The Right to Health comes under Article 21 of the Indian Constitution which indicates that health is a fundamental right of all the citizens in India. Hence citizens are entitled to file a case against a doctor or a medical professional in case of medical negligence. However, sometimes these cases are frivolous and are not properly backed with evidence and can thus tarnish a doctor’s reputation.
MedPiper Technologies and JournoMed had conducted a webinar on 8th January, 2022 titled “Understanding Medico-Legal Complications in India” where expert speaker, Dr. AL Meenakshi Sundaram, MDDA, spoke about the various facets of medico-legal cases. Dr. Sundaram is the Dean at the Government Medical College, Perambulur, Tamil Nadu. He discussed medico-legal complications from both medical and legal perspectives using examples of past medico-legal disputes.
Professionals are legally tried in a different way compared to non-professionals in a field and this also applies to the medical field. This is because there is no guarantee regarding the results and only a professional can provide the assurance that they are skilled enough to provide the outcomes. Hence legal actions are to be taken in the event of professional negligence.
However, there is no clear Law of Negligence, especially in the medical context, in the Indian Penal Code. Any kind of judgement regarding medical negligence depends on the judge dealing with the case. Due to this, the proceedings and decision varies from one judge to another, who are, in most cases, not from a medical background.
The Supreme Court of India states that (from Para-10 of Jacob Mathew vs the State of Punjab, 2005) for medical negligence to become actionable, it should contain three essential components; the doctor in question should have ‘breached’ their requisite ‘duty’, giving rise to ‘resultant damage’. According to section 304A of the Indian Penal Code, to prosecute a rash and negligent case, there should be ‘gross’ damage. The word ‘gross’ is also open to interpretation and it depends on the judge. Hence the judgement differs from case to case.
The main reasons why a doctor should be held for negligence includes
- The professionals claimed to have the requisite skills which they do not possess.
- The professional did not exercise competence despite having the skills.
The court demands ‘an average skillset of an average doctor’ i.e. the skills exercised by an average doctor of average calibre (not to compare with high or low ranking doctors). The court also takes into consideration the inadequacies of the system, the nature of human psychology and the complexities of the human body while dealing with cases against doctors.
If there is more than one line of treatment, the doctor is at a discretion to choose whichever they deem fit and they cannot be held for negligence on those grounds. The court also states that a case of occupational negligence is different to that of professional negligence and if the doctor follows a practice approved by the established medical fraternities, they cannot be tried for medical negligence. To indicate negligence there should be enough evidence so that the case speaks for itself (‘res ipsa loquitur’) and the responsibility of obtaining that evidence falls on the plaintiff. In order to charge a doctor under Criminal Law, the plaintiff should consult with a medical body to confirm negligence.
Medical negligence on the ground of consent
Dr. Sundaram outlines the following points regarding consent for medical procedures
- Consent forms should be signed by both the assigned doctor and the patient.
- The consent form should be a clear detailed form and not a blank form.
- Oral consent is not consent in the current day scenario.
- Consent must be procedure specific.
- Consent should be taken for blood transfusion procedures.
- Name of the anesthesiologist has to be mentioned on the consent form.
- Getting consent from the spouse or next of kin (not authorised) of the patient is not consent.
- Implied consent is applicable in emergency situations such as severe trauma leading to extensive injury and the patient being unconscious. Once the emergent nature of the surgery/ procedure is taken care of, informed consent should be routinely taken.
- Consent given for diagnostic procedure should not be considered as consent for therapeutic treatment.
- Medical case sheets need not be given to the patient, however it is necessary to give a detailed discharge summary.
- The doctor should provide adequate information regarding the procedure to the patient and if the patient refuses treatment it should be in written format not oral or else the doctor can be charged for battery.
The medical professionals should keep a record of the procedures they have done to produce them as proof in a court of law. Often, an expert opinion is sought to explain the technical terms of the medical case to the common man. The expert witnesses help to assist the judicial tribune to decide if the practitioners are to be held for negligence. The judgement should thus be delivered with the mixed verdict of the fact and the law.
Dr. Sundaram suggests that in order to avoid litigation, doctors must communicate with the patient, document what is being done, communicate the documentation, document the communication and preserve the documents. He also states that medico-legal proceedings should be included as a part of the curriculum in all the medical education and continuous medical education programmes. This will equip the doctors on how to handle any kind of legal action taken against them and thus not be afraid, but aware.
Note: The information in the article is based on the insights from the speaker. Anyone who wishes to seek any kind of legal advice should consult with a professional from the respective field.