Medical Negligence: Meaning
Legal meaning
of Medical Negligence is slightly different from then from its general sense.
In layman’s understanding, medical negligence simply means carelessness, but in
the legal definition, medical negligence is more than mere carelessness. It is
a failure of a person to perform a certain act which he was expected to do in
the course of his duty.
In recent years
we all have seen or heard cases of doctors declaring alive baby as dead,
leaving medical instruments in patients body or prescribing wrong medicines,
etc., all these examples of medical negligence.
Medical Negligence in Indian Hospitals
Hospital
liability arises in medical negligence either directly or vicariously. A
hospital’s direct liability arose when the hospital itself was deficient in
providing a suitable environment and care to a patient. And Vicarious liability
arises when an employee has acted negligently, and the hospital is indirectly
responsible for the it’s employee fault. The rule of vicarious liability in
medical negligence is applied to the hospital because it is the employer and
the medical practitioner are its employees. In India, the rule of vicarious
liability states that employer is liable for the negligence done by the
employee.
When does medical negligence arise?
The liability
of a doctor does not simply arise because the patient has suffered an injury.
The liability arises when the injury suffered is due to the direct negligent of
a doctor or medical practitioner. So not every injury sustained by a patient
falls under the purview of medical negligence. For an act to be medical
negligence in India, there has to be a direct relationship between a patient’s
injury and the negligent act of the medical practitioner. Moreover, for the
negligent act of doctor or other medical practitioners, vicarious liability of
hospital arises automatically.
Remedies available against Medical Negligence
In cases of
medical negligence, the victim or the family members have the option of two
types of legal remedies.
Firstly, a
criminal complaint can be filed against the medical practitioner or the
hospital. The Indian Penal Code prescribed negligence as a crime under Section
52, 80, 81, 88, 91, 92 304A, 337 and 338. Section 304A deals with the crime of
causing a person’s death due to negligence or rash acts.
Secondly, a
consumer complaint can be filed for medical negligence under the Consumer
Protection Act, 1986. The complaint can be filed in the appropriate consumer
forum. The consumer forums in India are divided into three tiers:
l District Forum: Cases
with a total value up to Rs. 25 lakh are filed.
l State Consumer
Redressal Forum: Cases with the value above Rs. 25 lakh and below Rs. 1
crore are filed here.
l National
Commission: Cases with a total value of Rs. 1 crore and above are
filed here.