Medical Negligence In India: Pre And Post Covid Analysis

Key Takeaways

• Cases of medical negligence have become a frequent occurrence in India.
• In most of these cases justice is not granted to the victim as doctors are often given benefit of the doubt due to the nature of their profession.
• Due to the onslaught of the Covid-19 pandemic the number of such cases are rising by the day.
• There is a growing need for strict implementation of existing regulations and bringing in new ones is long overdue in the country.

Introduction

In recent years, medical negligence has become a serious issue in the country. The medical profession which is considered as one of the noblest professions, is also not immune to negligence from time to time which often results in the death of the patient or complete/partial impairment or any other form of injury which has adverse effects on the patient’s health. Many instances have been noted where the doctors are under-educated and perform certain procedures for which they are not qualified resulting in injury which leads to the proceedings in the court of law. Around 52 lakh medical injuries are recorded in India every year, out of which about 98,000 people lose their lives due to medical negligence. It has become a really serious concern for the entire nation. Even the slightest mistake made by a doctor can have life threatening impact on the patients. So, it is the duty of a doctor to work with due diligence to avoid such mishaps.

Definition Of Medical Negligence

Medical negligence is defined as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care of a patient by a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to ‘Medical malpractices’ because of which the victim suffers from some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.

Commission of mistakes or Negligence in the medical profession could result in minor injuries or even lead to some serious injuries which could even lead to death. No one is perfect in this world and even a person who is skilled and has knowledge of a particular subject might also commit mistakes. However, when mistake occurs due to one’s carelessness it is considered as negligence.

What Does Not Amount To Medical Negligence

A doctor shall not be held liable in all the cases where a patient has suffered an injury, if he might have a valid defense that he has not breached the duty of care. In case there is error of judgement on part of the doctor, he shall not be charged against any such actions because even doctors are humans and are bound to make mistakes, therefore, they shall be allowed some relief. Simply because the decision taken by the doctor did not turn out to be favorable, he cannot be held liable for error in judgement. The Courts have held that the doctors cannot be held liable merely based on the fact that they choose an different procedure/ treatment to cure the problem and it did not work as expected, It must be proved that there was breach of duty on his part. A doctor performing his duty with due care and diligence could not be held liable for negligence. However, in case there was an error in judgement due to a negligent act, then it shall be deemed as breach of duty and the doctor shall be held liable for his actions.

There are two situations in which an error of judgement may happen which are as followed:

• An error of judgment – In such cases, it has been recognized that it doesn’t amount to a breach of duty. Just because a doctor’s decision turned out to be wrong, he/she cannot be made liable for medical negligence.
• The error of judgment due to negligence – If all the factors were considered before coming to a decision, then it would be called an error of judgment due to negligence. This amounts to a breach of duty.

Essentials Of Medical Negligence

The following essentials are necessary for proving the commission of medical negligence-

• The defendant owed a duty of care to the plaintiff- A person approaches some other person trusting his skills and specialized knowledge. Therefore, it becomes the legal duty of that person to exercise his duty with diligence which is expected from his colleagues.
• The defendant made a breach of that duty- It is said to be a breach of legal duty if a person does not perform his legal duties as his colleagues would have performed in the same situation.
• The plaintiff suffered damage as a consequence of that breach- The damages and injuries incurred are liable to be compensated. The compensation awarded must be just, fair and reasonable with accordance to the circumstances of the case.

Medical Negligence Pre-Covid Era

Even before the rise of covid-19 the cases of medical negligence were quite high. According to the data released by the State Ministry for Health and Family Welfare, in 2017, only 69 cases of medical negligence were awarded punishment by the Medical Council of India (MCI). This formed 44% of the total cases referred to MCI by the state medical councils. In 2018 only 28% of cases referred to MCI by state medical councils awarded punishments to doctors and until June 2019, 46% or 28 doctors were punished by MCI for medical negligence.

In India medical negligence complaints can be filled with the State Medical Councils, where the accused doctors are registered. The State Medical Councils after receiving a complaint conducts inquiries and investigates the case with the help of a panel of expert doctors. The orders given by the State Medical Councils can be appealed in the MCI or even in the court of law by the patient or the doctors. The punishment given by MCI varies from a warning to the doctor who is found guilty to his removal from the Indian Medical Register depending on the severity of the case.

However, many public health researchers have often pointed out the need for diversified members on the panel to avoid any conflict of interest. They are of the opinion that there needs to be an independent, neutral and external regulatory committee to hold doctors accountable for their actions. The reason behind this is that doctors, in general, hesitate to question other doctors. According to MCI Regulations, professional incompetence of doctors shall be judged by a group of doctors this indicates a possible conflict of interest among the doctor’s group. Often doctors may agree in private that a case occurred due to medical negligence and that they wouldn't have done the same to their patients. But in public, nobody will say anything about other doctors. They will always look to protect their interests as a group due to which most inquiry panels set to investigate such cases never hold the doctors guilty.

