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    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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