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  1. Medical Negligence

    —  Failure of operation and side effects are not negligence.

    —  Negligence is absence or lack of care that a reasonable person should have taken in the circumstances of the case.

    —  For medical negligence ingredients are essential.

    ◦       That the doctor owed certain standards of care and duties.

    ◦       Doctor Failed to perform his duties and necessary care was not taken.

    ◦       Due to lack of care patient suffered injury.

    ◦       There should be close proximity between negligent act and resultant injury.

    Emergency Cases Guidelines:

    • Consent is not required in emergency cases
    • Drug reactions are not consider negligent
    • Any Act done in good faith is exempted

    Case Law

    Parmanand Katara v. Union of India

    A Scooterist severely injured in a road accident was refused for admission when taken to nearest hospital on the excuse that hospital was not competent to handle medico legal cases

    Supreme Court Categorically stated that ‘Article 21 of the constitution casts obligation on a state to preserve life.  Also, every Doctor whether at Govt. Hospital or otherwise has the professional obligation to extend his/her service with due expertise for protecting life of any patient.’

    Highest Compensation Awarded

    Kunal saha v.  AMRI (Advanced Medical Research Institute)

    • Patient Complaint of acute pain, fever, rashes. Doctor recommended higher doses of steroid. The patient was administered 80 mg of depomedrol and prescribed 2 no’s injection daily for 3 days. The maximum recommended dose of the drug for any clinical condition is 40-120 mg at minimum interval of 1-2 weeks b/w the doses.
    • After few days the patients was diagnosed with toxic epidermal necrolysis (TEN) which is a rare skin conditions caused by reaction to drugs.  Thereafter patient died at Breach Candy Hospital, Mumbai.
    • Held:  Supreme Court asked the doctors and hospital to pay 5.96 Cr. to Kunal Saha (Husband of Deceased).

     

    Protection to Doctors

      Jacob Matthews Vs State of Punjab (2005) Crl. L.J. 3710              

    •  A complaint against a doctor is not to be entertained unless the allegation against him is supported by a credible opinion given by another doctor. If the doctor feels that negligence on the part of the medical practitioner has resulted to the loss of well being of the plaintiff, then the complaint may be registered. 
    •  The investigating officer before proceeding against the accused ought to get a medical opinion from a competent doctor, preferably in the government services, qualified in that field of medical sciences who can give an impartial opinion. 
    •  The arrest of the accused should be withheld unless  it is believed by the investigating officer unless he believes that it is necessary to arrest the accused so as to further the investigation of the case. It may further be withheld unless it is believed that the accused doctor will not make himself available to face the prosecution unless he is arrested.

    Some Do’s and Don’t  For Doctors

    —  Ordinary and reasonable care and skill should be applied at all times with all patients.

    —  Detail record in respect of all the patients should be methodically maintained.

    —  Consent of patient whenever the situation demands must be obtained in writing.

    —  X-ray filming should be advised in case of suspected facture of jaw .

    —  A specialist should be preferably be consulted in case diagnosis is not precise.

    —  Do not go beyond the point of your skill.

    —  In case the nature of treatment is new or is an experiment, the consent of the patient should be obtained.

    —  Always give proper instruction regarding the dosage, duration and likely effect of medicines to the patients.

    —  Do not Delegate your duty to your juniors and staff which is in your professional competency.

    —  In case of medico legal implications, do inform the police and remember that life of victim is more important than anything else.

    —  Issue genuine certificates and bills

    —  In cases involving complicated surgeries maintain video filming or CD and give one copy under reciept to patient on discharge.

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  3.  

    Medical Negligence: Understanding the Concept.

     

    Since the ancient times certain duties and responsibilities have been cast on persons who adopt the sacred profession. Since then Medical Profession is one such kind of sacred profession which imposes certain kinds of duties upon the doctors such as standard care, providing information to patient/ attendant, consent for treatment, and emergency care towards the patient. Any lack in such duties by a doctor constitutes deficiency under consumer protection act and may also create civil or criminal liability against doctors if it constitutes negligence on their part.

    Some duties are also imposed on doctors by Indian Medical Council under which a provision in respect of medical records has been made in Indian medical Council (Professional conduct, Etiquette & Ethics) regulations 2002. Regulation 1.3.1 & 1.3.2 states that every registered medical practitioner has to maintain medical records pertaining to tis indoor and outdoor patients for a period of 3 years from the date of commencement of treatment in prescribed form given by MCI and if any request is made for medical records either by patients/ authorised attendant or legal authorities then same must be duly acknowledged and documents be issued within a period of 72 hours. Non providing of medical records to the patient/ attendant may amount to deficiency in service under Consumer Protection Act, 1986.

    In M Ramesh Reddy v. State of Andhra Pradesh [2003(1) CLD81(APSCDRC)] , the hospital authorites were held to be negligent, inter alia for not keeping the bathroom clean which was covered with fungus and was slippery, Which resulted in fall of an obstetrics patient in bathroom leading to her death. (1 Lac compensation was awarded in this case).

    Levying in excess/ wrong charges is considered as deficiency of service and can be claimed under Consumer Protection Act.

    The definition of Negligence as given in Law of Torts, Rattan Lal & Dhiraj Lal (edited by Justice G.P Singh) lays down three elements:

    • A legal Duty to exercise “ordinary care and skill”
    • The breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent & reasonable man would not do.
    • Resulting in injury to the plaintiff’s person or property.

     

    Professionals may be held liable for negligence on one of the findings:

    • He was not possessed of requisite skill which he professed to have possessed.
    • He did not exercise, with reasonable competence in the given case, the skills which he had possess.

     

    So it is the matter of skill which a prudent man would have used in a given particular circumstance. If someone deviates from such standard procedure then he/she may be liable for an act which constitutes negligence under civil and criminal law.

    But, the jurisprudential concept of negligence differs in criminal and civil law. The element of mens rea i.e Criminal mind is essential under criminal law to constitute an act as an offence. Without mens rea the doctors shall only be liable under civil law for compensation. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e gross or very high degree. Negligence which is neither gross nor of high degree may only be an ground for action under civil law and under criminal law i.e under section 304A and even 304 of Indian Penal Code.

    Legal pulse team not only provide legal and medico-legal services to the finest and discreet doctors of medical fraternity but also have a vision to make common people aware of their rights and duties when they avail services from any doctor / hospital or nursing homes.  Understanding the concept of medical negligence will make the patients think twice before filing false, vexatious and frivolous complaints against the doctors whose whole carrier and reputation comes to ground even if the complaint was false because such injury is irreparable which are done just as a tool for taking out unjust compensation. In this regard, the Hon’ble Supreme Court in a landmark judgment in  Dr.Suresh Gupta v. Govt. of NCT Delhi AIR2004 SC 4091 has held that the doctors should not be held criminally responsible unless there is prima facie evidence before the in the form of a credible opinion from another competent doctor , preferably government doctor in same field of medicine supporting the charges of rash and negligent act. At last, we should remember that services done by doctors are noblest of all and they should be protected. 

    Team LEGAL PULSE

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