Medical Negligence cases in India and the reforms in Indian laws

Medical Negligence cases in India and the reforms in Indian laws

1. Medical Negligence

2. DEFINITION o Medical negligence is the act or omission in treatment of a patient by a medical professional, which deviates from the accepted medical standard of care. medical standard of care o Medical negligence is often confused for medical malpractice, when in fact, negligence is only one aspect of a meritorious medical malpractice claim.

3. Medical negligence and Bharatiya Nyaya Sanhita The Bharatiya Nyaya Sanhita (BNS) 2023 adds a new clause to the penal code that addresses doctors in particular when it comes to the punishment for causing death through medical negligence. It is important to note that doctors are not specifically covered by Section 304A of the IPC, which punishes for causing death through negligence.

4. . While Sanhita increases the penalty for death caused by negligence to a maximum of 10 years of imprisonment in certain circumstances, the punishment for doctors in such cases is limited to a maximum of 2 years of imprisonment. Section 106 of BNS says … if such act is done by a registered medical practitioner while performing a medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine

5. EXPLANATION o In terms of medical malpractice tort law, medical negligence is usually the basis for a lawsuit demanding compensation for an injury caused a patient by a doctor or other medical professional. While negligence on it's own does not merit a medical malpractice claim, compensation for an injury o Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a way that deviates from the accepted medical standard of care. o If a doctor breaks the rules regarding how to treat a patient, and does something that is "against the rules", then that doctor has failed to perform is duty, and is said to be negligent.

6. Medical Malpractice • Professional liability for personal injury • When physician agrees to diagnose & treat a patient, assumes a duty of care toward that patient • Medical Negligence: failure to meet that duty of care To provide the standard of care • May include criminal negligence, malicious intent, or strict liability • May also be subject to disciplinary sanctions By State Medical Boards

7. Types and Examples of Medical Negligence a) Civil (minor personal injury and property damage) a) Criminal (results in death where there was no intention of injury)

8. Medical negligence can occur in an infinite number of ways, but many instances of medical negligence can be grouped into one of the following categories:  Misdiagnosis  Failure to Timely  Diagnose Surgical  Error Failure to Follow Up with Treatment  Failure to Treat in a Timely Manner  Anesthesia Error  Medication or Prescription Error

9. ANKUR ARORA MURDER CASE

10. MISDIAGNOSIS • The first step after admittance to a hospital, medical clinic, emergency room, dental office or any other professional medical establishment is diagnosis. Correctly diagnosing symptoms is critical to proving medical care to any patient, however sometimes an error in diagnosis can occur in cases where symptoms may not be readily apparent or telling.

11. Common types of misdiagnosis include: Failure to diagnosis cancer Misdiagnosis of symptoms of impending heart attack Misdiagnosis of stroke etc

12. Delayed Diagnosis • A delayed diagnosis can be a form of medical negligence if another doctor would have reasonably diagnosed the same conditions in a timely fashion. A delay in diagnosis can lead to an undue injury to the patient if the illness or injury is allowed to progress rather than being treated.

13. Some more serious examples are: Delay diagnosis of Heart Attack Delay diagnosis of Cancer Failure to timely diagnosis Appendicitis Delay in diagnosis and treatment of Stroke etc

14. SURGICAL ERRORS • Medical negligence during a surgical procedure can often result in further surgeries, infection and sepsis, internal organ damages, immune system failure and even death. • Surgical procedures require an enormous level of skill, and even the slightest mistakes can have profound effects on the patients • Surgical errors can occurs in a variety of forms ranging from wrong site surgery, unintentional lacerations of an internal organ, uncontrolled blood loss, perforation of an organ or a foreign object being left in the patients body.

15. WRONG SITE SURGERY • Wrong site surgery is type of surgical errors, usually involving a mis communication or errors in hospital records which leads to a surgeon operating on the wrong organ or exteral appendage. • In some of the worst cases of wrong site surgeris , patients requiring amputation of an arm or leg will have the wrong a one amputated, which results in the loss of both appendags instead of just one.

16. UNINTENTIONAL LACERATION or PERFORATION • One of the most dangerous risks in any surgical procedure is that of cutting, lacerating or perforating an artery, organ or vessel. There are several ways a surgeon can make a potentially fatal mistake during an operation. • It is possible to perforate a bowel or veesl which may go unnoticed causing bile to leak into the body cavity.

17. Unnecessary Surgery Unneccessary surgery is often related to a misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risk. Alternatively sometimes surgery is choosen over more conventional treatments for their expendlency and case compared to other altenative . Some of the most common unnecessary surgical procedure include: Pcemaker implant Coronary bypass surgery Hysterectomy Ceasearian section While there are certainly cases where these surgeries are necessary and save lives, many times the patients conditions does not warrant such dramatic and invasive procedures.

