Abstract
The “World Consumers Right Day” is celebrated globally on March 15th and the “National Consumers Right Day” on December 24th each year in India to create awareness among consumers about their rights. Supreme Court verdict in 1995 brought the medical profession under the purview of the Consumer protection Act, 1986. Doctors are always afraid of its impact on them, many landmark judgments given by various consumer forums against doctors and health institutions to award compensation in alleged negligence cases, percussions of which can be felt every moment a doctor think of providing its services to a new patient. The Consumer Protection Act, 1986 (COPRA, 86), is a benevolent social legislation. It lays down the rights of the consumers and provides therefore promotion and protection of the rights of the consumers. Profession differentiated from Occupation.
KEYWORDS:
Medical Negligence, Damage, Damages, Duty, Dereliction of Duty, Compensation.
Introduction:
Indian Medical Association vs. V.P. Shanta and Ors (1995) is a three-Judge Bench decision. The principal issue which arose for decision by the Court was whether a medical practitioner renders 'service' and can be proceeded against for 'deficiency in service' before a forum under the COPRA.There is an urgent need to check increasing trend in number of medical negligence cases and deteriorating quality of healthcare in India. Study of decided cases of medical negligence can provide an insight into the reasons for medical negligence cases, factors mainly responsible for medical negligence and impact of doctor-patient relationship, etc. This study is attempted to explore the insight into ground realities and problems in the present healthcare system with ways & means to prevent these in healthcare institutions and medical fraternity. High cost of healthcare coupled with practice of defensive medicine will further aggravate the situation. Out of 48 cases studied 43 (89.58%) belongs to private hospitals and only 05 (10.42%) belongs to Government Hospitals. Surgical and Allied specialties and investigational specialties are more at risk of alleged medical negligence and subsequent probability of proof of medical negligence. Outcome of this study will definitely beneficial for all, for healthcare provider it will help in improving the quality of healthcare and doctor-patient relationship, restoration of lost trust in medical profession.
The Supreme Court dealt with how a 'profession' differs from an 'occupation' especially in the context of performance of duties and hence the occurrence of negligence. The Court noticed that medical professionals do not enjoy any immunity from being sued in contract or tort (i.e. in civil jurisdiction) on the ground of negligence. However, in the observation made in the context of determining professional liability as distinguished from occupational liability, the Court has referred to authorities, in particular, Jackson & Powell [4] and has so stated the principles, partly quoted from the authorities: "In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control.
In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties.In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services Scenario of Medical Negligence around the Globe and in India.
OBJECTIVES
• To study the pattern of medical negligence cases in Delhi.
• To study the reasons for medical negligence in Delhi.
• To know the profile of hospitals (Govt./Private).
REVIEW OF LITERATURE
It provides a comparative and detailed survey of the law under consumer protection act the law of torts as well as penal code.(Tapan kumar,2010).Private client business which aims to be leading journal for all those involved with private client work.(Michael jone,2003).Legal provisions and circumstances arises determining a health care professional liability in negligence.(Michael mulheran,2016).The preparation of the people relieve compensation for injuries and suffering.(Munesh Danzen,1985).The health care system in u.k.and the government training the nurses and the other health professionals.(Denis Carey,1998).One act of every ten physicians in America are involved in an alleged incident of malpractice.(William O.Robertson,1985).Prison for clients investigation health care and manage other duties includes investigation.(Naray Aarbu,1997).To provide such comprehensive and in depth guidance and first being dedicated to the child and the second covering issues,(Doireann O.Mahony,2015).Importance of medical malpractice and several events.(Dieter Giesen,1988).medical negligence and the books primary goal is to provide a simple explanation.(Tan ,2006).Relation to the global perspective and papers in the collectors are drawn from a symposium held in vinner.(Ken oliphant,2013).Medical ethics and medical negligence are specialities in the practice of medicine and surgery.(P.D.Shenery,2013).Doctrine should never find application to modern negligence cases.(P.A.Carstenn,2011).Development and current problems in Chinese medical negligence.(Chungian Ding,2012).Current medical malpractice and insurance situator.(Panteleymon,2004).Procedural steps taken by Supreme Court and other statutory instruments.(Michael Boylan,2016).Medical negligence and malpractice relating to provision.(Jefferson,2018).Emotional instability would certainly have resulted in medical negligence.(Allen .D,2003).The largest investigation held under performance of medical malpractice system.(Paul C.weiter ,1943).The negligence in medical field are very effective in cause of injuries.(Sarah green,2015).
