MEDICAL NEGLIGENCE: THE DETERIORATING STANDARD OF

CRITICAL CARE

ABSTRACT

-ANVI VIJAY

There are not any hopeless patients. There are solely dangerous doctors" we tend to live in an
era where the last profession that anyone would ever need to realize professionally has been
commercial, it’s a medical community. Thus, it's currently come back underneath the range
of the Consumer Protection Act. This article describes how medical negligence could be a
violation of human rights and also the right to health which is an inherent fundamental right
and falls underneath the extended read of Article 21 (Right to Life). It is no surprise that even
the slightest mistake created by a doctor will have life-altering effects on the patients. So, it's
the duty of a doctor to require correct care to avoid such happenings. It explains what medical
negligence means and observes its consequences. It throws light on the present circumstances
relating to medical negligence in current scenarios. The landmark finding recently given by
the Supreme Court in 2 ill-famed medical negligence cases has been mentioned briefly. And
describes how a patient can seek redressal of grievances from the Consumer Courts. Hence,
this article aims at discussing the varied aspects of negligence, just as means and kinds of
negligence, and also the thought of duty of care, degree of care, and standard care, as thought
by the law.
Keywords: medical negligence, consumer protection act, duty of care, Supreme Court,
human rights

Submitted by: Anvi Vijay Submitted to: Mr. Hemant Singh

BA.LL.B (3rd Semester) Assistant Professor
Law of Tort
Amity Law School , AUR
What is medical negligence?
The term "medical negligence" is normally used synonymously with "medical malpractice."
well talking though', medical negligence is simply one wished felony a part of a medical
malpractice claim. The medical career is taken into consideration as a noble career as a result
it facilitates maintaining existence, we tend to trust existence is God-given. Thus, a health
practitioner figures in the scheme of God as he stands to maintain his command. An affected
person usually procedures a health practitioner/clinic supported through his/its reputation.
Expectations of an affected person are two-fold: medical doctors and hospitals are predicted
to deliver medical remedy with all of the information and skills at their command and 2nd
they may be going to now no longer do something to harm the affected person in any way
both because of their negligence, carelessness, or reckless attitude in their employees, even
though a health practitioner won't be in a total function to keep away from losing his affected
person's life in any respect times, he is predicted to apply his data and skills withinside the
maximum suitable way maintaining in thoughts the hobby of the affected person has
entrusted his life to him. Therefore, it is predicted that a health practitioner does important
research or seeks a document from the affected person. what is more, until it is a companion
emergency, he obtains the consent of the affected person earlier than persevering with any
fundamental remedy, surgical procedure, or possibly invasive research. Failure of a health
practitioner and clinic to discharge this duty is a tortious liability. A tort is a civil wrong
(proper in rem) as in opposition to a written contractual duty (proper in personam) – a breach
that attracts judicial intervention through the way of providing damages. Thus, an affected
person's proper to get hold of clinical interest from medical doctors and hospitals is a civil
proper, the hyperlink takes the shape of a settlement to a point because of consent, price of
the fee, and overall performance of surgery/supplying remedy, etc. while keeping critical
additives of tort.
Thus, medical negligence consists of 3 components:
➢ Existence of legal duty: a doctor or a physician has a duty of care towards the patient
they decide to undertake the treatment of, they have the duty to decide whether they
are eligible to take the patient’s case or not they have the duty to administers the
treatment and to take the consent of the patient before the procedure or treatment
begins and under this duty, it is expected that the clinician will bring a reasonable
degree of knowledge skills and practice and will exercise a reasonable degree of care.
Consequently, in the case of Laxman Balakrishna Joshi versus doctor Trimbak
Babu Godbole, it was held that the duties which the doctor owes to his patients are
clear a person who holds himself out ready to give medical advice and treatment
impliedly undertakes that he's possessed of skills and knowledge for the purpose, such
person when consulted by a patient owes him certain duties and breach of any of
those duties given action of negligence to the patient. Thus, the appellant was found
 guilty of negligence in a wrongful act towards the patient and was liable for the
damages.

