Jul 22, 2022
Medical Negligence In India (What Medical Staff Need To Be Aware Of)
INTRODUCTION
It is an indisputable fact that the medical profession is a noble pursuit because it relates to protecting and preserving human life, which is perhaps the most valuable thing in the world. There have been cases where some medical practitioners have faced penal action due to the magnitude of their negligence or deliberate conduct. It comes as no surprise that even the smallest error made by a medical practitioner can have life-changing consequences for the patients. As a result, it is his or her paramount responsibility to take proper precautions to avoid such incidents.
Medical negligence is defined as any act or omission of a medical practitioner while performing his or her duties. It occurs when a medical practitioner fails to provide the care that is expected in a particular case, resulting in the patient's injury or death. It can be any tort or breach of contract involving health care or professional services provided to a patient by a health care provider.
Following are the primary components of Medical Negligence:-[1]
Existence Of A Legal Duty
In any treatment, the medical practitioner is required by law to exercise the same diligence as his contemporaries. Although there is no written contract between the patient and the doctor, there is a legal duty of care, and failure to provide adequate care can hold the medical practitioner liable for breach of professional duty.
Breach Of This Duty
A breach of legal duty occurs when a person fails to fulfil his legal duties as his contemporaries would have done in the given situations and circumstances. The standards used to determine a breach of legal duty are not very high, but they are those that would be expected of a qualified person in the ordinary course of professional treatment.
Breach Resulting In Damages
The aggrieved patient must be compensated for the resulting damages and injuries. The award of compensation must be just, fair, and reasonable in light of the facts and circumstances of the case.
Furthermore, it can be said that any case of medical negligence must deal with the 4 D’s, i.e. Duty, Dereliction, Direct Causation and Damage. The four Ds of medical negligence is vital to proving a case and receiving compensation for a patient’s medical care, lost income, suffering and pain, and other damages. A victim of medical negligence who wants to sue an at-fault medical professional or institution has the following options :[2]
Compensatory action: In this, the victim can seek monetary compensation through the Civil Courts, High Court, or Consumer Dispute Redressal Forum by the Constitution, Tort/Contract Law, and Consumer Protection Act.[3]
Punitive action: The victim can file a criminal complaint against the medical practitioner under the Indian Penal Code.[4]
Disciplinary action: This includes requesting disciplinary action against the concerned medical practitioner from professional bodies such as the Indian Medical Council/State Medical Council.
Recommendatory action: The victim can file a complaint with the National/State Human Rights Commission seeking redress.
Medical negligence can occur in numerous ways. Any deviation from accepted standards can cause injury to the patient and the doctor who operated on him, other staff, and/or the hospital may be held liable. Thus, a medical practitioner must be aware of all precautions and care that must be taken before any medical treatment to avoid violating patients' rights. The types of negligence and preventive measures that a medical practitioner should be aware of are as follows :
INFORMED CONSENT IS NOT TAKEN BY THE MEDICAL PRACTITIONER BEFORE THE PROCEDURE
Informed consent refers to an agreement, conformity permission given voluntarily without any compulsion. In the absence of consent, all medical procedures, including examinations, diagnostic procedures, and medical research on patients constitute assault (IPC Section 351) for which he is liable for the damages. There are two exceptions to this rule in which less information may be justified: therapeutic privilege and emergency life-threatening situations.[5]
From a legal standpoint, complete informed consent generally necessitates discussion of the following topics:
The patient's diagnosis;
The type of proposed treatment or procedure
Risks and benefits of the proposed treatment or procedure
The postoperative precautions that must be taken
Recommendation of the doctor
Thus, informed consent must be discussed in simple terminology that the patient can understand. This promotes a patient's rights as autonomous beings to ensure that they are treated with justice, beneficence, and respect.
SURGICAL ERROR DURING A PROCEDURE
In simple words, a surgical error is defined as a mistake made during surgery.[6] All surgeries carry some level of risk and the errors can occur in a variety of ways, such as injuring a nerve during surgery, operating on the wrong body part, operating on the wrong patient, and so on.
Some of the most common causes of surgical errors are:
The surgeon has not performed the procedure many times and simply lacks the necessary skills or expertise to execute the concerned procedure
Failure to communicate effectively can lead to several serious errors
Surgeons are notorious for working longer hours. This causes exhaustion. When compared to well-rested people, tired people are more likely to make mistakes.
Some surgeons use drugs and alcohol to cope with the stress they sometimes face- this may be disastrous if the doctor is under the influence during the procedure
Surgical errors, regardless of the cause, can leave patients with serious complications, infections, conditions, and other issues that they may have to live with for the rest of their lives. Certainly, many of these errors are preventable. Some preventative measures include:
Taking periodic timeouts throughout a procedure is one strategy used by surgical professionals to prevent errors. These breaks allow surgeons to revaluate their surgical techniques and allow staff to account for all items of equipment and other requisites
Professionals in the operating room should also be established to meet with patients before the procedure. During this time, physicians can confirm critical patient information as well as the type of surgery being performed.
