AN ANALYSIS OF MEDICAL MALPRACTICES

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This Article is written by Avishka Saini, of 5^th Semester of Delhi Metropolitan Education, Noida, an intern under Legal Vidhiya

ABSTRACT :

Analysis of medical malpractice claims can provide information that will help raise the standard of care. However, employing medical malpractice claims in research poses methodological and epistemological questions about certain aspects of the courtroom procedure. Therefore, medical research should be cautious when dealing with charges of medical malpractice. This article emphasizes about the two tests of medical Negligence , And the harms and the situation of medical negligence in India and the Supreme court guidelines that would take medical malpractice claims into account are included in the article’s conclusion. And the legal implications are also discussed further.

Keywords: Medical negligence, medical professional, medical negligence, Traumatizing, unrecoverable state, degrading patient condition, legal framework.

INTRODUCTION:

The term “medical negligence” describes the conduct of a medical expert who violates professional norms and causes the death of a patient who was counting on the medical professional to save her or him. The most dishonorable act a medical professional may commit is medical carelessness, as it frequently results in the patient’s death. According to Black’s Law Dictionary, negligence is defined as either doing or not doing something that a reasonable and wise man would not do in light of those everyday considerations that normally govern human affairs.

Legally speaking, medical negligence is the violation of a duty of care that causes harm. Damages could be monetary, health-related, degrading the patient’s condition, traumatizing the patient, putting the patient in an unrecoverable state for the remainder of his or her life, etc. The concepts of English law have been passed down to India, and the majority of the country’s current legal framework is a direct result of this. In one of the case the position was amended in the year 2001 when such a test was abandoned by English courts which made the requirements of medical negligence stricter; however, the Indian courts continued to follow the principles laid down in Bolam’s case.

Origin of medical Evaluation :

Given the evolution of the medical community over time, there is no argument. From the more than 5000-year-old Ayurvedic medicine used in India to the allopathic medications developed in Germany about the year 1800, and ever since. In Hammurabi’s Code from ancient times, carelessness and neglect were severely punished. For example, if an incompetent surgeon caused someone to lose a life or limb, his hands were severed, and if the victim was a slave, the surgeon was required to compensate the family with another slave. There are references to medical carelessness in Manusmriti, which was viewed more as a crime than a tort. The Kautilya’s Arthashastra also considered that a doctor should be disciplined if a patient dies while receiving treatment as a result of negligence in the delivery of care. England experienced the development of the medical profession throughout the 19th century. However, the East India Company’s regulations first restricted medical professionals. Later, however, this idea was also used in India, and this can be seen as the beginning of modern-day medical practice in India. The Indian Medical Council Act, 1933 established the Medical Council of India as the first bodies regulating the medical community. The Nursing Council of India followed in 1947.

Test Bolam and Test of Bolitho:

Test Bolam:

In Bolam v. Friern Hospital Management Committee, 1957[1], the plaintiff, Mr. John Hector Bolam, admitted himself to the Friern hospital for

depression therapy, which led to the development of the Bolam’s test. The plaintiff fractured both of his hips because the doctor who was hired to treat him neglected to give him muscle-relaxant medications, and the plaintiff then sued the hospital, claiming the doctor was irresponsible in performing his duty. The plaintiff further claimed that if he had known the hazards, he wouldn’t have undergone therapy and that medical professionals had failed in their duty to protect the public. In this instance, the court did not hold the defendant accountable for their actions. The court determined that the doctors’ failure to disclose the procedure’s hazards was not a regular occurrence. Furthermore, the court believed that doctors and nurses did not treat Mr. Bolam negligently despite hearing testimony from experts who had differing opinions about the use of muscle relaxants. The majority of the experts were of the opinion that they would not have taken such a muscle relaxant. The wording of the judgment, ” If a doctor acts in accordance with the practice recognized as legitimate by a responsible body of medical professionals competent in that field, he is not guilty of negligence. It provides an understanding of the criteria to evaluate negligence. The other way around, just because there is a group of people who would hold a different opinion, a man is not neglectful if he is acting in accordance with such a practice. It was further stated that “when you have a circumstance that calls for the employment of some unique competence or talent. The standard of the everyday skilled individual exercising and claiming to possess that particular skill serves as the test. At the risk of being considered negligent, a guy might not have the highest level of expertise. It is a well-known law.

