My friend's grandfather expired last week. He was 71. He was hale and hearty, up to the time when he started having chest pains. He underwent the usual tests, and they found blockage in his heart. He was advised to go for by-pass surgery. The surgery takes about 3 hours, give or take. They took 10 hours for the whole procedure, in her grandpa's case.The recovery period is usually a week. He was in the ICU for almost 20 days. Then, the doctors said he developed an infection, from which he never recovered. Slowly, his kidneys and lungs failed, and eventually, he passed away due to multiple organ failure. We believe that the hospital was negligent and caused the death by not doing the surgery properly. Do we have a case of medical negligence? What elements are needed to make a strong case of medical negligence?
The said doctor can be held responsible under:
A) CONSUMER PROTECTION ACT, 1986
B) CIVIL NEGLIGENCE; OR TORT
C) CRIMINAL NEGLIGENCE
A. Remedy under Consumer Protection Act, 1986:
At present the best remedy a patient can get is through a consumer forum petition. By treating medical profession as a service under the Consumer Protection Act it is now easier to get remedy for a negligent act of a doctor, which is timely and inexpensive, when compared to filing a civil or criminal suit or a writ petition. This is a very welcome development, as it ensures a remedy to aggrieved parties within 150 days from the file of complaint. The complaint can be filed under Section 2 of the Consumer Protection Act, 1986 which is concerned with deficiency of the medical service.
B. Criminal Negligence:
One can initiate criminal proceeding of Criminal negligence under Section 337(hurt), Section 338(grievous hurt) and Section 304A(culpable homicide not amounting to murder) of the Indian Penal Code.
In order to prosecute a medical practitioner one has to prove malicious intention or gross negligence i.e., a high degree of negligent conduct. Moreover to start a criminal proceeding against a medical practitioner there has to be a prima facie evidence in the form of a credible opinion from a competent doctor, preferably a government doctor in the same field of medicine supporting the charges of rash and negligent act. The liability of a doctor always depends on the circumstances of a particular case.
So something more than a mere negligence has to be proved in order to prosecute a doctor. In order to establish criminal negligence in diagnosis or treatment on the part of the doctors he has to be proved guilty of such failure as no doctor of ordinary skill would have been guilty of, if he was acting with reasonable care. It is a matter beyond mere compensation. It involves an utter disregard to the life and safety of others and a conduct deserving of punishment where the degree of negligence is much higher than that of a civil negligence case.
C. Remedy under Tort law:
Remedy is also available in tort law. Like all negligence claims under tort law, it requires the satisfaction of three criteria – a duty of care, a breach of duty and damages. However, in the specific context of the medical profession, the components duty of care and standard of care are assessed as per the professional standards of the medical community.
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