Increasing cases of medical negligence in India are mainly due to lack of knowledge of doctors and carelessness by healthcare providers. Another reason for this issue is the over expectations of patients for faster recovery. In both the situations, the doctor will establish his innocence, rather than the patient having to prove the doctor’s guilt, said Dr. BR Jagashetty, VP, Legal & Compliance, Medlife.com, former National Adviser (Drugs Control) to MoHFW, GOI and former Karnataka Drugs Controller.
“To succeed in a claim for negligence, a plaintiff patient must prove on the probabilities that the defendant doctor owed him a duty of care, but breached that duty by failing to exercise the necessary level of treatment. The patients need to specify failure of duty by the doctor and the exact cause of harm and injury,” he added.
Quoting the Supreme Court order, Dr. Jagashetty stated that negligence by medical professionals is treatment with a difference. To infer rashness on the part of a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence.
“A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice as per the medical laws, he is not liable to be negligent merely because a better alternative treatment was also available or a more qualified-experienced doctor would not have chosen to opt the practice or procedure which the accused followed,” said Dr. Jagashetty at a workshop on ‘Medical Negligence in India’ conducted by National Law School of India University, Bengaluru.
There are several causes of medical negligence like misdiagnosis where a condition is undiagnosed or an incorrect diagnosis is made. Surgical negligence comes in when the wrong operation is performed, foreign objects are left in the body organs, cosmetic surgery causing scarring and disfigurement and an infection caused by poor hygiene. Then there are also prescription and medication errors, he said.
Another area of medical carelessness is during administration of anesthesia where specialists fail to investigate the patient's medical history for possible complications or failing to inform the patient of the risks involved if pre-operative instructions are not followed.
Medication errors are also common when the doctor prescribes an incorrect dosage on the prescription or if the prescription is correct and the nurse administers a wrong drug. Equipment malfunction and malpractices are also serious issues. When the patient succumbs to treatment or surgical intervention it becomes a criminal negligence where it goes beyond compensation and doctors are prosecuted in a court for culpable homicide. “The challenge before the advocates and consumer forums is to differentiate medical neglect and over expectations from patients,” said Dr. Jagashetty.