➢ Breach of legal duty: breach of duty of care can also be known as negligence if a
doctor negligently or irresponsibly breaches his or her duties of care towards the
patient and cause injury Clinician shall be liable for damages. the breach of legal
duties can consist of prescribing a patient incorrect medication, administering
incorrect drugs, failing to diagnose a health condition entirely, ignoring or misreading
laboratory results, failing to order adequate tests, failing to warn a patient about the
known risk of the surgery procedure, treatment or making a severe mistake during the
surgery such as performing the surgery of the wrong part of the patient’s body or
carelessly leaving foreign objects tools inside the body of the patient. In Samira
Kohli v. Prabha Manchanda and Ors, it was decided that "permission obtained for
diagnostic and surgical laparoscopy and laparotomy if needed does not equate to
consent for a total hysterectomy with bilateral salpingo-oophorectomy. The appellant
was neither a minor nor was he or she mentally ill or disabled. There was no concern
about another person giving consent on the patient's behalf because she was a mature
adult. The respondent ought to have waited until the appellant recovered
consciousness and given adequate consent because there was no emergency, and the
appellant was just momentarily unconscious while under anaesthesia.

➢ Damage caused by the breach: doctors sometimes don’t fulfill the requirement of duty
of care and the patients have to go through major inconvenience. Misdiagnosis or
delayed diagnosis, Failure to treat, and Prescription drug errors are some of the
injuries that patients suffer due to the malpractice of doctors. A patient injured by
medical malpractice will recover a large sort of damages from medical bills to the loss
of enjoyment of life to future earnings losses.

Patient-Doctor Relationship

The doctor-patient relationship may be an associate degree relationship of a special

trust associate degree of confidence with an underlying understanding of the duty to
act for the good thing of the fiduciary with a robust reliance on the abilities and
acumen of the doctor, he is being in a very string important position. The relationship
between a patient and doctor is built on the best level of trust and confidence, and
health is a dear asset to a person’s wealth and the sustenance of the family, any slip of
recommendation, wrong and untimely diagnosing, compromised customary of care
and precaution, etc. usually threatens the quality of the profession with the allegation
of commercialization and money creating business. in a very landmark case, the court
held that “the perspective of a patient is poised between trust in the learning of
another and therefore the general distress of 1 who is in a very state of uncertainty and
such ambivalence naturally ends up in a way of inferiority and it's, therefore, the
 perform of medical ethics to make sure that the superiority of the doctor isn't abused
in any manner. It is a good mistake to assume that doctors and hospitals
are straightforward targets for the discontent patient.

Liability of health care provider?

The patient’s rights are essentially by-product rights, which emanate from the duty of
the healthcare supplier. The Supreme Court in various cases has viewed that the
proper to life as enshrined in Article twenty-one of the Constitution of India includes
proper health and medical treatment. the proper to live would be insignificant unless
treatment is assured to a sick person. Article 19(1) provides six basic freedoms to any
or all its voters which might be restricted only on grounds mentioned in Clauses (2) to
(6) of Article nineteen of the Constitution. These basic freedoms are often effectively
enjoyed provided that an individual has healthy life to measure with dignity and free
from any quiet unwellness or exploitation that is further ensured by the mandate of
Article twenty-one of the Constitution. once a breach of this right happens, the
healthcare supplier is commanded to blame for negligence.

Remedies for tort feasor

A patient World Health Organization consults a doctor can presume that he is

skillful and competent to heal his disease, observe of medication is capable of
rendering noble service to humanity provided ordinary care, sincerity, potency, and
skilled skill is determined by the doctors. The first remedy for negligence is
compensatory and might be in associate degree passing add that will be assigned to
the damage suffered. Damages area unit awarded for each economic and non-
economic loss. In cases involving negligence leading to personal injury, extra
damages are awarded for things like medical expenses and loss of financial gain.
Remedies which the injured party can avail compensatory action while seeking
monetary compensation before the Civil Courts, High Court, or the Consumer Dispute
Redressal Forum under the Constitutional Law, Law of Torts/Law of Contract, and
the Consumer Protection Act, another remedy is Punitive action, filing a criminal
complaint against the doctor under the Indian penal Code, Disciplinary action can also
be availed by the tort feasor by moving the professional bodies like Indian Medical
Council/State Medical Council seeking disciplinary action against the health care
provider concerned and Recommendatory action lodging complaint before the
National/State Human Rights Commission seeking compensation is also a type of
remedy injured party can use to recover the damages. In cases involving negligence
leading to personal injury, extra damages are awarded for things like medical
expenses and loss of financial gain.

