On 5 June, 50-year-old Mumbai resident Kavita Dalvi was admitted to Wockhardt Hospital after she suffered a heart-related ailment. Two surgeries and 15 days later, Dalvi breathed her last on 20 June.
Her husband Vikas, while talking to Mid-Day, alleged that her death was caused due to “hospital’s negligence” as they inserted a faulty valve in her heart.
This is not a one-off case of medical negligence. On Saturday, 24 June, the National Consumer Disputes Redressal Commission ordered a Delhi-based private hospital to pay Rs 1.5 crore to a couple for “negligence and resorting to unethical practices,” during an IVF procedure in 2009.
While medical negligence cases may be in the news every so often, information about them remains mostly jargonised.
FIT spoke to experts to understand all this and more – What is medical negligence? Which laws govern it? Who can aggrieved citizens approach? Do doctors and hospitals have a defence in such cases?
Man Alleges Medical Negligence by Mumbai Hospital: What Does The Law Say?
1. What Is Medical Negligence?
Section 304A of the Indian Penal Code defines 'causing death by negligence' as a death caused by "doing any rash or negligent act not amounting to culpable homicide."
It says,
"Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both," Section 304A states.
However, Namrata Mohapatra, an advocate who practises at the Delhi High Court and the Supreme Court, says that based on the judgment in Jacob Mathew Vs State of Punjab (2005), a doctor may be held liable for negligence if:
He was not possessed with the requisite skill which he professed to have.
He did not exercise with reasonable care in any given case, the skill which he did possess.
In the same case, the Supreme Court also accepted that the principle relating to medical negligence is called the ‘BOLAM Rule’, which says that “a medical negligence arises from an act of omission by a medical practitioner, which a reasonably competent and careful practitioner would not have committed.”
However, the law does not define what "act of omission" or "reasonably competent and careful practitioner" mean, say Mohapatra. So, in reference to older cases, the latter is often taken to be someone who has a medical degree.
Areeb Uddin Ahmed, a Delhi-based advocate, tells FIT, "To establish a case of medical negligence, the following elements are generally considered: duty of care, breach of duty, causation, injury, or harm."
Examples of medical negligence might include:
Failure to diagnose
Incorrect diagnosis
Deferred diagnosis
Inaccurate surgery
Ignoring the history of patients
Long term negligent treatment
Childbirth and labour malpractice
Needless surgery
Erroneous administration of anaesthesia
Expand2. Which Laws Govern Medical Negligence in India?
Although medical negligence in India is governed under Section 304A (causing death by negligence) of the IPC, Mohapatra says, certain other IPC sections that are often referred to while hearing medical negligence cases include:
Section 52: All the acts which are performed with care & attention are said to be in "good faith."
Section 80: Accident in doing a lawful act.
Section 81: Act likely to cause harm, but done without criminal intent, and to prevent other harm.
Section 88: Act not intended to cause death, done by consent in good faith for person’s benefit.
Section 90: Consent known to be given under fear or misconception.
Section 326: Voluntarily causing grievous hurt by dangerous weapons or means.
Section 336: Act endangering life or personal safety of others.
Section 337: Causing hurt by act endangering life or personal safety of others.
Section 338: Causing grievous hurt by act endangering life or personal safety of others.
“For civil liability, it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the accepted principles. But for convicting a doctor in a criminal case, it must also be proved that this negligence was gross and amounted to recklessness.”
Namrata MohapatraMohapatra goes on to explain that the former would apply in cases of smaller mistakes on the doctor's part, but the latter is often seen in cases where the patient passed away.
Ahmed also adds that these judgments have impacted the medical negligence laws in India:
Indian Medical Association vs VP Shantha (1995)
Jacob Mathew vs State of Punjab (2005)
Malay Kumar Ganguly vs Sukumar Mukherjee (2009)
Kusum Sharma vs Batra Hospital and Medical Research Centre (2010)
Expand3. Who Does The Burden Of Proof Lie On?
The burden of proof in medical negligence cases lies on the patient.
"The patient must prove that the medical practitioner has fallen short of the standard of reasonable care, proved by evidence and material on record."
Namrata MohapatraAhmed explains the many steps that this might require. He says, "The claimant (the patient/their family) must establish that a doctor-patient relationship existed, and the doctor owed a duty of care towards the patient. Furthermore, the claimant must provide evidence to show that the medical professional breached the duty of care by deviating from the accepted standard of medical practice."