Hypothesis:
Null: There is no significant for speedy remedy in cases of medical negligence.
Alternative: There is significant for speedy remedy in cases of medical negligence under medical council.
Materials and methods:
This researcher had used descriptive and analytical methodology to complete this research.
The empirical data has been collected, and the researcher has also referred the secondary sources including articles, journals, newspaper articles, books and e-sources. The study used a survey questionnaire to collect primary information from 53sample respondents selected in random manner. And the study used chi-square test to analysis the data and arrive at meaningful results.
Analysis and Discussion:
Legal scenario of medical negligence in India:
Have doctors become more negligent now? The kinds of malpractice hitting the headlines are not new: in 1953, a boy with a fractured limb died in Pune as a doctor operated on him without proper anaesthesia.Now the numbers are what first stand out, and what also make the questions necessary. According to a 2013 study (Global Burden of Unsafe Medical Care) by Dr. Ashish Jha of Harvard School of Public Health, of the 421 million hospitalisations in the world annually, about 42.7 million adverse events of medical injury take place, two-thirds of which are from low-income and middle-income countries. India records approximately 5.2 million cases a year, ranging from incorrect prescription, wrong dose, wrong patient, wrong surgery, and wrong time to wrong drug. With public awareness, claims and litigation are rising. In the country's consumer courts, they now top the list of 3.5 lakh pending cases.
According to Dr Girish Tyagi, registrar of Delhi Medical Council, the appellate authority for dealing with such cases, the number of cases from overcharging, needless procedures, wrong doctors to wrong decisions has zoomed in the last two years, from about 15 complaints a month to 40 now.A report by the Association of Medical Consultants shows that there were 910 medico-legal cases against doctors between 1998 and 2006 in Mumbai. Now they are going up by 150-200 cases every year. But it's the gap in the law that seems to leave both patients and doctors at a dead end. "For the longest time in India, medical negligence was not seen as compensable," says Barrister, Sushil Bajaj of The Integrated Law Consultancy, Delhi. Justice S. Ahmad observed that Medical Negligence plays its game in strange ways.
Sometimes it plays with life; sometimes it gifts an "Unwanted Child" as in the instant case where the respondent, a poor labourer woman, who already had many children and had opted for sterilisation, developed pregnancy and ultimately gave birth to a female child in spite of sterilisation operation which, obviously, had failed. Smt. Santra, the victim of the medical negligence, filed a suit for recovery of Rs. 2 lakhs as damages for medical negligence, which was decreed for a sum of Rs. 54000/- with interest at the rate of 12 per cent per annum from the date of institution of the suit till the payment of the decretal amount.
duties of doctors
In two decisions rendered by the Supreme Court of India, namely, Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole & ANR., 1969 and A.S. Mittal vs. State of U.P., 1989 it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. Role of Indemnity Insurance and Cost of Treatment.
It's also pushing doctors toward heavy professional indemnity policies. "It is usually around Rs.10 lakh, with a premium of Rs.3000- Rs.5000 per annum," says Dr. Neeraj Nagpal, Convenor, Medico-Legal Action Group, Chandigarh. If a doctor wants to cover himself against a claim of Rs.11.5 crore, the amount awarded to Saha, the premium will be between Rs.300000 and Rs.600000 annually. For that a doctor will have to attend to a large number of patients every day and raise his fees substantially. "With rising litigation, everyone will have to pay through their nose. Hon'ble Supreme Court of India in Jacob Mathew vs. State of Punjab & ANR., 2005 observed that with the awareness in the society and the people in general gathering consciousness about their rights, actions for damages in tort are on the increase.
medical ethics and medical negligence
In M/s Spring Meadows Hospital & Anr. vs. Harjol Ahluwalia through K.S. Ahluwalia & Anr.JT, (1998)it was observed as under In the case in hand we are dealing with a problem which centres round the medical ethics and as such it may be appropriate to notice the broad responsibilities of such organisations who in the garb of doing service to the humanity have continued commercial activities and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The influence exerted by a Doctor is unique. The relationship between the doctor and the patient is not always equally balanced.
The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient.
It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country.It was further observed as under In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence.That apart there has been a growing awareness in the public mind, to bring the negligence of such professional doctors to light Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned.