This article is written by SALONI SANTOSH SANKHE of Sonopant Dandekar Shikshan Mandali’s Law College.
Introduction
“The finest of all the arts, medicine is now lagging far behind all the others, mostly due to ignorance on the part of people who practise it, as well as the foolishness of those who make a judgement on them without considering the consequences.” -Hippocrates.
To begin with the term “Medical negligence” let’s first understand about the term Negligence itself, it is the breach of a duty exercised by 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.[1] Negligence refers to the failure to exercise the appropriate level of care expected in a given situation. In the medical context, it occurs when a healthcare provider does not adhere to the standards of their profession.[2] The three essential components of negligence include: The defendant has a duty of care towards the plaintiff, the defendant has breached this duty and the plaintiff has sustained an injury as a direct result of this breach.[3][4]
The foundational principle of medical negligence, known as the Bolam Rule,[5] has been accepted by the Supreme Court as the definitive test for medical negligence, as established in Jacob Mathew v. State of Punjab[6]. This principle was articulated in the landmark case of Bolam v. Friern Hospital Management Committee[7], The test for medical negligence is based on whether the professional met the standard of care expected from an ordinarily skilled practitioner in their field, not necessarily possessing the highest level of expertise. As long as the medical professional’s actions align with a recognized and reasonable standard of care, they are not considered negligent.[8]
Medical negligence has become a significant concern for patients in India. Once revered as divine, medical practitioners in the country now face growing scrutiny due to an increasing number of negligence cases, in one such case where a homeopathic doctor who prescribed allopathic medicine to a patient, resulting in the patient’s death, was found negligent. The Supreme Court held the doctor liable for compensation to the deceased’s wife. This decision emphasized that practicing beyond authorized medical systems constitutes negligence per se under civil law.[9]
Understanding Medical Negligence and Its Legal Framework
Cross v. Gutherie[10] marked the first medical negligence case in the United States. It involved a postoperative mastectomy where the patient died shortly after surgery. The patient’s husband sued Dr. Cross, alleging a breach of promise to perform the surgery skillfully. The court held Dr. Cross accountable for negligence, awarding damages for the loss of companionship.[11]
In India, medical negligence is governed by several legal provisions, including the Consumer Protection Act, 1986, which allows patients to seek redress for deficient services. The Indian Penal Code, Sections 304A[12] and 337[13], provides for criminal liability in cases of gross negligence resulting in death or injury. Landmark cases like Indian Medical Association v. V.P. Shantha,[14] have expanded the scope of medical negligence, bringing medical services under the ambit of the Consumer Protection Act.[15]
Worldwide, countries have established various legal mechanisms to address medical negligence. In the United States, medical malpractice is a significant legal domain with laws varying by state. The UK relies on common law principles and statutory provisions, such as the National Health Service Act 2006[16], to address medical negligence. The Montgomery v. Lanarkshire Health Board[17] case in the UK underscored the importance of informed consent, setting a precedent for patient autonomy in medical decisions.[18]
Surge in Medical Negligence Litigations: Causes and Trends
The increase in medical negligence litigations can be attributed to several factors. Enhanced patient awareness, access to information, and a growing emphasis on patient rights have empowered individuals to seek legal recourse for medical grievances. The proliferation of legal services, often operating on no-win-no-fee bases, has lowered the barriers for patients to file lawsuits.
In India, the surge in medical negligence cases has been significant. Reports indicate that the National Consumer Disputes Redressal Commission (NCDRC) receives thousands of medical negligence complaints annually. The case of Kunal Saha v. Dr. Sukumar Mukherjee[19] is a notable example where the Supreme Court awarded a record compensation of INR 11 crore for medical negligence, highlighting the judiciary’s stance on accountability in healthcare.[20] In State of Haryana v. Smt. Santra[21], the Supreme Court ruled that “every doctor is obliged to act with a fair degree of care and skill.”
Defensive Medical Care: A Consequence of Increased Litigations
Defensive medicine refers to practices where healthcare providers order additional tests, procedures, or consultations primarily to avoid litigation rather than to benefit the patient.[22] This approach is a direct consequence of the rising threat of medical negligence lawsuits.[23] [24]
Defensive medicine, a global issue, involves excessive tests and treatments to avoid liability for medical negligence. Initially, medical professionals in India were held accountable based on tort or criminal law principles. However, after the Consumer Protection Act of 1986 was enacted, the liability of medical professionals became a contentious issue. Defensive medicine is categorized into (a) positive defensive medicine, which involves assurance behaviors, and (b) negative defensive medicine, which involves avoidance behaviors.[25] Positive defensive practices lead to unnecessary medical interventions and resource wastage, such as redundant tests and procedures. Negative defensive medicine involves avoiding high-risk patients and procedures to minimize legal risks and malpractice lawsuits. In India, defensive medical practices have become prevalent, with doctors often ordering unnecessary diagnostic tests or referring patients to multiple specialists.[26] This trend is particularly evident in private healthcare, where the fear of litigation and reputation damage is acute Defensive medicine has significant implications for the healthcare system. In Arun Kumar Manglik v. Chirayu Health and Medicare (P) Ltd[27], the Court emphasized that medical professionals must avoid unreasonable treatment decisions to prevent unnecessary defensive practices. This approach leads to inefficiency, as it results in wasted resources and fails to improve patient outcomes. Moreover, it disproportionately affects economically disadvantaged individuals by increasing healthcare costs and pushing prices beyond their reach. The pandemic highlighted this issue with inconsistent and unaffordable medical costs.
Defensive medicine’s primary perceived benefit is reducing liability risk, but it often doesn’t improve clinical outcomes and may still expose practitioners to malpractice claims. The focus should be on skillful treatment and adhering to standard care to achieve better results without unnecessary expenses and potential harm to patients. In the United Kingdom, the Paterson case has been a landmark in medical negligence jurisprudence.[28] Ian Paterson, a surgeon, was found guilty of performing unnecessary surgeries on patients, leading to severe physical and psychological harm. The case resulted in significant legal reforms, including increased regulatory scrutiny and changes in how medical negligence cases are handled.[29]
Policy Recommendations and Legal Reforms
To address the challenges posed by medical negligence and defensive medicine, several policy recommendations and legal reforms are necessary. Tort reform is a critical aspect, aimed at reducing the incentives for filing frivolous lawsuits. In the United States, some states have implemented caps on damages in medical malpractice cases to curb excessive litigation and reduce healthcare costs.[30]
Alternative dispute resolution mechanisms, such as mediation and arbitration, can provide an effective way to resolve disputes without resorting to litigation. This approach can help reduce the burden on the judicial system and provide a quicker resolution for patients and healthcare providers.[31]
Investing in patient safety and quality improvement is key to reducing medical errors and enhancing care.[32] Reforming malpractice insurance with risk-based premiums can promote better practices and decrease defensive medicine, alleviating high costs for healthcare providers.[33]
conclusion
The rise in medical negligence litigations has had a profound impact on healthcare systems worldwide. It has led to the adoption of defensive medical practices that prioritize legal protection over patient care, resulting in increased healthcare costs and potential declines in care quality. The health system of a country is deeply influenced by its political, social, and economic context, making a universal health system impractical. During global health crises, collaboration between citizens and governments is essential. In India, ensuring access to affordable healthcare and insurance is crucial, especially as rising costs challenge equitable distribution. The government and legislators must actively allocate healthcare resources and ensure accessibility nationwide.[34] This requires a blend of economics, law, and effective public policies.
It’s important to regulate private healthcare through self-regulation, government oversight, and external accreditation. Laws that guarantee patients’ rights and regulate healthcare are essential, but reducing medical malpractice and defensive medicine requires addressing the root causes, such as improving sanitation and reducing patient load on medical professionals.[35]
A balanced doctor-patient relationship can reduce economic waste and prevent frivolous lawsuits.[36] The fragmented health infrastructure in India results in inefficiency and high treatment costs. It is crucial for the government to recognize these issues and reform laws to make healthcare more affordable and accessible, especially for the underprivileged. Increased public awareness and enforcement of legal rights can lead to significant improvements in healthcare.[37]
Name of the Author: SALONI SANTOSH SANKHE
Name of the Institution: Sonopant Dandekar Shikshan Mandali’s Law College
Article Published by : Lester Vinal Lasrado- Editor | Medilaw.live
References:
[1] Kusum Sharma and others v. Batra Hospital and Medical Research Centre and ors (2010) 3 SCC 480
[2] Vidhikarya, 2020. Medical negligence and its compensation. [online] Vidhikarya. Available at: https://www.vidhikarya.com/legal-blog/Medical-negligence- [Accessed 19 June. 2024].
[3] Ratan Lal Dhiraj Lal, the Law of Torts, 441 (2nd Edn. 2005)
[4] Consumer Affairs, “Medical Negligence,” National Consumer Helpline, (last visited June 18, 2024).
[5] Samanta, A. and Samanta, J., 2003. Legal standard of care: A shift from the traditional Bolam test. Clinical Medicine, 3(5), pp.443-446.
[6] (2005) 6 SCC 1
[7] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
[8] M P Ram Mohan & Vishakha Raj, Medical Negligence and Law: Application of the Bolam and Bolitho Rules in India, 54 J. Indian L. 42 (2019).
[9] Poonam Verma vs Ashwin Patel and Ors., (1996) 4 SCC 332
[10] Cross v. Guthrie, 2 Root 90, 1794 WL 198 (Conn. Super. Ct. 1794)
[11] Robert J. Flemma M.D., Medical Malpractice: A Dilemma in the Search for Justice, 68 Marq. L. Rev. 237 (1985). Available at: http://scholarship.law.marquette.edu/mulr/vol68/iss2/2
[12] Indian Penal Code, 1860, § 304.
[13] Indian Penal Code, 1860, § 337
[14] (1995) SCC (6) 651; 1996 AIR 550.
[15] The Consumer Protection Act, 1986
[16] National Health Service Act 2006
[17] [2015] AC 1430,
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[19] IV (2011) CPJ 414 (NC)
[20] “In India, Medical Negligence Law Exhibits an Unhealthy Reliance on Expert Testimonies,” Caravan Magazine (Jan. 9, 2023), https://caravanmagazine.in/vantage/in-india-medical-negligence-law-exhibits-an-unhealthy-reliance-on-expert-testimonies.
[21] State of Haryana v. Smt Santra, (2005) 5 SCC 182, AIR 2000 SC 1888
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[23] Secretart Health v Anshika Kumari and another
[24] Arun Kumar Manglik v. Chirayu 11 (2019) 7 SCC 401
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[26] Chaudhary, Ankit & Barwal, Vijay. (2022). Defensive Medicine in the Context of the Indian Health System. Indian pediatrics. 59. 882-884. 10.1007/s13312-022-2649-4.
[27] Arun Kumar Manglik v. Chirayu Health and Medicare (P) Ltd, (2019) 7 SCC 401
[28] DBF Law, Paterson Inquiry and When Clinical Negligence Becomes Criminal, DBF Law, https://dbf-law.co.uk/paterson-inquiry-and-when-clinical-negligence-becomes-criminal/ (last visited June 25, 2024).
[29] Yung, Terence. (2024). The Strange Case of Dr Ian Paterson: An Analysis of Three Shortcomings in the Paterson Inquiry and Government’s Response. 10.13140/RG.2.2.16380.76168.
[30] National Conference of State Legislatures (NCSL) State Initiatives and Referenda. [accessed June 23, 2024]. Available at, http://www.ncsl.org/ncsldb/elect98/irsrch.cfm?recid=2341.
[31] Law Reform Commission, 2010. Alternative Dispute Resolution: Mediation and Conciliation. LRC 98-2010. [online] Law Reform Commission. Available at: https://www.lawreform.ie/_fileupload/reports/ADRReport.pdf [Accessed 22 Jun. 2024].
[32] Wallin, L., Boström, A. M., Wikblad, K., & Ewald, U. (2003). Sustainability in changing clinical practice promotes evidence-based nursing care. Journal of advanced nursing, 41(5), 509–518. https://doi.org/10.1046/j.1365-2648.2003.02574.x
[33] Medical Malpractice Closed Claim Study. Hyattsville, Md: Westat Incorporated; 1978. Contract No. 282-76-TQ. Prepared for the Department of Health, Education, and Welfare.
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[35] Preetam Kaushik, Medical Profession Losing Its Aura of Sanctity with the Rising Cases of Malpractice and Negligence, Business Insider India, (March 25, 2015). https://www.businessinsider.in/medical-professionlosing-its-aura-of-sanctity-with-the-rising-cases-of-malpractice-and-negligence/articleshow/46688610.cms
[36] Ganesh K. (2009). Patient-doctor relationship: Changing perspectives and medical litigation. Indian journal of urology : IJU : journal of the Urological Society of India, 25(3), 356–360. https://doi.org/10.4103/0970-1591.56204
[37] Substance Abuse and Mental Health Services Administration Chapter 7, “Vision for the Future: A Public Health Approach”. Available at: https://www.ncbi.nlm.nih.gov/books/NBK424861/ [Accessed 27 June. 2024].