
also called vicarious liability. In order for vicarious liability to arise,
there should be some legal relationship between the defendant and the third
party. Vicarious liability can arise in the course of employment due to the
master-servant relationship between employers and employees.
, wrongly given medicine by hospital staff nurse to the
patient results in allergic reaction and subsequently death. Here hospital who
is employer of the nursing staff is also liable for wrongful act of nurse under
principle of vicarious liability. Therefore, one partner can be liable for the
defaults of another.
Volenti Non-Fit Injuria
Person may suffer damages when he consents to some act. This consent may be in
the form of knowledge of all the possibilities of damages and person shows free
will to undergo it. In such cases if he is suffering any damages he cannot seek
A 75 yrs. patient who went under procedure of hip
replacement was asked to take strict bed rest for 20 days at home.
Whereas due to no pain and discomfort patient travel continuously for 20 hrs. By
train. Resulting in damage to the operating site and further complications. The
patient here cannot claim compensation. This is because the law presumes that
he was aware of these risks and still did the act which was not permitted.
The rule of a strict liability says that if any
commercial activities harm somebody, it should compensate him. This liability
will arise even if it took all necessary precautions to prevent the damage.
Rylands v. Fletcher
Administration of intramuscular (IM) injection intravenously
(IV) by physician.
In this article we have summarized the areas of medical negligence in short,
those are the important areas in medical negligence cases. In upcoming articles
we will study those areas one by one in detail with reference to views of
various countries and landmark judgments given by apex court.
Author by writing this articles wish to spread awareness of medical negligence
in the society, also wish to suggest correct Protocols and Guidelines for
healthcare service providers . This will help in developing health laws, giving
ideal care and cure to the society at large.
- Advocate Act, 1961
- Constitution of India
- Indian penal code 1860
- Consumer Protection (Amendment) Act, 2002
- Consumer Protection Act, 1986
- Homeopathy (Minimum Standards of Education Regulations, 1983
- Indian Medical Council Act, 1956
- Indian Medicine Council Professional Conduct, Etiquette and Ethics
Written By: Dr. Surendra C. Sapale (LLM III Sem. - CSMU,) Navi Mumbai.
Contact No. 9922591336, email –[email protected]