He goes on to explain, "Thirdly, the claimant must establish a causal link between the breach of duty and the harm suffered. It should be demonstrated that the negligence directly caused or significantly contributed to the patient's injury or harm."
"Lastly, the claimant must prove that they have suffered damages or harm as a result of the alleged medical negligence. This can be done through medical records, expert opinions, and other relevant evidence."
Areeb Uddin AhmedHowever, in cases where medical negligence is apparent, the doctrine of Res Ipsa Loquitur (the thing speaks for itself) is attracted, says Mohapatra, and the proof of burden shifts to the doctor.
For instance, if the right leg of the patient had to be operated but the doctor operated on the left leg, the negligence is apparent and the burden of proof, in this case, would be on the doctor, says Mohapatra.
Expand4. Where Does The Doctor’s Responsibility End, And Where Does The Patient’s Begin?
Mohapatra explains that according to the Charter of Patients’ Right and Responsibilities (as approved by National Council for Clinical Establishments), the patient has to provide all health-related information to the doctor, cooperate with them, follow instructions, pay the fee, respect the medical staff, and not resort to violence.
On the other hand, the doctor needs to give the patient all the relevant information about their illness, the procedure, the outcome, possible complications, and the charges of all available options as well.
“They should give them access to their case papers, patient records, investigation reports and detailed bills. The doctor should treat all his patients with equality and show no discrimination in treatment.”
Namrata MohapatraOther than this, doctors also need to follow the standard operating procedures mentioned in the Clinical Establishment Rules and the National Accreditation Board for Hospitals & Healthcare Providers.
But that is not all. While the doctor’s and patient’s responsibilities might end here, the institution’s responsibilities are much more comprehensive. Some of these include:
Setting up mechanisms to prevent violence against doctors
Installing CCTV cameras around the entire premises
Appointing a nodal officer to monitor medical negligence
Bettering the infrastructural facilities of the establishment
If the doctor and the institution don't fulfil their roles and someone files a medical negligence case against them, both of them have to appear before the court in their individual capacities to prove their innocence, says Mohapatra.
What Can The Patient Do?
File a complaint with the
State Medical Council
Consumer Court
Civil Court
Or the patient can resort to filing a criminal complaint as well.
What Can The Doctor’s Defence Be?
Though this will of course vary from case to case, usually the doctor’s defence in such cases is that:
They have not "breached their duty."
They provided standard care.
Expand5. Are Medical Negligence Laws in India Foolproof?
Not exactly. Mohapatra says that there are several limitations that still exist when it comes to medical negligence laws in India. For one, there is still no statute that actually defines what 'medical negligence' is.
"Not having a defined term makes it harder in a complex situation such as a doctor-patient relationship. The doctor would always have an upper hand in this situation, ie the doctor having superior knowledge, training, experience etc."
Namrata Mohapatra(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)
Expand
What Is Medical Negligence?
Section 304A of the Indian Penal Code defines 'causing death by negligence' as a death caused by "doing any rash or negligent act not amounting to culpable homicide."
It says,
"Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both," Section 304A states.
However, Namrata Mohapatra, an advocate who practises at the Delhi High Court and the Supreme Court, says that based on the judgment in Jacob Mathew Vs State of Punjab (2005), a doctor may be held liable for negligence if:
He was not possessed with the requisite skill which he professed to have.
He did not exercise with reasonable care in any given case, the skill which he did possess.
In the same case, the Supreme Court also accepted that the principle relating to medical negligence is called the ‘BOLAM Rule’, which says that “a medical negligence arises from an act of omission by a medical practitioner, which a reasonably competent and careful practitioner would not have committed.”
However, the law does not define what "act of omission" or "reasonably competent and careful practitioner" mean, say Mohapatra. So, in reference to older cases, the latter is often taken to be someone who has a medical degree.
Areeb Uddin Ahmed, a Delhi-based advocate, tells FIT, "To establish a case of medical negligence, the following elements are generally considered: duty of care, breach of duty, causation, injury, or harm."
Examples of medical negligence might include:
Failure to diagnose
Incorrect diagnosis
Deferred diagnosis
Inaccurate surgery
Ignoring the history of patients
Long term negligent treatment
Childbirth and labour malpractice
Needless surgery
Erroneous administration of anaesthesia
Which Laws Govern Medical Negligence in India?
Although medical negligence in India is governed under Section 304A (causing death by negligence) of the IPC, Mohapatra says, certain other IPC sections that are often referred to while hearing medical negligence cases include:
Section 52: All the acts which are performed with care & attention are said to be in "good faith."