18. Needless surgery Is often related to a misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks.

19. Errors in anesthesia Anesthesia is the risky part of any major medical operation, and requires a specialist, an anesthesiologist, to administer and monitor the effect on the patient. Anesthesia malpractice can happen either during the pre-operation medical review, or during the procedure itself.  

20. Childbirth malpractice • Childbirth is a difficult event for the new born child, and even worse, if not handled properly by the doctor and nurses. • Instances of medical negligence during childbirth can take place in several ways, including failure to perform a c-section, mishandling of a difficult birth, complications with induced labor, misdiagnosis of newborn medical condition or failure to monitor fetal vital signs. • Any variation from the established medical standard of care is considered to be medical negligence, and if it leads uncalled-for injury to a patient the doctor, staff and/or hospital may be held liable.

21. Negligence in patient treatment follow up Once a course of treatment for illness or injury has been chosen, it is critical that the doctors follow up regularly to keep abreast of the performance of the treatment. Often times,a nurse will be called upon to help administer treatment, but is not qualifed to make medical decisions regarding continuation, cessation or adjustment of the treatment plan. If the doctor orders a treatment and then allows it to go on without regular follow up, this can be a form of medical negligence.If the treatments causes any side effects or other damage to the patient, the doctor may be held liable.

22. Medical Negligence in General While medical negligence can occurs in many different ways, the general themes is that a medical professional deviates from the level of care that is required by his or her duty to patients. Any deviation from the accepted medical standards of care is considered to be medical negligence, and if it causes undue injury to a patient the doctor, staff and / hoapital may be held liable.

23. TYPES OF NEGLIGENCE 1. Civil Negligence. 2. Contributory Negligence. 3. Third Party Negligence. 4. Criminal Negligence.

24. CIVIL NEGLIGENCE o Failure to exercise reasonable degree of care and skill on part of doctor in the treatment of and skill on part of doctor in the treatment of patient and as a result, health of patient and as a result, health of patient suffers. The negligent act must be proved bysuffers . The negligent act must be proved by claimant. For example: • Extraction of healthy teeth. • Failure to give ATT. • Failure to take X-Ray in case of injury.

25. CONTRIBUTORY NEGLIGENCE  In this, patient also contributes to the damage caused by negligent act of doctor.  The award of damages will be reduced accordingly.  Burden damages will be reduced accordingly.  Burden of proof lies on the doctor of proof lies on the doctor. For example: Patient tampers with his dressing and induces infection or removes a plaster cast or ignores instructions to return for further treatment / follow up.

26. THIRD PARTY NEGLIGENCE • Negligence of paramedical staff, nurses and students working under supervision of a doctor. • The doctor is held equally responsible doctor. • The doctor is held equally responsible by virtue of by virtue of doctrine of “respondent superior ”doctrine of (let the master answer) or “caption of the ship” now a days .doctrine of “borrowed servant”

27. For example: Failure to check swabs, paralysis during Failure to check swabs, paralysis during spinal anesthesia or failure to check drug and spinal anesthesia or failure to check drug and its expiry

28. CRIMINAL NEGLIGENCE  It is described as gross ignorance, gross carelessness or gross neglect for the life carelessness or gross neglect for the life which may amount to criminal offence.  It reflects disregard for life and safety of others. reflects disregard for life and safety of others. Mere monitory compensation is not sufficient, wrong doer should also be punished.  Cases wrong doer should also be punished.  Cases are dealt in criminal courts.

29. For example: o Injecting anesthetic, in fatal dose. o Amputation of wrong finger, wrong limb, wrong organ. o Operation on wrong patient.

30. Elements of a Cause of Action in Negligence (Malpractice) 1. Duty of Care (towards a plaintiff) 2. Negligent Breach of Duty (on the part of the defendant 3. Causation (between the breach and the harm 4. Damages (injury or harm as a consequence of the breach)

31. When the Malpractice occurs Medical malpractice occurs when a health-care provider deviates from the recognized “standard of care” in the treatment of a patient. The “standard of care” is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances. In essence, it boils down to whether the provider was negligent.

32. India takes on Consumer Protection Act 1986 After the Consumer Protection Act, 1986, has come into force some patients have filed legal cases against doctors, have established that the doctors were negligent in their medical service, and have claimed and received compensation. As a result, a number of legal decisions have been made on what constitutes negligence and what is required to prove it.

33. What Negligence Means to patient In medical negligence cases it is the duty of the patient or his/her relatives to establish that: 1. There was a duty which the medical practitioner owed to the patient; 2. There was a breach of duty; 3. The breach resulted in injury to the patient; 4. The injury resulted in causing damages.

34. Patients too Should support his/her allegations  A person who alleges negligent medical malpractice must prove four elements: (1) a duty of care was owed by the physician; (2) the physician violated the applicable standard of care; (3) the person suffered a compensable injury; and (4) the injury was caused in fact and proximately caused by the substandard conduct. The burden of proving these elements is on the plaintiff in a malpractice lawsuit