A doctor is considered next to the almighty God because of his job of saving lives. But that does not mean that the doctor cannot commit any mistake or he is immune of any liability resulting from the commission of any such mistake. Medical malpractice or negligence arises when the prescribed doctor commits any such mistake who in his position is not expected to have caused that injury. The people who suffer from such sort of injuries do have a recourse available for them under some special rules as laid down by the act governing medical negligence.
In a landmark judgment Indian Medical Association v VP Shantha, 1995, the Supreme Court brought the medical profession within the ambit of “service” which meant that the victim can sue the doctor or the hospital responsible for causing him some injury. As of today, any relationship between a doctor and his patient is completely contractual and both the parties to the contract will be subject to some liability if either party fails to fulfil his side of the contract. However, it must be noted that no liability on part of the doctor or hospital arises if the service rendered is entirely free of cost or the patient has just paid the registration fee. But if the patient’s charges are waived off because of their incapacity to pay, the patient will still be treated as a consumer and has a recourse available under the Consumer Protection Act, 1987.
The recourses available to a victim in this case is not only limited to Consumer Protection Act but extends to tort law as well. In this case, the entire onus of proving the negligence on part of the doctor lies on the patient. There are times when the doctor because of his own negligence causes the sufferings of the patient. Examples may include transfusion of blood of a different blood group or leaving a piece of equipment in abdomen. Tort law provides recourse to patients even if services rendered to them are free of cost.
The doctor may also be held responsible under the section 304A of the Indian Penal Code. Section 304A states causing the death of someone due to a rash or negligent act. However, the standard of negligence to be proven in this case must be so high that it significantly proves gross negligence or recklessness. Mere lack of necessary care is no ground for filing a complaint under 304A. A doctor can also be held liable for causing hurt or grievous hurt under IPC. However, sections 87,88,89 and 92 provide some immunity to doctors who acted in good faith and for the patient’s better health.
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