In fact, a Parliamentary report on the Indian Medical Council (Amendment) Bill 2013, had highlighted the possibility of a conflict of interest between the inquiry team and the accused doctors in cases of medical negligence. The reports states that the medical professionals probing into the allegations of medical negligence are very lenient towards their colleagues guilty of negligence and none of them is willing to testify another Doctor as negligent. The immediate result of this is that the percentage of prosecution in the medical negligence cases has become almost negligible.

The problem also lies in the fact that in all medical negligence cases, the burden of proving that the doctor was negligent often falls on the patients themselves and during the inquiry, the panel of expert doctors, often ask technical questions to the patients and their families making it almost impossible for them to prove their case. Also, fighting medical negligence cases in courts is a long-haul process and requires lot of money. Due to which there are many cases observed where people from economically and socially vulnerable groups will never go to court.

Another way of filling a complaint against a doctor is through FIR. But there also lies another problem as in most instances FIR are not filed under the correct sections of the IPC which results in the court case not gaining any traction and being dismissed.

Another issue relates to the image that doctors have in India which is one of service to society. This makes it difficult to accuse them of a crime. There is this thought that the doctors are just doing their job etc. So even if doctors are guilty of doing something wrong it is not considered asa criminal error. This is how people view this and hence the police are also hesitant in registering it as criminal complaint. The medical education system in India is in a desperate need of an overhaul. People who are coming in are good in academics, but it is also important that when they qualify, they have a strong sense of ethics, integrity and morals. Apart from this there must also be a strict implementation of existing regulations and bringing in new ones is long overdue in the country. There is also a growing need for strict implementation of law to regulate private practice which due to lack of supervision by the government has fallen victim to laxity and has become more of a commercial activity with only the objective of making as much money as possible.

Medical Negligence Post-Covid Era

Due to the COVID-19 pandemic the healthcare sector has come under unprecedented focus. On the one hand healthcare workers are being hailed as “Corona Warriors”, but on the other hand there have been many reports of patients being denied medical assistance, the non-observance of safety protocols and negligence on part by the doctors endangering the lives of the patients.

Medical negligence cases are on the rise partly due to the rapid increase in the number patients, inadequate infrastructure, and partly owing to the inadequate skills and outdated knowledge of healthcare professionals. The laxity of the regulating body i.e., Medical Council of India in enforcing a strict establishment of protocols regarding diagnostics and treatment has made matters even worse. It is frequently being criticized for not giving out strict guidelines and often protecting the healthcare professionals from their wrongdoing. Because of which and increasing number of patients and their families are seeking recourse from judicial remedies.

However, even the courts are having a hard time in providing uniform justice to the people due to the lack of subject matter expertise and the absence of comprehensive guidelines in these matters. As a result of which often contradictory and conflicting judgments are given by various courts including the Supreme Court.

A recent ruling by the Supreme Court has reduced the threshold for fixing accountability in medical negligence cases by observing that even in case where a healthcare professional might have made a wrong diagnosis, the same will not be considered as medical negligence.

In this time of uncertainty caused by the COVID-19 pandemic, the judiciary remains the only hope for a lot of people aggrieved by the lack of adequate medical infrastructure and the rising instances of medical negligence. There is hope that the Supreme Court will take the necessary measures to preserve the faith and hope of the people.

Landmark Judgements

The following are the most prominent cases of medical negligence in India-

1. Kunal Saha v. Advanced Medical Research Institute- This case was filed back in 1998 which alleged medical negligence by 3 doctors of AMRI hospital; Dr. Sukumar Mukherjee, Dr. Baidyanath Haldar, and Dr. Balram Prasad as well as AMRI hospital. The facts of the case, simply speaking, Mrs. Saha was suffering from a drug allergy. When she went to the concerned hospitals, the three doctors prescribed her medicine which further aggravated her condition which resulted in her death. The Supreme Court gave the final verdict of the case in the year 2013 giving compensation to the family of the victim with a sum of Rs. 6.08 crore. This particular case expanded the horizon of medical negligence in India.

2. V. Krishna Rao v. Nikhil Super Specialty Hospital 2010-In this case Krishna Rao who was an officer in malaria department filed a complaint against the hospital for negligent conduct in the treatment of his wife, who was wrongly treated for typhoid fever instead of malaria fever by the hospital. Finally, the verdict was given in his favor and he was awarded a compensation of Rs 2 lakhs. In this case the court applied the principle of res ipsa loquitor (legal principle for a ‘thing speak for itself’) was applied, and the compensation was given to the plaintiff.

3. Achutrao Haribhau khodwa and Ors v. the State of Maharashtra- In this case, the Supreme Court noticed that in the very nature of the medical profession, skills differ from doctor to doctor, and there is more than 1 admissible course of operation. Therefore, it was held by the court that negligence cannot be attributed to a doctor as long as he is performing his duty with due care, caution, and attention. Just because the doctor chooses a different course of action does not mean that he is liable.

Conclusion

People are starting to losing faith in the medical profession due to some serious medical negligence cases which have emerged specially during this pandemic. Now more than ever there is a growing need for some serious changes in the medical profession as it has completely failed in self-governance. The medical ethics need to be adhered sincerely by the medical professionals. Also, the government needs to implement better supervision over medical practitioners both in public and private sectors.