Law on Medical Negligence in India

justice eludes the victim

The law on medical negligence in India is inherited from English Law which is derived from the case of Bolam v. Friern Hospital Management Committee also called as Bolam's Test. Though English courts have long ago departed from Bolam's test and evolved much more balanced jurispridence - e.g in Bolitho v. City and Hackney Health Authority which though followed Bolam's test but departed from it on the grounds of logic and reasonableness. In this case 5 of the eight expert witnesses testified of intubating the patient while three gave the opinion against intubation. The judge found the reasons of the those who testified against intubation logical and reasonable thus difficult to ignore. Hence not just in India the law of medical negligence is complex, perhaps apart from the USA, everywhere else it's the same.

One of the other landmark cases in medical negligence is Chin Keow v Government of Malaysia, where the doctor was found to be negligent for administering Penciling injection without testing allergy, but in cases where the doctor gives false testimony, concoct false evidence and tamper with prescription and medical fraternity unreasonably decides to the rally support behind the doctor, the application of Bolam's test also becomes very difficult.

The much criticised American law on medical negligence in such cases take more punitive approach. An American court awarded the family of victim compensation of USD 3.4 million for death of their child and tampering of records by medical practitioner to cover his negligence.

Unfortunately, in cases of medical negligence, the legal system does not differentiate between negligence, malpractice, and willful misconduct, even though each of them has subtle distinctions.

Consider a scenario - A doctor who practices in an area where people have modest incomes keeps his fees low. However, to maximise his profits, he administers an injection, such as Diclofenac Sodium, which is not only inexpensive but also provides rapid relief from body pain. Consequently, he charges a fee for this injection, aiming to maximise his earnings. As a result, he not only earns a good income but also establishes a reputation for being highly skilled. While this injection is generally safe, there is an extremely rare chance, about one in a million, that it may trigger Anaphylaxis, a sudden and severe allergic reactions that could potentially result in immediate, painful death. While theoretically there may be a slim chance of survival, considering the type of practice the doctor operates, practical survival is unlikely.

Of course it was an unnecessary injection. The death of the patient is not the only problem the family of the deceased face, moment they allege medical negligence and seek justice, their real problem begins. According to the prevailing law The burden of proof in medical negligence cases lies on the patient "The patient must prove that the medical practitioner has fallen short of the standard of reasonable care, proved by evidence and material on record."

Res Ipsa Loquitur would not attract and the family of the patient will be in vicious circle, the doctor would continue to practice the way he had been and any attempt by the family to confront will result in counter blast FIR from the doctor against the deceased's family.

If the family manages to escalate the complaint to the Chief Medical Officer, the medical community is likely to rally in support of the doctor. They may provide a report that could lead to the doctor's exoneration or clearance of any wrongdoing. Secondly, the prescription is given to patient after treatment, in this scenario, since the patient dies and the family is grieving, the doctor has whole lot of time in the world to rewrite the prescription that aids to get a favourable report from medical negligence board.

The scenario described above highlights a significant challenge in cases involving medical malpractice or wrongdoing, where the burden of proof can be particularly difficult for the patient's family to discharge. This challenge can be due to various factors, including the influence of the medical community, the difficulty in gathering evidence, and the presumption of innocence in favour of the doctor. In such cases, the police do not register an FIR (First Information Report) hence there are extremely limited avenues for investigation, it can indeed be challenging for the family to gather sufficient evidence to support their allegations.

Efforts to address this issue craves for drastic and urgent legal reforms to provide better avenues for addressing medical malpractice cases, ensuring that the burden of proof is more balanced and that the interests of both the patients and the doctors are taken into account.

If doctors wish to retain their special privileges, they must refrain from invoking their professional fraternity and portraying themselves as victims in cases where clear negligence, malpractice, or professional misconduct is evident. Instead, they should be prepared to honestly acknowledge and address such issues without reservation, because while there are increasing cases of medical negligence there are increasing cases of attacks on doctors too. When the scope of justice is not there what can one expect from the victims who suffer the consequences of lack of duty of care.