With rapid developments in the field of medical sciences, cure of various diseases is now possible. It is now possible to revive a patient from crisis situations and treat ailments which were earlier considered to be life threatening. 

With these advancements in medical profession, the cases of medical negligence have also increased.

Described as the noblest profession in the world, medical professionals at many a times are able to infuse a new lease of life into a patient but at times doubts also appear on the horizon and friends and relatives level charges of negligence on the doctors and surgeons. 

With the increasing awareness among the people about their rights, there is a rise in the number of civil suits and criminal complaints against the doctors who show negligence in their work. After the judgment of Supreme Court in Indian Medical Association v. V.P. Santhara, cases are also filed under the Consumer Protection Act, 1986 seeking compensation for the negligent act allegedly committed by the doctor. 

Negligence is the breach of a duty caused by the 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 failure to exercise the care that a reasonably prudent person would exercise in like circumstances.Negligence in simple terms is a careless conduct on the part of one person which results in damage to another.

In a case of negligence the action arises only after the plaintiff has suffered some damage and that damage is on account of breach of a duty committed by the defendant. Here the Âduty is not merely a social or a moral duty but a legal duty.

In Jacob Mathew v. State of Punjab, the Supreme Court pointed out the difference between civil and criminal liability,Âfor negligence to amount to an offence, the elements of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil cases but cannot form the basis of prosecution. 

A medical professional is a qualified doctor is fully committed to the ethical principles and values of medical profession. It is an occupation aimed at protecting, promoting and restoring good health with a focus on identifying, diagnosing and treating illness using scientific and highly specialized knowledge. 

An occupation where caring for the patients is the first concern and the following principles are applicable Scientific knowledge has to be instigated, used and transmitted, Permanent evaluation is used to improve service, knowledge gets used in an ethical and competent manner, Medical profession is always aimed at improving the health needs and providing well- being at communities and their individuals.

Medical professional in simple terms is person registered with respective medical field and having a license to practice in medicine.Medical negligence is when a doctor who has a duty of care towards his patients, commits a breach in that duty, resulting in damage to the patient. 

Medical negligence has become an issue of concern, though the cases of medical negligence were seen in the past also, but now these cases have increased due to the careless attitude of some doctors and also the hospitals which are now becoming corporate houses and whose primary aim is not to give health care facilities but to increase their profits, no matter if it is at the expense of a patientÂs life. 

In Dr. LaxmanBalkrishnajoshi v. Dr. TrimbakBapuGodbole, the Supreme Court held that a person holding himself for giving a medical advice also impliedly holds forth that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes certain duties of care in deciding whether to undertake the case, duty of care in deciding what treatment to give, duty of care in administration of that treatment. A breach of any of these duties gives rise to an action of negligence against him.

The standard of care required by a doctor is that of a reasonable prudent medical professional would exercise in like circumstances.

LIABILITY OF DOCTORS 

In India doctors are treated as God because of the noble profession they are in. A person gives his life in the hands of another person so that the person can revive his health back to normal with a consent that in the ongoing treatment if anything misshapen the responsibility would be on the person who so consented to that risk. 

The person who has so consented to undergo a medical risk has given the consent for all the acts which are necessary for the treatment but at the same time he has not consented for any sought of negligence committed by the doctor.

The field for the compensation and punishment for medical negligence was not developed in India, as it was in other countries; doctors were not punished even after doing a gross negligence taking name of God or blaming the destiny of the person, this made the doctors more careless in their attitude towards the patients but with the time and also when people became aware of their rights, this field has evolved and now people have started to report the cases of negligence of the doctors. Though the laws relating to doctors were available, but their enforcement was limited.

In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and anr, the Court laid down a few duties of a doctor namely — Duty in deciding whether to undertake the case, Duty in deciding what treatment to give, duty of administering the treatment. 

It was laid down that any breach of these duties by the medical practioner would result in the commission of negligence by him

In Poonamverma v. Ashwin Patel the defendant was a registered homeopathic doctor, prescribed the husband of the plaintiff allopathic drugs for the treatment of fever and then typhoid. As a result of these drugs the plaintiffÂs husband died. The court in this case found the doctor to be negligent on the ground that doctor prescribed the drugs which he was not competent enough to administer.

In Sishir Rajan Saha v. The State of Tripura  the petitionerÂs son, while riding on a scooter met with an accident. He was admitted to G.B. hospital in Agartala in the emergency ward. The Specialist Doctor did not attend him because he was busy attending his private patients. In this case, the court found the doctor to be negligent.