CONSEQUENCES OF STANDARD OF CARE REQUIRED OR EXPECTED IN INDIA

A medical professional who is accused of medical negligence may experience a range of
repercussions. The repercussions could be criminal or civil, and they should also lead to the
healthcare provider being fired. Medical malpractice often has civil legal repercussions. Since
negligence is a civil violation, it is governed under tort law. Because the medical industry is
currently covered by The Consumer Protection Act of 1986, monetary compensation is
frequently demanded by the plaintiff in consumer forums. Even Lok Adalat allows for the
filing of complaints. Medical professionals worry about facing criminal charges while
performing their duties. A doctor's reputation and morals are swiftly damaged if a criminal
inquiry is opened against him, and the damage is almost irreparable. It is important to note
that strict and vigilant punitive legislation will undoubtedly be a harsh blow to the sacred
relationship between a doctor and a patient. Because he cannot disregard the legal sword
hanging over his career, for example, if he failed or categorically failed to do the therapy in a
normal manner, the doctor who is prepared to treat a distinctive case will not find the
freedom to perform his unusual treatment with an unexpected result. According to Section
304A of the Indian Penal Code6, a doctor is frequently legally responsible. But there needs to
be "gross negligence." If a physician is discovered to have medical negligence.

COMPARATIVE STUDY
While looking at medical malpractice I came discovered numerous cases and occurrences
illustrating how industrialized nations kept tabs on instances of medical malpractice and
mistakes. The authorities can investigate why such examples of negligence occur by
following the situation happens. After identifying the issue, they can take steps to lessen the
error, which frequently results in severe hurt, damages, and sometimes even permanent
handicaps as well as death.
In the UK: According to the UK's National Health Service Litigation Authority (NHSLA),
10,129 claims suits were submitted in the 12 months ending in March 2013, up from 9,143 in
the previous year the year before. Each year, the NHSLA, a special health authority tasked
with managing instances of clinical and non-clinical negligence on behalf of the NHS,
releases an information sheet summarising the specifics of claim cases. The NHSLA reports
that beginning from the date of notice to the NHSLA to the date when compensation is
agreed upon or the claimant discontinues their claim, claims are now settled in an average of
1.25 years. As a result, the authority keeps track of how long it takes to handle the case of a
claim. In its yearly data sheet, a breakdown of the claims cases is provided by the specialty,
along with information on which specialty received the greatest compensation. It was shown
that each year, NHS safety failures caused 500,000 patient injuries and 3,000 deaths "Known
cases of error," he said, "include 161 patients who had foreign things, like swabs or surgical
equipment, left inside their bodies; 70 patients who had surgery performed on the wrong
place in which the wrong part of the body or even the wrong patient was operated on; and 41
patients who received the wrong implants or prostheses." The press covered this extensively.
In contrast, our health ministry lacks information on medical malpractice or errors in Delhi,
let alone the entire nation.

