THE EPANDING MEDICAL NEGLIGENCE AND HEALTH CARE:A few legal prescriptionsBy;Prafulla Maharana
ORISSABARTA:Safety of patients from incompetent and negligent doctors and safety of doctors from undue harassment from unscrupulous litigants has been a perennial problem faced by the Medical jurisprudence.
A failure to exercise reasonable skill care in diagnosis and treatment as per the available medical practice and procedure comes under medical negligence.
Medical negligence attracts both civil and criminal liability, however criminal liability is limited to gross negligence. Section 304-A of the Indian Penal Code provides that anybody who causes death by rash and negligent act amounting to culpable homicide not amounting to murder will be punished for criminal negligence.
Many international treaties and declarations inter alia, the convention on the rights of the Child 1989 and the international covenant on Economic, Social and Cultural Rights, 1966 recognised the right to health.
World Health Organsiation defines “Health” as a state of complete physical mental and social well being and not merely the absence of disease or infirmity. This definition covers widest possible ramification of concept of Health Emphasis in the definition is on well being rather than on absence of disease. It is also curious that the definition is inclusive of social well being.
Right to Health is not enumerated fundamental right in Part-III of the Constitution. However the judiciary in various judgments has held it to be fundamental right under Article 21. However Article 24 and 25 have references to Health Directive principles of state policy which refer to Right to Health in few provisions directly and in few provisions indirectly are 39 (e) 39 (F), 41, 42, 47, 48-A. The directive principles are the ideals which the Government must keep in mind while they formulate policy or pass a law. Though the Directive Principles as such are not enforceable by the Courts like fundamental rights, the State is expected at Securign these directives though legislative or administrative measures. The idea of welfare state can be achieved if the state endeavours to implement them with a sense of moral duty. Article 51-A (g) a fundamental duty has indirect reference to Right to Health, Article 24 3-G read with Entries 23 and 26 of XIth schedule and Article 243-W read with Entries 6 and 9 of XIIth schedule are also relevant provision for Right to Health on the VIIth Schedule Entries 28 and 81 in the Union list entries 6th & 8th in State list Entries 16, 18, 19, 23, 24, 26 and 29 also relate to various aspects of health.
A mere misjudgment or error in medical treatment by itself would not be decisive of negligence towards the patient. As long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patients still does not survive or suffer a permanent ailment it would be difficult to hold the doctor to be guilty of negligence.
Medical profession being one of the noblest professions in the world has a significant role in health care and promotion of life. Doctors and the personnel involved in promotion of health and well-being are considered next to God. There in order to translate the constitutional mandate of right to health into a reality. The Apex Court in dynamic, interpretation of Article 21 has repeatedly insisted that the personnel involved in medical profession are duly brought to extend medical assistance to preserve human life.
All the Government hospitals nursing homes and polyclinics are liable to provide treatment to the best of their capacity to all the patients. The doctors, hospital the nursing homes and other connected establishment are to be dealt strictly if they are found to be negligent with the patients who come to them pawing all their money with the hope to live a better life with dignity. The patients irrespective of their social cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right. The court therefore hope and trust that this decision would act as a deterrent and a reminder to those doctors, hospitals, nursing home and either connected establishments who do not take their responsibility seriously.
The present legal position with regard to criminal liability of a doctor is that it can be fixed upon the doctor unless there is a prima facie case of gross negligence and recklessness. We have seen in the preceding pages that consumer forums have included medical services under the ambit of Section 2 (i) (o) of the Consumer Protection Act, 1986 which defines service. Thus, any deficiency in these service is construed to be a part of medical negligence as has been explained earlier.
Every doctor whether at a Government Hospital or otherwise has the profession all obligation to extend his services with due expertise for protecting life.
The term health implies more than are absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable man power for economic development.
Current practices, infrastructure para-medical and other staff, hygiene and sterility should be observed strictly.
No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone except in an acute emergency, should be avoided.
A doctor should not merely go by the version of the patient regarding his symptoms, but should able make his own analysis including tests and investigations were necessary.
A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.
An expert should be consulted in case of any doubt.
In a welfare state, the primary duty of the government is to secure the welfare of the people, providing adequate medical people is an essential part of the obligations undertaken by the Government in a Welfare State. The Government discharges this obligation by running hospitals and health centres, which provide medical care to the person seeking to avail of those facilities.
Adequate facilities are available at the Primary Health Centres where the patient can be given immediate primary treatment so as to stabilize his condition.
The Health centres and the hospitals and the medical personnel attached to these centers and hospitals are geared to deal with larger number of patients needing emergency treatment on account of higher risk of accidents on certain occasions and in certain reasons.
Proper arrangement of ambulance is made for transport of a patient from the primary health centre to the District Hospital or Sub-Division Hospital and from the District Hospital or Sub-Division Hospital to the State Hospital.
The above analysis of the cases emphaises the constitutional obligation of the state to provide for adequate health care to its peoples and the role played by the judiciary in enforcing the same in case of violation of right to health.Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence but it is to be judged in the light of the particular circumstances of each case is what the law requires.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
In the realm diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield the desired result may not amount to negligence.
Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
The medical practitioner at times also have to be saved from such a class of complaints who use criminal process as a tool for pressurizing the medial professionals / hospitals particular & private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
Faculty Member, Jeypore Law College, Jeypore, Dist.:Koraput (Odisha), Mob.:9438170563