Section 80: Accident in doing a lawful act.
Section 81: Act likely to cause harm, but done without criminal intent, and to prevent other harm.
Section 88: Act not intended to cause death, done by consent in good faith for person’s benefit.
Section 90: Consent known to be given under fear or misconception.
Section 326: Voluntarily causing grievous hurt by dangerous weapons or means.
Section 336: Act endangering life or personal safety of others.
Section 337: Causing hurt by act endangering life or personal safety of others.
Section 338: Causing grievous hurt by act endangering life or personal safety of others.
“For civil liability, it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the accepted principles. But for convicting a doctor in a criminal case, it must also be proved that this negligence was gross and amounted to recklessness.”Namrata Mohapatra
Mohapatra goes on to explain that the former would apply in cases of smaller mistakes on the doctor's part, but the latter is often seen in cases where the patient passed away.
Ahmed also adds that these judgments have impacted the medical negligence laws in India:
Indian Medical Association vs VP Shantha (1995)
Jacob Mathew vs State of Punjab (2005)
Malay Kumar Ganguly vs Sukumar Mukherjee (2009)
Kusum Sharma vs Batra Hospital and Medical Research Centre (2010)
Who Does The Burden Of Proof Lie On?
The burden of proof in medical negligence cases lies on the patient.
"The patient must prove that the medical practitioner has fallen short of the standard of reasonable care, proved by evidence and material on record."Namrata Mohapatra
Ahmed explains the many steps that this might require. He says, "The claimant (the patient/their family) must establish that a doctor-patient relationship existed, and the doctor owed a duty of care towards the patient. Furthermore, the claimant must provide evidence to show that the medical professional breached the duty of care by deviating from the accepted standard of medical practice."
He goes on to explain, "Thirdly, the claimant must establish a causal link between the breach of duty and the harm suffered. It should be demonstrated that the negligence directly caused or significantly contributed to the patient's injury or harm."
"Lastly, the claimant must prove that they have suffered damages or harm as a result of the alleged medical negligence. This can be done through medical records, expert opinions, and other relevant evidence."Areeb Uddin Ahmed
However, in cases where medical negligence is apparent, the doctrine of Res Ipsa Loquitur (the thing speaks for itself) is attracted, says Mohapatra, and the proof of burden shifts to the doctor.
For instance, if the right leg of the patient had to be operated but the doctor operated on the left leg, the negligence is apparent and the burden of proof, in this case, would be on the doctor, says Mohapatra.
Where Does The Doctor’s Responsibility End, And Where Does The Patient’s Begin?
Mohapatra explains that according to the Charter of Patients’ Right and Responsibilities (as approved by National Council for Clinical Establishments), the patient has to provide all health-related information to the doctor, cooperate with them, follow instructions, pay the fee, respect the medical staff, and not resort to violence.
On the other hand, the doctor needs to give the patient all the relevant information about their illness, the procedure, the outcome, possible complications, and the charges of all available options as well.
“They should give them access to their case papers, patient records, investigation reports and detailed bills. The doctor should treat all his patients with equality and show no discrimination in treatment.”Namrata Mohapatra
Other than this, doctors also need to follow the standard operating procedures mentioned in the Clinical Establishment Rules and the National Accreditation Board for Hospitals & Healthcare Providers.
But that is not all. While the doctor’s and patient’s responsibilities might end here, the institution’s responsibilities are much more comprehensive. Some of these include:
Setting up mechanisms to prevent violence against doctors
Installing CCTV cameras around the entire premises
Appointing a nodal officer to monitor medical negligence
Bettering the infrastructural facilities of the establishment
If the doctor and the institution don't fulfil their roles and someone files a medical negligence case against them, both of them have to appear before the court in their individual capacities to prove their innocence, says Mohapatra.
What Can The Patient Do?
File a complaint with the
State Medical Council
Consumer Court
Civil Court
Or the patient can resort to filing a criminal complaint as well.
What Can The Doctor’s Defence Be?
Though this will of course vary from case to case, usually the doctor’s defence in such cases is that:
They have not "breached their duty."
They provided standard care.
Are Medical Negligence Laws in India Foolproof?
Not exactly. Mohapatra says that there are several limitations that still exist when it comes to medical negligence laws in India. For one, there is still no statute that actually defines what 'medical negligence' is.
"Not having a defined term makes it harder in a complex situation such as a doctor-patient relationship. The doctor would always have an upper hand in this situation, ie the doctor having superior knowledge, training, experience etc."Namrata Mohapatra
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)