• Legis Scriptor


Authored by Sweta Upadhyay

Keywords: - Medical negligence, medical malpractice, medicine, Unnatural death, Fundamental Rights.

Abstract: - Medical negligence, is one among the vital issues in India. Health may be a person’s real wealth. During this article, I aim to understand the legal provision associated with Medical Negligence in India which protects our real wealth. The medical community is governed by legislation and by Indian legal code 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338, a code of ethics and etiquette. Contain the law of medical malpractice in India. Finally, talks about Indian Constitution which protects our fundamental Rights to Health.

Introduction: - Medical Professions is one among the simplest professionals within the world. Doctors are compared as a God. They devote their life for human society this noble profession is quite a blessing for mankind. The doctors are comparing as a God because they protest our lives, protect us from disease. They devote their life for development and help of mankind.

Kevin Alan Lee said, “Being in such a profession where sick, ill and sufferers are your customers who think of you because the almighty, an absolute amount of care is predicted.” As we all know human aren’t perfect they could make some mistakes or negligence. The Doctors and Hospitals are expected to a supply proper care with all the knowledge and skill. They're going not to do any harm to the patient in any situation either due to their carelessness, negligence. Let's know the meaning of Negligence in law.

Negligence: The essential element of negligence, are as fallow: Duty Breach, and Resulting damage.

i. There is an existence of a duty to require care, which is owed by the defendant to the complainant.

ii. Their may is a failure to take care of that standard of care, prescribed by the law, which causes commit a breach of such duty; and

iii. Damage, which is caused by the breach of such duty, has been suffered by the complainant. The term negligence simply means fail to require proper care of their duty. We were conversant in the term negligence, Let’s know the meaning of the term “ Medical Negligence”.

Medical Negligence: in law, the failure to satisfy a typical of behaviour established to guard to society against unreasonable risk. Negligence is the cornerstone of tort liability and a key believe most personal injury and property-damage trials.

Essential element of Medical Negligence: Winfield stated that a negligent act consists of three main components. They are,

i. Existence of legal duty

ii. Breach of legal duty

iii. Damage caused by the breach

All times, medical professionals are highly expected to use his special knowledge and skill in the most appropriate manner to protect the interest of the patient. Hence, the questions arise when the Medical Negligence arises? It at the point of time “when the saviour doesn’t remain the saviour but becomes the devil himself.” If our saviour doesn't remain saviour, how we protect our selves and what are the legal provision are there in India.

Legal Provision related to Medical Negligence:

Right to Health under Indian Constitution:-The Constitution of India protects the elemental rights of their citizen. In India, the judiciary is playing a serious role to recognizing right to health under Article 21st of Chapter III of Constitution of India as a neighbourhood of fundamental rights.

Negligence as a Tort or Civil law: A tort may be a tort. Medical Professionals are bound by the Legal Duties to worry the Patients. The patients have a right to say Compensation under civil law or torts law. There is any breach of the duty of care while treating the Patients. Even the hospital are vicariously responsible for any wrong committed bandy the hospital staff and are susceptible to pay damages within the sort of compensation. In Mr M Ramesh Reddy v. State of Andhra Pradesh[1], the court held that the hospital authorities were fail to take care of a clean bathroom, due to which an obstetrics patient fell within the bathroom and died therein. The patient died due to the negligence partially of hospital staff. The court awarded amount of compensation against the hospital was Rs. 1 Lac.

Negligence as a Crime: the elemental principle of legal code is “guilty mind.” It hooked in to the degree or amount of negligence. Whether there's a guilty mind. However, if the weather just like the malafied intention or criminal motive is established then it makes him liable under the legal code.

Provisions under criminal law:

According to Section 304-A of the Indian legal code, 1860, if an individual commits a rash or negligent act which amounts to culpable homicide then the person are going to be punished with imprisonment for a term which can reach two years or with fine or both.

According to Section 337 of the Indian legal code, 1860, if an individual commits a rash or negligent act thanks to which human life or personal safety of others gets threatened. The person is going to be punished with imprisonment for a term which can reach six months or with fine which can reach five hundred rupees or both.

According to Section 338 of the Indian legal code, 1860, if an individual commits a rash or negligent act thanks to which human life or personal safety of others gets threatened. The person is going to be punished with imprisonment for a term which can reach two years or with fine which can reach one thousand rupees or both. Defences available for Medical Professionals:

The Doctor and therefore, the Medical Professionals are protected with the section 80, 81, 88 of the Indian legal code 1860. Courts have repeatedly held that the burden of proving culpable negligence rests heavily on the person claiming it. Legal code requires a guilty mind.

Negligence under Consumer Protection Legislation: The Supreme Court in Indian Medical Association vs. V.P. Shanthan & Ors.[2] The Court held that, medical community and services are brought under the purview of the buyer Protection Act 1986. In this case, the court discussed the important question of medical negligence whether a medical man might be said to be services under Section 2(1) (o) of the buyer Protection Act, 1986. Under consumer protection laws, medical negligence or medical malpractice is another sort of deficiency in commission.

Therefore, the laws imposing liability on medical practitioners to maximize possibility protection to the Patients.

Recent Supreme Court Judgement: - This this sort of professional negligence needs more attention of legislation and Strict application of the law is required. The Supreme Court of India came with the top number of landmark judgement in medical negligence cases.

Within the case Dr.Kunal Saha vs. Dr.Sukumar Mukherjee And Ors.[3] This case is popularly referred to as Anuradha Saha Case. During this case, the petitioner’s wife was affected by drug allergy and therefore the doctors prescribing her medicine, which ultimately aggravated her condition and which resulted death of the patient. The court held that the doctor responsible for medical negligence and awarded compensation amounting to Rs. 6.08 crore.

In Juggan Khan v. State of Madhya Pradesh,[4] the Doctor who was a registered Homoeopathic medical practitioner. A woman went to him for treatment of guinea worms, after seeing an advertisement. She started taking the prescribed medicine and she started feeling restless and even after the administration of some antidotes, she died in the evening. The Doctor was convicted for murder under Section 302 of the IPC. The court held that it was a negligent act to prescribe poisonous medicines without proper checking and knowledge of the same.

In Kurban Hussein Mohamedalli Rangawalla v State of Maharashtra[5] “To impose criminal liability under Section 304-A, Indian legal code, it's necessary that the death should are the direct results of a rash and negligent act of the accused, which act must be the proximate and efficient cause without the intervention of another's negligence. It's not enough that it's going to are the cause sine qua non.

Conclusion: Doctor play important role in The Human society. In such pandemic situation we all are witness the role of the Doctor. The whole world goes through this covit19 pandemic; the whole world is lock during this instance. The doctors came forward ahead to protect humanity. Medical Professions is the noblest professions. Many doctors even the specialist sometimes fails to require proper care while treating patients. The negligence of the Medical Professionals led to breach of duty which causes damages to the patients which can are avoided or sometimes even the death of the patients.





Foot Notes :

[1] ( 1975) 36, STC 439 AP [2] ( 1995) SCC (6) 651 [3] 21stOctober, 2011 [4] (1965) SCR, (1) 14

[5] (1965),SCR,(2) 622