Medical Negligence and its devastating role during pandemic

Introduction

In these pandemic times, there is an increasing consciousness of medical negligence in India. Hospital administration is constantly faced with concerns regarding their services, levels of clinical integrity and the suitability of their rehabilitation and medical treatments. In India, the medical community and profession are acknowledged to be one of the most prestigious and respectful occupations.

Even in the times of Covid-19, when everyone else is trapped inside their homes, it is the doctors who have taken care of and are helping people with the right medication and drugs. The importance of doctors has reached to an extent that people who are suffering from the coronavirus have started considering doctors as their God. However, every coin has two sides. There are some doctors, who treat their patients generously, but some of them are opportunistic too and this quality of them becomes the reason for the death of many patients.

Medical Negligence

Negligence is the breach of a legal duty to care. It means negligence of treatment in a matter in which the law needs care. The infringement of this obligation grants the victim the right to bring a suit against misconduct. Doctors who give medical advice and care essentially claim that they have the expertise and experience to do so, also the capacity to determine whether to take that patient or not, recommend the treatment, and provide the treatment. However, the Apex Court in the case of State of Haryana v. Smt Santra held that every doctor “has a duty to act with a reasonable degree of care and skill”.

There are many important aspects which need to be taken into consideration while approaching the legal authorities for the case of medical negligence. Firstly, if the doctors are providing services free of cost or at a governmental hospital or at a non-governmental health care center, they cannot be held liable as it would not be covered under Section 2(1)(0) of the Consumer Protection Act, 1986 which defines ‘service’. Secondly, the medical assistance provided by private practitioners or private doctors falls within the scope of ‘service’ and deficiency in such services will give aggrieved party chance to initiate the proceedings in the consumer forum. Moreover, a doctor may be held liable for negligence, if it has been proved that he has acted without taking reasonable care which a professional practitioner owes and comes within the purview of his skills.

In certain circumstances, the victim can depend on the principle of res ipsa loquituror “the thing speaks for itself.” In certain cases, no evidence of fault is needed after the accident itself. The principle of res ipsa loquitur arises only if there is evidence that the incident was unexpected, that the event might not have resulted without mistakes and lapses on the part of the medical practitioner or doctor, and that the facts prove that only the doctor and not any other person was negligent.

Criminal Negligence

Every act of a medical practitioner and the death of the person do not amount to criminal negligence. According to Section 304A of the Indian Penal Code, whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine, or with both. Therefore, the test of reasonable care is to be determined and the act of a professional doctor should match with his understanding of that particular situation.

The Supreme Court in the Santra case observed that liability in civil law is based to the extent of damages incurred and in criminal law, the amount and degree of negligence is a consideration in the assessment of liability. However, other factors must be identified to assess the criminal liability of each particular case, the reason for the crime, the severity of the offense, and the character of the perpetrator. The burden of proof of incompetence, negligence, or deficiency usually rests with the claimant or plaintiff. The legislation demands a higher level of proof than otherwise to justify a claim of negligence on the part of a practitioner or a doctor.

There are certain defenses available for the doctors to waive off their criminal liability under Indian Penal Code. Section 80 provides for an accident in doing a lawful act: nothing is an offense that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. And, under Section 88: a person cannot be accused of an offense if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.

Therefore, to hold a doctor liable for negligence, there needs to be prima facie evidence to prove that the doctor acted in an abnormal way. This evidence can be in the form of a report of any other doctor or the credible opinion of any competent doctor preferably of a government doctor. These guidelines were laid down by the Supreme Court in Jacob Mathew v. State of Punjab where the court directed the central government to strictly abide by it.

Medical Negligence during Pandemic 

The situation of Covid-19 became very difficult for hospitals and health care centers in India. This is because the need for assistance and facilities rose drastically, but the fulfillment of it was not proportionate to the demand. This led to increase in the cases of the negligent deaths of many patients who probably could have recovered in a normal situation. Moreover, the treatment of this virus is not yet specified or laid down by the WHO, so every medical practitioner or doctor started treating the patient in their own possible way with the limited resources available to them. This ambiguity in the treatment can sometimes lead to the death of a person and increases the perception of medical negligence.

We have to understand the principle of Bolam which was laid down in Bolam v. Friern Barnet HMC, where the court held that doctor can escape the liability of negligence, if he can prove that other medical practitioners could have acted in the same way as he had. In these times, the Bolam principle would fail because there is not a definite treatment for coronavirus and hence, every practitioner shall have their own way of treatment and doctors cannot escape the liability of negligence. However, the consent of the patient is also very important in such cases, where informed consent of patient will help in waiving off the charges of negligence.

There are several cases where the doctors had deprived the patients of ventilators and ICU which were necessary for their survival; this led to the rise in the cases of medical negligence in these times. As a result, many doctors were suspended and received notice from Indian Medical Association. Also, there are certain cases where the patient is suffering from some other disease and due to this pandemic he has been given the treatment of Covid-19 which eventually lead to the death of the patient. Many hospitals refused to even admit people with the problems and ailments other than Covid-19.

Let’s take a look at live examples which took place during this period: In Bengaluru, an old man aged 95 lost his life due to apathy of the hospitals for not admitting him into the hospitals. He was suffering from major fractures as he was a veteran of World War II but was not able to get treatment in any of the hospitals, however he was shunted between eight different hospitals and was left on road for 11 hours without food. In New Delhi, a nurse was exposed to the corona infection while attending the patients at Guru Teg Bahadur Hospital and she had to wait for a whole day after she was tested positive. Her husband also reported to the authorities about the negligence and after one day she got admitted into Rajiv Gandhi Super Specialty Hospital. There many more cases which are not yet reported and it will continue to spike the death numbers if the attention of higher authorities is not sensitized towards it.

The Supreme Court is also actively looking into urgent matters of medical negligence through video conferencing and online modes. These times have acted positively for the doctors who are serving their patients generously and negatively for the doctors who just understand the patients as their money machine. Therefore, doctors should think about their future and serve the patients in a prudent way which a professional practitioner is expected to and makes this new normal happy by saving the lives of patients.

References: The Hindu, The New Indian Express, NDTV, The Times of India