Medical negligence

Introduction

• Professional negligence, more specifically, medical negligence is, as the term suggests, relates to the medical profession, and is the result of some irregular conduct on the part of any member of the profession or related service in discharge of professional duties.
• Apex body dealing with medical negligence cases is National Consumer Commission
• Contributory negligence is a defense in Civil negligence and is  related with Avoidable consequence rule.

Medical negligence can be seen in various fields like:

• When reasonable care is not taken during operations,
• During the diagnosis,
• During delivery of the child.
• Issues dealing with anesthesia etc.

Components of Medical Negligence: Winfield stated that a negligent act comprises of three main components. They are-

1. Existence of legal duty
2. Breach of legal duty
3. Damage caused by the breach

• Section 304-A of the Indian Penal Code, 1860 [IPC] prescribes punishment for death/ 2 years of imprisonment with fine or both due to rash or negligent conduct of a person. It is under this section that doctors or other medical practitioners have generally been proceeded against under criminal law.
• “Section 304-A deals with criminal negligence. Criminal negligence occurs when the doctor shows gross lack of competence or inaction, gross recklessness or wanton indifference to the patient’s safety, or gross negligence in the selection and application of remedies. It involves an extreme departure from the ordinary standard of care.”

The Supreme Court of India has also issued certain guidelines. What goes to the basis of these guidelines is that once a criminal investigation begins against a doctor, the loss of reputation is nearly irreversible.

1.  Government of India along with the Medical Council of India should formulate certain rules/regulations etc to regulate aspects of negligence in medical practice. While this exercise is pending, the following guidelines must be kept in mind while prosecuting medical practitioners.
2.  To make a case against a doctor, a private complainant has to submit evidence of a prima facie case before the authority taking cognizance of the act. Such authority must also include credible opinion given by another competent doctor to support his case.
3. The investigating officer must also, independently, obtain an impartial ad unbiased opinion of a doctor who practices in the same field in the same regard.
4.  The doctor concerned should not be arrested like in a regular prosecution. He may be arrested if there is a fear that the doctor will not make himself available for investigation.

 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of medical malpractice in India

 Sec. 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person’s benefit.

 Sec. 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to a person and that person has not consented to suffer such harm.

Sec. 93 saves from criminality certain communications made in good faith.

Don’t Forget to Solve all the previous Year Question asked on Medical negligence