Losing someone to the carelessness of the medical experts is a distressing phenomenon which can be seen across many local as well as established hospitals. Irrespective of a 4-month old baby treated with painkillers or a patient given acid instead of water to drink. These cases are an example that even the slightest negligence from the doctor or hospital side can lead to some unforeseen and unavoidable circumstances. We are going to discuss such cases related to medical negligence and laws in India.
What is medical negligence?
Medical Negligence is the failure to practice due care to the patient which may cause injury or may lead an existing condition to get worse. The cause for medical negligence in India could be a wrong diagnose, incorrect treatment or mistakes during medical surgery. Medical Negligence could be categorized into active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence."
The three main aspects of medical negligence are as follows:
The offender has a duty to take care of the complainant The offender has breached the terms of his duty of care The complainant is injured or facing complications due to the offender's breach
In a relevant case of the state of Haryana vs Smt Santra, the court verdict states, "Persons who offer medical advice and treatment implicitly state that they have the required skillset and experience to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. In legal terms it is known as an "implied undertaking" on the part of a medical professional."
Does error amount to negligence?
Perfection is not possible for anyone and even the specialists can commit a mistake in diagnosing a disease. A doctor can only be charged with medical negligence in case the patient proves a failure by the doctor which could have been resolved in case the doctor would have provided proper care to the patient.
Doctors must have the required skills but they cannot guarantee the perfection of their skill or cure. In case a doctor adopts the right course of treatment and works with the best-suited method they cannot be blamed for negligence if the patient doesn't get treated completely.
What amounts to Negligence?
Certain conditions must be met before considering the liability of a doctor or a hospital:
The accused must commit an act of neglect or commission That act must be in violation of the person's duty; and It may have caused harm to the patient.
Can patients launch action against medical negligence?
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Medical Negligence is an offence to the legal duty of care. A breach in the legal duty of care gives a right to the patient to launch an action against negligence.
This law falls under Article 21 and 32 of the Constitution to help victims of medical negligence in India.
Article 21
Article 21 of the Constitution guarantees the right to life and personal liberty to every citizen.
Article 32
Article 32 provides the right to Constitutional remedies. This means that a person has the right to move to the high court or the Supreme Court to protect their fundamental rights. The Supreme Court has the power to issue writs under Article 32. Therefore, if you want a remedy for negligence you can file a suit under article 32 of the medical negligence laws in India.
Basic steps on how to file a medical negligence case
Step 1: Identify the jurisdiction where the complaint is to be filed.
Step 2: Draft a complaint which contains all the important facts like the cause of action, the loss suffered, and the amount claimed. It should also have the name and address of both the patient, doctor and the hospital.
Step 3: File the copies of the evidence and the supporting documents. They should include the prescription, bill of the medicines purchased, bill of the hospital, medical reports and any other relevant records.
Step 4: Besides compensation, victims can also ask for the refunds, losses, lawsuit costs, and interest amount.
Step 5: Lastly, the lawyers of both parties will explain their sides before the court.
Furthermore, the victims of medical negligence must file a lawsuit within a period of 2 years' maximum.
