In the Sunday Series today, we bring forth a popular article from our archives which provides a context for understanding the legal perspective in medical negligence cases.

Facing a lawsuit is best avoided, and that is true for anyone, including a physician.

Involving in a lawsuit is alarmingly taxing. It takes a lot of time and efforts and moreover it has the potential to cause a blow to a very established professional body of work. With that background, a basic knowledge of how judicial forums deal with the medical negligence cases can be an absolute necessity for doctors.Here we provide a context for understanding the legal perspective in medical negligence cases so that, if a claim does arise, the physician can react appropriately and know what to expect.

What confers the right of action to a patient for negligence?

Supreme Court has defined Duty of care to be followed by the medical practitioners. A person who holds himself ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted by a patient, owes him certain duties for eg. duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.A breach of any of those duties, gives a right of action for negligence, to the patient.
 

From the eyes of law

The Medical Practitioner must take a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require.

In order to decide whether negligence is established in any particular case, some of the foremost queries are:

• Whether the investigations are advised before confirming any diagnosis is the first and foremost query while deciding the cases of medical negligence.
• Whether investigations are carried out as per the standard norms of the medical practice?
• Whether the results of the tests carried out, are interpreted properly?
• Whether the possibility of other interpretation is ruled out?
• Whether administration of the doses/drugs were done under the supervision of qualified specialists as per the standard norms of medical practice?
• Whether the Hospital was equipped to do the procedure?
• Whether the records are maintained property? and
• Whether the record sought by the patient was given to him?
   

  ---

  The legal system relies mainly on documentary evidence in a situation where medical negligence is alleged by the patient or the relatives. Therefore, a medical record is a very important piece of evidence. Medical records include a variety of documentation of patients history, clinical findings, diagnostic test results, preoperative care, operation notes, postoperative care and daily notes of a patients progress and medications. The Medical Council of India in its Regulations, 2002 has answered many questions regarding medical records.

  While determining cases of medical negligence, the Court refers to the medical literature or at times seeks an opinion of the expert and of Medical Council also as per the requirement and merits of the cases.

  The principle for granting compensation is that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he would have to incur due to the disability caused by the event.

This article was first published on 21.07.17