Medical malpractice and negligence is a special kind of personal injury case brought against hospitals, Doctors, nurses or other medical professionals. Medical negligence arises from an act or omission by a medical practitioner, which no reasonably competent and careful practitioner would have committed.
Those who suffer from a medical malpractice injury may be able to hold the medical care provider(s) responsible for that injury liable under the special rules that apply to this type of professional negligence.
The Supreme Court decision in Indian Medical Association v VP Shantha brought the medical profession within the ambit of a ‘service’ as defined in the Consumer Protection Act, 1986. This transformed the relationship between patients and medical professionals as contractual. Patients who had sustained injuries in the course of treatment could now sue doctors in ‘procedure-free’ consumer protection courts for compensation.
The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients’ charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act.
Where the Consumer Protection Act ends, the law of torts takes over and protects the interests of patients. This applies even if medical professionals provide free services.
The onus is on the patient to prove that the doctor was negligent and that the injury was a consequence of the doctor’s negligence. Such cases of negligence may include transfusion of blood of incorrect blood groups, leaving a mop in the patient’s abdomen after operating, unsuccessful sterilisation resulting in the birth of a child etc.
A doctor can be punished under Section 304A of the Indian Penal Code (IPC) for causing death by a rash or negligent act, say in a case where the death of a patient is caused during operation by a doctor not qualified to operate. The standard of negligence required to be proved against a doctor in cases of criminal negligence (especially that under Section 304A of the IPC) should be so high that it can be described as ‘gross negligence’ or ‘recklessness’, not merely lack of necessary care. Criminal liability will not be attracted if the patient dies due to an error in judgment or accident.
A doctor can also be punished for causing hurt or grievous hurt under the IPC. However, Sections 87, 88, 89 and 92 of the IPC provide immunity from criminal prosecutions to doctors who act in good faith and for the patient’s benefit.