A NEW DIMENSION OF MEDICAL NEGLIGENCE

A case where a health care provider falls below the accepted standard of practice, while providing treatment to a patient and causing injury or death to the patient, it is a case of Medical Negligence. In a recent case the Consumer Forum in Mumbai stated that:-

"While considering the aspect of negligence on the part of a treating doctor, what we have to see is whether he took reasonable expected care of the patient which any other medical practitioner (would have done)" 

On August 27, 2013, the National Consumer Dispute Redressal Forum in the case of Dr. Mohanbhai S. Patel v. Thakkar Baldevbhai Keshavlal and Ors., upheld the findings of the State Commission and expanded the scope of medical negligence in the following words:-

“8. … when used drugs or procedure to terminate the pregnancy ought to have known the inherent danger of using the drugs and taken enough safeguard to either prevent those complications or at least should have remedied them recognizing them as they came (in this case since starting of initial treatment; danger signals had already started appearing). The lack of recognizing them and not treating them in time amounts to negligence

…

19. Complications occurring during the treatment cannot be said to be negligence but not recognizing them in time and not treating them or treating them too late when patient had reached end stage where results were certainly to the detriment to the patient certainly amounts negligence. The patient who has reposed full trust and faith in the hands of treating doctor for his or her life and if that trust and faith is negative, it is not only negligence but also deficiency in service.”

Though the National Forum has rightly recognised the rights of a patient who develops an ailment during an ongoing operation and surgery, there are few issues that it may have overlooked. In cases where the complication that has occurred was within too short a time to have been controlled or were of a nature wherein the percentage of cure is rare and at times, impossible. This will take us to square one which is, a medical practitioner would be liable only when his conduct fell below the standard of a reasonable competent practitioner in the field.

The national commission may have also overlooked a case of consent. Where, a patient may have consented for a particular treatment but not for another, it will be important for courts to probe if due consent of the patient (if has capacity) or of family and/or kin was obtained while carrying out a remedial treatment. Here is a short discourse on what are the elements of Medical Negligence:

Duty of care

The medical professional is held to a higher duty of care than that of the ordinary person. He has a duty to treat the patient in his best interest. Such duty of care arises from the consent of the Patient. Consent may be written or oral or implied. For instance, entering a doctor’s clinic and holding out your hand to seek treatment for a burn is an implied consent for the doctor to treat you in your best interest. The doctor brings upon him a duty of care towards his patient.  

Breach of duty of care

A medical professional must have breached a duty of care that he/she owed to the patient. Doctors can be found guilty of medical negligence, which is in essence a breach of a duty of care, for failed or delayed diagnosis, failure to warn of risks in treatment, among other things. 

Causation

In order to prove medical negligence one must show actual or proximate cause. Proximate cause is the primary cause of an injury. The determination of causation is critical and the courts have developed the “but for” rule. The rule states that “but for the medical professional’s negligent act or omission, the injury would not have occurred”. The rule is based on positive intervention or non-intervention. Consider this, “but for” the doctor leaving a scissor in the patient’s stomach the patient would not have developed an infection in his stomach. Such causation is also known as legal causation. But the “but for” rule is not sufficient as there may be other independent or intervening factors that may play a role and impact the injury. Therefore, to establish causation and liability it must be shown that the negligent act was the actual or primary cause of the ultimate injury or death.  

Injury and loss

Actual injury or loss must be proved by the patient to entitle him/her to an award of damages or compensation. There are two types of loss a person may seek to recover. Economic loss includes damages for the actual physical injury, medical expenses, compensation for lost work, etc. Non-economic losses are those that do not have a specific monetary loss associated with them, such as pain and suffering. 

Conclusion

Hence, though the forum has expand the definition of Medical Negligence by including failure to give remedial treatments during a surgery but the fact of the matter remains, that it will still be essential to show elements of medical negligence in the remedial treatment as well or it may just be another rare case having no treatment, let alone remedial treatment.

Rimali Batra