In Jacob Mathew v. State of Punjab  the Supreme Court in detail explained that a doctor can only be held liable for gross negligence committed by him and also, a doctor has to be put on equal footing as any other professional while deciding the question as to negligence. A doctor is not liable for simple lack of care, accident or error of judgment, but on the other hand the doctor would be liable if he has the skill but he did not exercise his skill or that the doctor has exercised his skill in a manner that no other expert in similar situation would administer.

The very logic behind not making the doctor guilty even for a simple negligence is based on following considerations:- the act of performing a surgery or administering a treatment is inherently a risky job, there are a lot of complications attached to every surgery, the doctor would not be able to administer proper treatment to a patient when he is continuously under fear of legal consequences and the doctor would be under an impression to leave the patient on his destiny rather than to take the risk of prosecution. A doctor who is a specialist, has considerable amount of experience, and good will is expected to be more cautious in his approach, the degree of care expected from him more than what is expected from a new, less experienced or a general physician. The degree of care and expectation of lesser negligence is directly proportional to the experience and specialization of the doctor, more the doctor (a specialized) is the care expected from him. 

The cases against the medical negligence committed by the doctors can be filed under the civil laws as well as the criminal laws. Under the civil law (Consumer Protection Act, 1986) the plaintiff can ask for the compensation for the deficiency in services and thereby for the damage subsequent to such deficiency while under the criminal law (Indian Penal Code, 1860) the complainant can file a case against the doctor if punishment of the accused is sought.

In JasbirKaur v. State of Punjab , a newly born child went missing from a Government run hospital, after a considerable time the child was found with an eye gouged out. It was found that the child was attacked by a cat, the hospital was found to be guilty of negligence and the parents of the child were awarded compensation for the act.

In Haripada Sahav. State of Tripura the patient developed an infection during the operation but it was contended by the doctor that the infection was developed after the discharge. An expert committee was constituted which found the doctor guilty of negligence and thereby the plaintiff was awarded compensation

For making a doctor liable under the criminal law the degree of negligence required should be graver than under the civil law. A medical professional here under the criminal negligence cannot be held guilty for a simple negligence or error of judgment and so on. 

In Juggan Khan v. State of Madhya Pradesh the appellant who was a registered homeopathic doctor was charged under section 302 (causing murder) of the Indian Penal Code. In this case, the accused doctor had administered 24 drops of mother tincture stramonium and dhatura leafs for the treatment of guinea worm. The plaintiff died within 24 hours of the said administration. The lower convicted the appellant and High Court upheld the decision of the lower court. The Supreme Court in appeal considering the fact that dhatura leaves are not used in Homeopathic but they are used in Ayurvedic treatments in avery limited quantity held that though the doctor was guilty but the conviction under section 302 of the Code is not proper and hence convicted the doctor under section 304-A of the code. 

Consent 

Before undergoing any surgery starting from a root canal treatment to surgery of any body part the patient or his attendants as the case may be are required to sign a form giving consent to the surgery or the treatment and also this serves as an undertaking accepting the risk which is inherently attached to the surgery or treatment.  By signing this form the doctor is given the power to take appropriate decisions and in good faith regarding the surgery or the treatment. 

It is often misunderstood by the people that by giving consent to the treatment, the doctor have been relieved from all his liabilities. The consent form is just an undertaking to accept the complications which are connected to the treatment and it is not an undertaking to accept the negligent acts of the doctor.

 In this matter regarding the signing of the consent form, the doctor and patient are clearly not at the equal footing. The patient is forced to sign the form even if he does not want to because of the fact that his treatment will not be started till he signs the form and as a consequence he would not get relief from his pain and sufferings.

Doctors often misinterpret that by making the patient sign the consent form they have been completely made free from any liability and patient has waived his right to sue for medical negligence. 

It is true that there have been cases where the doctors have been proved to be negligent but the truth is there are number of doctors who are performing their duty in the most honest way they can, they are serving the people with open hands and helping them in the best possible way. On the other side, there are professionals who are disobeying their professional and ethical code of conduct.

The issue of medical negligence is a serious one,  even today a huge number of cases relating to medical negligence go unreported majorly because of the fact that people are less aware of their rights and also that people are scared of coming forward to report against the doctor. This has indeed led to the doctors becoming more lenient and careless in their approach towards the patient. It is a matter of a personÂs life and personal safety which cannot in any manner be taken in a casual manner. The law related to medical negligence is still not properly enforced in the country, it may be worth considering to enact a separate law relating to medical negligence. 

(The writer is pursuing LLM at the National Law School of India University)