The also commit mistakes during his practice.

The main purpose behind the evolution of
the concept of law is to provide aid to those who sustains injury due to the
acts committed by others. There is a saying that no man is perfect and the
person who is skilled and has knowledge can also commit mistakes during his
practice. Some mistakes caused by medical professional can be both minor and
fatal. Therefore it becomes imperative to have a remedy to the medical negligence.
Medical negligence  as the name suggests
refers to some irregular conduct on the part of the person or any member of the
profession whose negligence proved to be detrimental for others or deficiency
in the discharge of professional duties. The concept of medical negligence evolved
so that justice is upheld Components of medical negligence

 

In
Winfield’s word there are three main components of negligent act. They are:

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1)     
Existence
of legal duty

2)     
Breach
of legal duty

3)     
Damage
caused by breach

 

The liability of the person committing
the wrong can be divided into two parts depending on the kind of harm caused to
the injured person. They are:

Civil
liability- The person who is entrusted with the responsibility of treating
others and is expected to possess special knowledge and skill in the particular
field owes a duty of care to the other person.  He is liable to pay damages in the form of
compensation in case of any harm caused or wrong committed by him during the
treatment. Situations may arise where some senior doctors or hospitals can also
be held liable for the negligence. If a wrong is committed by him during this
period, then he is liable to pay damages in the form of compensation to him. In
some situations senior doctors or the hospital authorities can also be
vicariously held liable for the wrongs committed by junior doctors.

 

2)
Criminal liability- A criminal case is also filed under section: 204A of the
Indian Penal Code in case of death of the patient after the treatment. Section:
204A of IPC deals with causing death by rash or negligent act. The object of
civil law is to compensate the injured whereas the object of the criminal law
is to punish the wrongdoer.

 

Tests
used in India

As
the services rendered by doctors is considered to be the public service it is necessary
that certain guidelines are issued in this regard. In order to determine the
test for medical negligence and prosecution of medical practitioners the Supreme
Court of India has evolved certain guidelines. They can be summed up as
follows:

1)
The Government of India along with Medical Council of India should come up with
certain rules and regulations pertaining to negligence in medical practice.

2)
A prima facie evidence is required to be submitted before the authority taking
cognizance of the act. 

3.
The investigating officer is entrusted with the duty of obtaining impartial and
unbiased opinion of a doctor who practices in the same field in the same
regard.

4)
The doctor concerned should not be arrested like a regular prosecution.

 

Lately, indian society is experiencing  a growing awareness patients rights

 

Who can file complaint?

 A
consumer  or any recognized consumer
association i.e. voluntary consumer association registered under the companies
act, 1956 or any other law for time being in force, whether consumer is a
member of such association or not, or the central or state government.

It is necessary to know “who is a consumer”.

 A consumer is
a person who hires or avails of any service for consideration that has been
paid or promised or partly paid or promised or partly paid and partly promised
or under any system of deferred payment and includes any beneficiary of such
services other than the person hires or avails of the services for
consideration paid or promised or under any system of deferred payment, when
such services are availed of with the approval of the first mentioned person.
The definition is wide enough to include a patient who merely promises to pay.

 

What constitutes complaint?

A complaint is an allegation in writing made by a
complainant i.e.  a consumer that he or
she has sustained  loss or damage as a
result of  deficiency of service.

What can be regarded as deficiency of service?

Deficiency of service means any fault, imperfection
, shortcoming, or inadequacy in the quality, nature or manner of performance
that is required to be maintained by r under any law for the time being in
force or has been undertaken to be performed by a person in pursuance of  a contract or otherwise in relation to any
service.

Where complaint can be filed?

  A complaint
can be filed in district forum if the value of services and compensation is
claimed less than 20 lakh rupees. Before the state commission if the value of
the goods or services and the compensation claimed does not exceed more than 1
1crore rupees. National commission if the value of the goods or services and
the compensation exceeds more than 1 crore rupees.

 

Reasonable degree of care- an important question

By the term reasonable degree of care is meant the
skill and knowledge that is expected from a professional of a particular field
in the exercise of his profession and according to the required circumstances. There
is a distinction between the standard of care and the degree of care. The standard
of care remains the same in all the cases. At this stage it may be necessary to
note the distinction between the standard of care and the degree of care. The
standard of care is a constant and remains the same in all cases. Reasonable care
depends on the circumstance and does not necessarily needs to conform to the
highest degree of care. It is stated by the courts that reasonableness changes
with time. It is also not necessary for a doctor to be aware of all the
developments.