It is established law that if he uses the typical expertise of a regular competent individual using that particular art, that is sufficient. If a doctor follows a course of action that has been approved as proper by a responsible group of medical professionals knowledgeable in that field, that doctor is not acting negligently.[2]

Test of Bolitho

The case of Bolitho v. City and Hackney Health Authority (1997) [3], which questioned the theory of medical negligence used in the case of Bolam, led to the development of the Bolitho test. The case begins with Patrick Nigel Bolitho, a two-year-old boy, being taken to St. Bartholomew’s Hospital in 1984. Croup was the child’s primary health issue. Senior doctors first released him, but the following day the child derogated and needed more care. Croup was the child’s primary health issue. After being first released after top doctors assessed his condition, the boy deteriorated the next day. However, the infant’s health kept getting worse, and eventually, the child passed away but was recovered after 10 minutes. The infant suffered brain damage as a result of these incidents, died as a result, and his parents filed a complaint of conduct negligence at the hospital.

In this instance, the House of Lords determined that the presiding medical officer had acted negligently. The court considered the opinions of eight experts while evaluating whether the boy would have died had the doctor attended him. eight experts were consulted, and while five of them believed that they would have intubated the child, the other three believed that they would not have done so. As a result, the court did not find the senior doctor accused of carelessness. The court must be convinced that proponents of the body of medical thought relied upon can prove that such opinion has a logical basis. The judge will need to be satisfied before acknowledging a body of opinion as being responsible, reasonable, or respectable, especially in circumstances involving the weighing of risks against rewards as they so frequently do. Because when making their opinions, the experts focused on the issue of compared risks and advantages and came to a rational decision about it.

What qualifies as Negligence:

In Bolam’s case, the court ruled that negligence existed if an error would not have been made by a reasonably competent professional man claiming to possess the level and kind of expertise that the defendant claimed to possess while operating with ordinary care. On the other hand, if the mistake is one that a man of this caliber acting with ordinary care could have made, it is not negligence.

The following are necessary to prove medical malpractice against a doctor:

Duty of Care: If a doctor violated their duty of care to a patient or another person who has been hurt physically and/or mentally, they are guilty of medical malpractice and cannot continue to practice medicine.

Breach of Duty: The second factor is the demonstration that, despite owing the patient a duty of care, the doctor failed to uphold that obligation and violated his or her professional obligations.
Injury-causing: It must be proven that a doctor had a duty of care to the patient, failed to uphold that obligation, and that failure caused the patient’s harm or death.

Harms caused by medical Negligence:

Numerous negative effects of medical incompetence include:

Cost-increasing factors: include the need for extra medical care, additional surgeries, and other hospital charges such as increased therapy sessions and hospital admission costs.
Insurance exhaustion: As a result of the plaintiff seeking additional insurance assistance as a result of the plaintiff’s medical carelessness, his funds and health insurance are ultimately depleted.
It results in drawn-out court processes: Medical litigation is typically drawn-out and time-consuming for both parties, adding to the difficulty for the patient, his or her legal counsel, or family members.
Making the initial issue worse: By causing the patient to experience further difficulties and injuries, medical malpractice worsens the patient’s initial condition.
It causes traumas that last a lifetime: While recovering from an accident can be simple with the help of skilled medical professionals and effective medications, recovering from the trauma or shock, sufferings, agony, etc. brought to the patient who underwent an operation to better his or her conditions may take a lifetime.
Unnecessary medical procedures: When doctors commit medical malpractice, it often results in additional surgeries that are needed to correct or make up for it.

Healthcare malpractice in India:

According to Section 304A of the Indian Penal Code, 1860 (IPC), the primary penalty for causing a death by medical negligence is two years imprisonment, fine or both.

However, it will be a criminal crime if the medical professional uses gross negligence on his side. Not every act when a person goes to a medical professional to undertake a surgery or procedure, which involves reckless and the negligent act, falls within the ambit of Section 304 A of IPC.

Rules of the Indian Supreme Court:

In the 2005 case of

Jacob Mathew v. State of Punjab & Anr., the Supreme Court of India provided the following principles regarding medical malpractice:
A complaint won’t be taken seriously unless the individual making it presents the court with prima facie proof of the accused doctor’s carelessness in support of their claim.
Before taking legal action against the accused doctor, the appointed investigative officer is required to confer with a doctor employed by the government who, after applying Bolam’s test to the situation, must be fair and impartial in his assessment.
Unless an arrest is required for further investigation or until the investigating officer is satisfied that the accused doctor would not make himself available, the accused doctor shall not be routinely detained. [4]

CONCLUSION:

The worst behavior a medical professional may engage in is medical carelessness because most people want them to save lives, not take them or make them worse. Medical professionals’ conditions must be improved by raising the standard of their education and putting more emphasis on professional conduct education if India’s government and medical community hope to reduce the number of cases of medical negligence that result in pain, agony, and suffering for the patients.

The Indian judiciary must embrace innovative strategies to provide justice in cases of medical malpractice so that at the very least, a person’s suffering in court can be avoided. The court must impose severe penalties on individuals found guilty of medical negligence, as well as severe fines on the hospitals that hired the incompetent medical staff.

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