May 13,2022 | 5 min read

MEDICAL NEGLIGENCE | CONSUMER PROTECTION ACT, 2019 | Guest Series by Lawyered

INTRODUCTION:

    ‘Medical Negligence’ in simple terms refers to the improper treatment or unskilled treatment given by the medical practitioner to its patient. The definition of medical practitioner is wide enough to include within its ambit a nurse, physician, surgeon, pharmacist etc. All of them have to take standard duty of care although a simple lack of care or a lapse in judgment on the part of a medical professional is not considered negligence. Because a better alternative course of treatment was available or a more experienced doctor would not have resorted to that procedure, the doctor cannot be held accountable for negligence if he follows protocol that is consistent with current medical practice.

Bolam Test and Bolitho Test

The case of Bolam v Friern Hospital Management Committee raised the issue of how much care is actually appropriate, given that different medical specialists and practitioners had differing opinions on the reasonableness of the established practise. As a result, the Bolam Test was developed to determine the proper level of care and diligence required of a trained medical professional. According to the guidelines, if the medical professional's level of care is declared reasonable by a reputable body of medical experts, the professional's conduct is not considered negligent. However, after the role of logic and rationale in the decision of the deciding medical body was called into question in the case of Bolitho v. City and Hackney Health Authority , the Bolam Test's efficacy was questioned, and the courts in England eventually avoided using the test after 2001, the same year the first reference to the Bolitho Test was made.

However, India continues to use the Bolam Test, which is still valid until the judge determines that the medical body's conclusion is not backed by any reasoning. 

Foreseeability and Proximity

This idea describes the responsibility of care that is expected of a person, i.e., to avoid acts or omissions that an ordinary person may properly anticipate. This does not mean that every person who is likely to be injured by someone's act will fall under the purview of foreseeability; rather, only those who are directly and closely affected by one's act, and it is reasonable to expect harm to them in the event of negligence on his part, will fall under the purview of foreseeability.

The proximity concept asserts that “relationship between the parties so that culpability in negligence may be imposed is just and reasonable.” It was established in Hedley Bryne & Co. Ltd. v. Heller & Partners, that when a party seeks information from someone with special skills and trusts him to exercise due caution and care, negligence on the part of the expert will result in a breach of duty, even if there was no malice intention on his part.

Medical Services Under the purview of Consumer Protection Act, 2019:

The new Consumer Protection Act came into effect in June, 2019. Section 2(42) of the act defines ‘services’ however the section clearly does not include ‘healthcare’ within its ambit. The word has been not specifically included but not even excluded because of the words of the section which clears that the services are not restricted and limited to the meaning as given but may also include definitions which may have the same meaning and effect. By this, the legislature has created an ambiguity as to the “healthcare” services, whether included under the Act or not. 

However, the Supreme Court while laying down the law upon the relevancy of Consumer Protection Act, 2019 on services rendered by the doctors held that the doctor who has drawn salary from the hospital but rendered his services for free shall not fall under the Consumer Protection Act.

Suggestions to avoid Medical Negligence

There are some suggestion through which the doctors can be can avoid falling in the vicious cycle of lawsuits under  Medical Negligence :

  1. When there would be effective communication from the side of the doctors to their patients regarding their illness or disease.

  2. Trying to establish friendly and healthy relationships with the patients.

  3. The doctor and all the medical practitioners have to be thorough with patients' medical history whenever operating etc.

  4. Set a high standard of practice and lay down the benchmark rules for the practice of the profession. 

  5. Be up to date with the new developments in the medical profession

  6. Must have a knowledge of informed consent of the patient. 

  7. Must complete up to date documents and records of the patient’s medical history to  be read and researched upon.

  8. A regular follow-up with the patient is a must whenever treating them.

  9. Meeting the expectation of the patient is also necessary.

  10. Whenever practicing, practice with an open mind setup.

  11. Always seek help whenever you feel that your experience and knowledge is not enough to handle the situation.

  12. Avoid developing a situation where you are not at a mental peace while performing operations/surgeries on the patient.

  13.  To kindly inform patient that they can change their decision anytime

  14.  To kindly inform patients that they have a right to seek a second opinion.

  15. A regular and systemic medical and clinical audit

 

Keywords

Medical negligence, medical, doctor, patient, treatment, clinical negligence, medical specialist, consumer protection


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ABOUT THE AUTHOR


Sagar Panghal

Sagar Panghal has done his graduation from Symbiosis Law School, Pune and currently pursuing PhD in Criminal Law. He is a Star Educator on Unacademy and teach young law aspirants for law entrance exams throughout India. He is a writer too and written books on CLAT and Judicial Services Exams under his own Publishing House by the name of Panghal Publications. He has worked in CID Maharashtra and selected for NIRF- A methodology invented by Ministry of HRD.

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