INTRODUCTION
The conception of medical negligence refers to the malpractice of a medical professional who fails to meet the norms of his/ her profession which results in the death of a case who was awaiting the medical professional to save her/ her life. Medical negligence is the most opprobrious act a medical professional can conduct because this negligence utmost of the time results in the death of the case.
According to Black’s Law wordbook, negligence refers to the elision to do commodity which a reasonable man, guided by those ordinary considerations which naturally regulate mortal affairs, would do or the doing of commodity which a reasonable and prudent man would not do. In Legal terms, Medical negligence refers to a breach of the duty of the care that leads to harm or injury.
The damages may be in financial terms, health terms, derogating the condition of the case, causing trauma to the case, leaving the case in irredeemable condition for the rest of his/ her life,etc. India has inherited the principles of English law and utmost of the contemporary laws prevailing in India are the direct consequence of the heritage of the laws from English law. One similar principle is the case of Bolam. Friern Hospital Management Committee( 1957). still, the position was amended in the time 2001 when such a test was abandoned by English courts which made the conditions of medical negligence stricter; still, the Indian courts continued to follow the principles laid down in Bolam’s case.
Acceptance by Supreme Court
It is accepted by the Supreme Court , in the same case that the principal relating to medical negligence is called the ‘BOLAM Rule ’, which says that “ a medical negligence arises from an act of elision by a medical guru, which a nicely competent and careful guru would not have committed. ” still, the law doesn’t define what” act of elision” or” nicely competent and careful guru” mean, say Mohapatra. So, in reference to aged cases, the ultimate is frequently taken to be someone who has a medical degree. Areeb Uddin Ahmed, a Delhi- grounded advocate, tells FIT,” To establish a case of medical negligence, the ensuing rudiments are generally considered duty of care, breach of duty, occasion, injury, or detriment.”
Examples of medical negligence might include Failure to diagnose, Incorrect diagnosis, Deferred diagnosis, Inaccurate surgery, Ignoring the history of patients, Long term negligent treatment, Childbirth and labour malpractice, Needless surgery, Erroneous administration of anaesthesia
In Medical negligence cases, burden of proof lies on the patient.
Medical Negligence in India
Death by medical negligence is primarily penalized under Section 304A of Indian Penal Code, 1860,( IPC), where discipline for causing death by rash and careless act is reserved for a term which may extend up to 2 times, or with fine, or both. Not every act where a person goes to a medical professional to suffer a surgery or procedure, which involves rash and the careless act falls within the dimension of Section 304 A of IPC still, it’ll be a felonious act if the medical professional engagements gross lack on his part. As held in Kurban Hussein Mohammed Ali Vs. State of Maharashtra, “ To put felonious liability under Section 304A of IPC, it’s necessary that the death should have been the direct result of a rash and careless act of the indicted, and that act must be the proximate and effective cause without the intervention of another’s negligence. ”
In the case of V. Kishan Raov. Nikhil Super Specialty Hospital( 2010), the complainant, who was also an officer in the malaria department, filed a complaint against the sanitarium for careless conduct in treating his woman regarding the wrong treatment of his woman the complainant contended that the sanitarium was careless in treating his woman with typhoid fever rather of malaria fever due to the negligence of specifics by the workers of the sanitarium. The complainant, in this case, got a compensation of rupees.
Guidelines of Supreme Court of India
In the case of Jacob Mathew Vs. State of Punjab and Anr., Supreme Court gave certain guidelines concerning medical negligence. A complaint may not be entertained unless the person giving similar complaint produces prima facie substantiation before the court to support his/ her claim of negligence of the indicted croaker. The appointed probing officer must, before initiating proceedings against the indicted croaker in government services who must be unprejudiced and unprejudiced in giving his opinion after applying Bolam’s test to the case.
The indicted croake shall not be arrested routinely unless similar arrest is necessary for farther disquisition or until the probing officer, if satisfied that the croaker would not make himself available to face the execution, may be arrested.
Conclusion
Medical negligence is the worst type of conduct by a medical professional because people generally anticipate such a person to save the life of others and not take or make it worse. Cases of medical negligence occur daily, causing significant pain, distress and suffering to those affected. and to reduce similar misconduct, the government of India and its medical fraternity must ameliorate the conditions of its medical interpreters by perfecting the education quality and emphasising professional conduct education. The conception of medical negligence is well established in India still the Indian bar still follows Bolam’s test which is outdated and vague and thus new styles to determine medical negligence must be espoused by the Indian bar. To deliver justice in cases of medical negligence, the Indian bar must borrow new approaches so that at least the mournings of a person in courts can be averted. The court must award heavy corrections for those set up shamefaced of medical negligence and also put heavy forfeitures on hospitals that have employed similar careless professionals.
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