Medical negligence laws in India is in the evolutionary stage which has not only been linked to the criminal liability of a medical practitioner but has also been linked to deficiency of services leading to civil consequences of damages under the civil laws as well as consumer laws. Medical negligence laws in India are as such not defined under any statute but the same has been covered under the common laws like the Indian Penal Code, Consumer Protection Act. Various judgments of the National Consumer Disputes Redressal Commission, Supreme Court of India have further defined the Medical Negligence Laws in India in their pronouncements.
Medical negligence laws in India under the Indian Penal Code:
Indian Penal Code is the basis criminal law contemplating various provisions for punishments under various categories of offences committed in India. Some sections related to the medical negligence laws in India from the IPC Section 52, Section 80, Section 81, Section 83, Section 90, Section 91, Section 92, Section 304-A, Section 337, Section 338.
A bare reading of the aforesaid sections would show that there is no difference between an ordinary crime committed by a criminal and the act of negligence done by a doctor while treating his patient. All the circumstances lead to the rash and negligent acts done by the medical practitioner while treating his patient. A classic example is the act of a physician who can be charged with criminal negligence due to death of his patient from inadequate doses of anesthesia and the said act could land him in criminal prosecution like an ordinary criminal. The medical negligence laws in India are thus based on the criminal prosecution of the medical practitioner like an ordinary criminal and the process followed for such prosecution is the same as being followed for prosecuting an ordinary criminal. The matter is reported to the police and the police conducts the inquiry in the matter and files the charge sheet in the matter if required and even arrests the medical practitioner based upon the facts of the case.
Medical negligence laws in India under the Indian criminal laws is recognized as the classic case of gross medical negligence which led to the damage to the body of the patient which could only be due to the gross lack of competence or skills or clear case of negligence by an ordinary man. The classic case which is held to be the landmark on the issue of medical negligence held?Gross lack of competency or gross inattention, or wanton indifference to the patient safety, which may arise from gross ignorance of the science of medicine and surgery or through gross negligence, either in the application and selection of remedies, lack of proper skill in the use of instruments and failure to give proper attention to the patient.
Obtaining bail: Once the criminal prosecution is launched by the police the medical practitioner is under threat of being arrested by the police hence the first and foremost important thing for him is to obtain bail either from the court or from the police based upon the facts of the case. If the sections imposed upon the medical practitioner are bailable , then police can admit him on bail but if the sections imposed upon him are non bailable them he has to approach the courts for bail which can be either anticipatory bail or a regular bail from the court depending upon the facts of the case.
Medical negligence laws in India under the civil laws:
Medical negligence laws in India under the civil laws are mainly covered under The Consumer Protection Act, 1986 which holds the medical practitioner responsible for deficiency of services based upon the facts of the case. The result of holding the medical practitioner guilty under the civil laws is the award of damages to the patient or award of compensation to the patient by the courts. The quantum and mode of damages is often fixed by the courts based on the facts of the case and there are a number of judgments on this issue.
Proceedings before the civil courts:
The launch of proceedings before the civil courts under the Medical negligence laws in India starts with the filing of the suit before the civil court which can either be for claiming damages from the medical practitioner or for claiming any other relief related to the alleged act. The proceedings before the civil court are decided by filing of the written statement by the medical practitioner and after the leading of the evidence before court during which process the court can summon the evidence of the experts for deciding the said matters. The final outcome of the proceedings before the civil court is by way of a decree which is passed by the court based on the facts of the case and after considering the entire evidence in the matter.
Proceedings before the consumer courts:
Medical negligence laws in India is now mainly under the Consumer Protection Act, 1986 and a complaint under the said act is filed by the aggrieved person on which the consumer court issues notice to the other party to file his reply and subsequently based on the evidence of the parties or the opinion of the experts on the issue, the matter is decided by the consumer court finally and the order is passed on the complaint. The consumer courts have been holding the medical practitioner guilty of medical malpractice, medical negligence and unfair trade practices and has been awarding compensation to the aggrieved persons accordingly, based on the facts of the case. Another important aspect of the matter is the determination of the negligence by the hospitals which may include the negligence of the doctors, para medical staff or any other person associated with the medical services. Now the medical negligence laws in India is based on the Consumer Protection Act, 1986 which has become the basis of several judgement on this point. In several recent judgments in the fields of Medical Negligence Laws in India, the courts have held the medical practitioners , hospitals and other institutions guilty of various kinds of medical mal practices, unfair trade practices and medical negligence leading to criminal prosecution besides civil liabilities.