Medical Negligence & Legal Defenses for Hospital Professionals

Abstract

 Black’s Law Dictionary says that negligence is "the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation." 

Negligence is the failure to exercise due care. There are mainly three ingredients of negligence. They are as follows:

1. The defendant owes a duty of care to the plaintiff.


2. The defendant would have breached this duty of care.


3. The plaintiff should have suffered an injury due to this breach.

In the case of Medical negligence, the aggrieved patient will be the Complainant and the doctor, hospital or any other medical men involved will be the Defendants.

The doctor and other medical professionals owe a duty of care towards the patient. If they breach this duty of their care that has caused the patient certain loss or injury with respect to health, it may then be considered to be a case of medical negligence.

When medical service if given to a patient for free of cost and any complications occur in patient's health, the doctor cannot be held negligence because the patient was not a 'consumer' according to the Consumer Protection Act, 1986. The Supreme Court, in Indian Medical Association v. V.P. Shantha^[1] held the same principle and said that the plea for medical negligence will apply to those doctors or Hospitals only where the patients are treated free of cost.

If the complainant had by then filed a suit in another Court of appropriate jurisdiction, he cannot put another with the same complaint in another Court. This shall not be maintainable.

If the Consumer Forum does not have territorial jurisdiction or pecuniary jurisdiction, the compensation claimed is beyond the jurisdiction of the Court, the complaint does not continue to sustain. 

There is 2 years of limitation period^[2] for medical negligence cases. In case the patient who feels the doctor has committed medical negligence does not want to file a complaint in the Court of law, the patient need to do it within the time span of two years. Even if the complaint is filed the code feels the complaint is frivolous and vexatious and liable to be dismissed under section 26^[3] of the Consumer Protection Act, the Court may dismiss the case. 

If there is any indemnity insurance policy in existence, the doctor or the hospital should inform the insurance company in writing immediately on a complaint being lost by a patient. It should be done with the copy of the complaint and notice received from the Court.

Factual defences are those defences that the doctor can use against allegations with regard to the circumstances that are factual in nature. The defences are the doctor's qualifications, training, experience and expertise. The doctor may present his certificates, appreciation certificates for awards, or for attendance at various updates conferences and workshops for his defence.

Written evidence of consent of the patient or relative to assumption of inherent and special risks in the treatment is a good defence. Volenti non fit injuria is the voluntary risk of treatment that the patient takes.

Another important defence is that of the circumstances of the case, that is emergency on lack of facilities or for the patients history of any illness was not given to the doctor.

The burden of proof of duty of care, breach of the duty, causation and damage is on the complainant. So it is the responsibility of the complainant to prove medical negligence before the Court.

^[1] Indian Medical Association v. V.P. Shantha 1995 (8) JT 119

^[2] Consumer Protection Act, 1986

 Section 24A: Limitation period: (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. 

^[3] Section 26 in the Consumer Protection Act, 1986:

“Dismissal of frivolous or vexatious complaints .— Where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be speified in the order.”