Medical Negligence in India

In the judgment given in Bolam V/s. Friern Hospital Management Committee (1957) 2 All ER 118. , McNair, J., while addressing the jury summed up the law as under:-

The test is the standard that an ordinary skilled person would use if he were to exercise and claim this special skill. The risk of being found negligent is not the same as having the highest level of expertise. It is well established law that it suffices if the man uses his ordinary skills as an ordinary competent person practicing that particular art. I don't think I have much to say about the legal arguments that counsel has made.  As one remembers that there are one or more standards which are perfectly acceptable and if the medical man adheres to one of these standards, then he's not negligent.

WHAT MUST BE PROVED IN A CASE OF MEDICAL NEGLIGENCE:

There are three essential elements to proving a claim for medical negligence. They are as follows:

• Medical negligence (breach of the standard of care)

• Causation

• Harm (injury and damages)

REASONABLE STANDARD OF CARE: The "standard of care" is what a reasonably prudent medical care provider within the same field or specialty should do in caring for you under the circumstances. In a majority of cases, the opinion of other medical practitioners as to what their conduct would have been under the same circumstances is taken on record to establish what a reasonably prudent medical practitioner should have done under the circumstances.

DEFINITION OF MEDICAL PRACTITIONER: One does not have to be a doctor to be held guilty of medical negligence. Any healthcare provider, like a nurse or an anesthetist, can also be held liable for medical negligence if they fail to act in a prudent and reasonable manner.

PROVING CAUSATION: For a patient/next of kin of a patient who believes that they have been a victim of medical negligence, it is necessary to prove causation. The victim will have to prove that not only did the harm was a result of the medical negligence, but that it was also a reasonably foreseeable injury that would've resulted from the said medical error. Causation, which is of two types (1) actual causation and (2) proximate causation, is usually proven through the testimony of one or more qualified experts.

RES IPSA LOQUITOR is a Latin phrase that translates into “the thing speaks for itself” . This is an exception to proving causation for cases where causation is assumed owing to the fact that the resultant injury would have resulted only from a medical error. Eg. In a case of invasive surgery where the medical practitioner leaves an instrument or any foreign material inside the body of the victim, causation would not have to be proved.

INFORMED CONSENT: A patient's informed consent is a form that they sign before undergoing a medical procedure or treatment. The fact that a patient signed an informed agreement does not bar a claim of medical negligence. The consent was supposedly to inform the patient about the risks of a particular treatment plan or procedure. The informed consent does not waive the right of the patient to be protected from harm caused by mistakes or negligence on the part of a doctor, nurse or other medical providers. The informed consent is intended to inform the patient that certain negative outcomes (bad outcomes) are possible, even if the doctor or medical staff has been reasonably prudent when providing the treatment. This does not mean that you cannot recover for damages and injuries caused by negligence on the part of doctors or medical staff. We expect them to be reasonable in their care.

PROVING MEDICAL NEGLIGENCE: Proving a medical negligence claim can be difficult. It requires knowledge and experience about the medical standard for the specific field of treatment. You also need to know the cause of your injury and the mechanism. A competent and experienced medical negligence lawyer who is familiar with handling medical negligence claims and has extensive knowledge of handling personal injury claims should be consulted first.

PROCEDURAL REQUIREMENT: In India, medical negligence is covered by the Consumer Protection Act. In certain cases, medical negligence could also be of a criminal nature. The victim must file a case with the Consumer Forum/Commission of appropriate jurisdiction in order to initiate the claim. Fortunately, the Consumer Forums are pro-consumers, and hence, even in cases like medical negligence which are fairly difficult to prove, relief may be granted based on the merits of the case.
 

What can a lawyer do for you if there is Medical Negligence?

In order to achieve justice, you need a lawyer who is experienced in medical negligence law. A medical negligence lawyer will be able to give you the best advice on the merits and best course of action for your case. A medical negligence attorney will help you understand your legal rights and remedies, as well as manage all the paperwork required to present your case. The lawyer will help you prepare the matter based on facts and circumstances in your case. He will also represent and argue for you. He/She can tell you whether you should file a criminal or civil case or both. If you are a doctor and you have been accused of medical negligence, a lawyer can help you defend yourself and guide you. Consult a lawyer to get legal advice and be guided on the road to justice. Use LawRato's  Ask a Free Question  service to receive free legal advice from experts

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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