Ms. Atishaya Kaushal, Advocate
(9891952134/atishayakaushal@gmail.com)
LEGAL LIABILITY RELATED TO ANY AUTHORITY WITH RESPECT TO MEDICAL MALPRACTICE
The duty of care expected to be exercised by a doctor requires the ordinary prudence to discharge professional duties. Breach of the ordinary prudence resulting in inconsequential damages gives a cause of action to the aggrieved party to sue.
Some of the health issues were dealt with by The Law Commission of India in some of their reports and enlightened the various connected issues, Report No.196 in 2006 (on terminally ill patients), Report No.201 in 2006 (on accident victims & women in labor), Report No. 228 in 2009 (on assisted reproductive technology & surrogacy) are few such reports with in-depth analyses patient care, medicare and protocols, and practices.
For any alleged breach of duty amounting to medical malpractice, normally, and concurrently, proceedings for:
(i) Recovery of pecuniary damages may be initiated by way of a civil suit for recovery or under the summary jurisdiction of the Consumer Protection Act, 1986. But the burden of proof of negligence, carelessness, or insufficiency generally lies with the complainant. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. Although under the summary jurisdiction of the Consumer Protection Act, 1986, the initial burden is on the complainant, unless off-loaded by a case falling under res-ipsa-loquitor, the minimum standard of evidence cannot be swayed away from the rule of “preponderance of probabilities”.
(ii) Disciplinary proceedings before the State Medical Council may be initiated.
(iii) for grievous injury or death, criminal proceedings under the Indian Penal Code may also be filed, however, the delinquency alleged and the standard of proof in a criminal trial is of “gross” nature.
Other than the aforesaid adjudicating bodies, patients have also approached the State Human Rights Commissions.
In the Districts, the Chief Medical Officer or the Civil Surgeon has the competence to give an opinion on complaints made directly or referred by the police or other authorities.
Similarly, the Directorate General of Health Services of the states exercises regulatory control over the hospitals and nursing homes.
PCPNDT Act violations also lead to legal proceedings.
POSCO Act also creates obligations of doctors while examining juvenile patients.
In Parmannand Katara versus Union of India, medical ethics were relied upon to attend to the victim of accident or emergency without waiting for legal formalities, “A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients of necessary medical care.
Currently, by a violation of the MOH&FW issued COVID guidelines, if any hospital, nursing home or clinical establishment is found active in the chain for the spread of coronavirus from its premises, staff, co patients in any manner whatsoever, such hospital may be held liable to be prosecuted and the Government of India, the State Government, the District & Sub Divisional Magistrates or the competent authority, may commence the process for registering of FIR against the establishment and owners of the hospital or nursing home under the relevant provisions of the Indian Penal Code, Epidemic Diseases Act, 1897 & the Disaster Management Act, 2005.
Comments
Post a Comment