Medical personnel should wear special gowns, masks, gloves, and hair covers during surgery to act as a barrier to microorganisms.
They should use sterile drapes and other antimicrobial barriers, keep the surgical area germ-free, and limit the number of people entering and exiting the operating room.
DIAGNOSTIC ERRORS AND MISDIAGNOSES
Misdiagnosis, delayed diagnosis, or failure to diagnose are the most common examples of medical negligence. Correctly diagnosing symptoms is critical for providing medical care to any patient. However, if a patient is not properly treated because of a mistake in diagnosis, the medical practitioner may be held liable for any further injury or damages caused by the incorrect diagnosis. This can occur due to:
Loss of focus
Lack of appropriate tools
Failure to elicit complete and accurate information from the patient
Failure to recognise the significance of certain data
Some medical practitioners misdiagnose their patients, preventing them from receiving the appropriate treatment for their condition. Failure to correctly diagnose a patient can prolong an illness, cost the patient more money, and even result in permanent injury.[7] This problem can be prevented if medical staff keep the following things in their mind :
Making time to communicate effectively with patients
Work closely with lab personnel and radiologists to interpret complex test results.
When multiple constituents are involved, ensure that all members of the healthcare team are on the same page regarding the diagnosis
Advocating for new technologies and informatics systems
ERRORS IN ANAESTHESIA
Anaesthesia is a risky component of any surgery and must be administered and monitored by a qualified anesthesiologist. Any procedure that requires anaesthesia carries some level of risk. Although a variety of factors can contribute to errors, negligence is frequently the blame. Anaesthesia dosage errors or delays in Anaesthesia administration can be the causes of anaesthesia errors. When a medical professional fails to provide the appropriate standard of care, the doctor or anesthesiologist may be held liable for any injuries that result.[8]
The practitioner should have a thorough knowledge of these anaesthesia errors to avoid any serious harm, and he must follow these strategies to avoid making the errors:
Encourage employees to speak up if they are doubtful about medication dosage or medical equipment.
Application of regional anaesthesia
Hospitals should think about assuring documentation is done by the right people at the right times – not only for proper anaesthesia administration but also to keep everything organised
NOSOCOMIAL INFECTION
Nosocomial infections are infections acquired during a hospital visit or stay, which may be caused by the own actions of a person or by medical personnel. These infections could be bacterial, fungal, or viral. For example, If a patient is on a ventilator for assisted respiration and the nose mask is not changed and re-used from another patient due to an error of the ward boy, the patient may become infected.
Hospitals are crawling with harmful bacteria. Infections are the cause of many admissions. Some staff members may not follow good hand washing practices; the hospital has hand sanitisers throughout, but what if employees are frequently hurried and fail to use them, the germs can be spread from one place to another by anyone. Thus to prevent these infections, some steps should be taken :
Cleanliness is essential in a hospital environment, including wards and operating rooms, as well as all public areas such as waiting rooms, public restrooms, cafeterias, and chapels.
All shared equipment should be sanitised after the use
Education has to be provided on how to thoroughly clean clinical areas and equipment
Hand decontamination procedures have to be implemented before workers come into direct contact with patients' skin or food, before changing dressings or invasive devices, and then after caring for patients and removing gloves.
CONCLUSION
In the previous paragraphs, the situations and errors that a medical practitioner should be aware of, as well as the consequences of them have been thoroughly discussed. It is important to keep in mind that patients earnestly believe that they will recover and be healed as a result of the treatment. However, it is not unusual for practitioners to make errors that cost patients dearly in a variety of ways. Furthermore, in some cases, the nature of the errors becomes profound and results in unprecedented detriment to the patient. In such cases, the practitioner may invoke the defences of contributory negligence, corporate negligence and Novus actus intervene if any exist. Practitioners, on the other hand, must remain cognizant of any error that may occur before, during, or after treatment.
[1] Varghese, R. (2014). Medical Negligence: The Limit and Limitations. Galgotias Journal of Legal Studies, II(2)
[2] Nizam’s Institute Of Medical Sciences V. Prasanth S.dhananka & Ors. [2009] INSC 1073
[3] Chauhan, S. R, Goldar, K..(2012) Medico Legal Cases and Medical Negligence. Employees’ State Insurance Cooperation.
[4] Section 304A, IPC deals with ‘Causing death by negligence
[5] Bhakuni, H. (2020). Informed consent to clinical research in India: A private law remedy. Medical Law International 20(3). https://doi.org/10.1177/0968533220958185
[6] Bhattacharya, K., Bhattacharya, N. Breaking Bad News of Surgical Complications in India. Indian J Surg 84, 3–6 (2022)
[7]Karande S, Marraro G A, Spada C. Minimizing medical errors to improve patient safety: An essential mission ahead. J Postgrad Med 2021;67:1-3
[8] Adlakha, P., & Nagpal, N. (2021, April 22). Medical Negligence in India. Ssrana. https://ssrana.in/articles/medical-negligence-india/