In Australia: A total of 1,700 new claims were reported in the private sector in 2011–12,
compared to 1,300 in the public sector. An average of two years passed between the
occurrence and the time the claim was filed, and three to four years passed between the
healthcare incident and the time the claim was finally settled. Only 9-10% of cases required
more than five years to resolve. The cost of the 2,978 claims from the public and private
sectors was less than $10,000 in 54% of the cases, between $10,000 and $100,000 in 25%,
$100,000 to $500,000 in 16%, and $500,000 or more in 5%. This was revealed in a study
written by the government-funded Australian Institute for Health and Family Welfare. The
study provides a thorough analysis of the number of claims filed in both the public and
private sectors, the average compensation given, the amount of time required to settle claims,
the specialties accounting for the claims cases, and other factors.
In the USA: A study conducted by Johns Hopkins University researchers and published in the
April 2013 issue of the British Medical Journal Quality and Safety found that somewhere
between 80,000 and 160,000 people die each year as a result of diagnosing errors. The third
most common cause of mortality in the US is medical malpractice, according to the Journal
of the American Medical Association (JAMA). Yet only one in eight, or 2%, of people hurt
by medical malpractice filed malpractice claims, according to a Harvard Medical Practice
Study. Without any hard evidence, it is frequently assumed that a large portion of US
litigation is pointless. Over 1,400 closed medical malpractice cases were analyzed by
researchers at the Harvard School of Public Health, who determined that 97% of them were
valid and that around 80% of them caused serious injury or death. According to a 2006
survey, medical negligence claims barely make up 0.3% of the total cost of healthcare in the
country, and plaintiffs only prevail 21% of the time.
Why can't India do it if these other nations can? Why do doctors seem offended that their
carelessness or mistakes are being investigated and noted here? Why does the government
ignore the public's call for a more transparent system of health delivery? These are significant
issues that require an immediate response.
When we think of a landmark judgment in a medical negligence case, the first case that
comes to mind is one of the most talked-about cases with the highest amount of
compensation granted to date. Kunal Saha v. AMRI Hospital (advanced medical research
institute), also known as the Anuradha Shaha case, was decided. This case was filed in 1998
against the Kolkata-based AMRI hospital and its three doctors, Dr. Sukumar Mukherjee, Dr.
Baidyanath Halder, and Dr. Balram Prasad, alleging medical negligence. The facts of the case
are that the plaintiff's wife had a drug allergy, and the doctors were negligent in prescribing
medicine, which aggravated the patient's condition and eventually led to death. In summary,
the facts and circumstances of the case were presented to the Supreme Court on October 24,
2013, and a compensation of approximately 6.08 crore was awarded for the death of his wife.
Is that amount, however, sufficient to fill the void left by her death? No amount of money can
bring her back, and what caused her death was the doctors' negligence. A minor oversight can
have disastrous consequences.
In some cases of medical negligence, compensation to the victim has been given based on
ethical values related to a humanitarian basis, as we can infer from the case of Pravat
Kumar Mukherjee Vs. Ruby General Hospital and ors, in this case, the National
Commission of India delivered a landmark judgment for treating accident victims, happened
the complainant were the parents of a deceased boy named Samanate Mukherjee, a second-
year B. Tech boy who studied at Ruby General Hospital. The boy was hit by a Calcutta
transport bus and was rushed to the hospital, which was 1 km away from the scene of the
accident. The boy was conscious when he was taken to the hospital, and he showed his
medical insurance card, which clearly states that the boy will be given Rs.65000 by the
Insurance company in case of an accident; relying on it, the hospital began treating the boy,
but after some initial treatment, the hospital demanded Rs15000, and on non-payment of the
demanded money, the hospital discontinued treatment of the boy, and the boy died. This was
the case, and the National Commission found Ruby Hospital liable and awarded the parents
Rs.10 lakhs in compensation. So, in this case, the court considered humanitarian factors and
awarded compensation to the complainant.

STUDENT COMMENT
Medical negligence is the worst type of behavior by a medical professional because people
expect such a person to save others' lives rather than take or make them worse. Every day,
cases of medical negligence occur, causing the patient pain, agony, and suffering. And as
discussed above there are certain provisions that protect the rights of the patients, But there is
no paramount law regarding this tort, other than India there are other countries that have strict
laws towards doctors who don’t fulfill their duty of reasonable care towards their patients and
cause injury to them. And now the question is, Why can't India if other nations can? Why
can't severe regulations be put in place to ensure that no more people die as a result of a
single act of carelessness? The plaintiff, who is the patient, is always required to prove how
the carelessness occurred when discussing the legislation relating to medical negligence in
India. Therefore, even if a patient claims carelessness, the law will demand stronger proof.
Here, it becomes very difficult for a normal person or patient to ascertain the precise damage
and the relationship between the injury and the doctor's negligence. It is high time for the
laws governing medical malpractice to be amended to put patients' needs first. And civil
societies should educate patients about their rights against medical negligence through an
appropriate education channel.
Reference:
➢ The Law of Torts by Ratanlal Ranchhoddas
➢ https://www.scconline.com
➢ https://www.ijsr.net
➢ https://www.latestlaws.com
➢ https://indianexpress.com
➢ https://www.patientclaimline.com
➢ https://asiindia.org