Negligence is a breach of duty which one reasonable person can’t afford. Medical negligence is a breach which has been done by a medical practitioner or doctor while doing their course of employment. It is an offence under IPC, Tort and The Indian Contract Act.

As we see there is no direct answer or explanation to this question whether to blame practitioner during this pandemic or unstable time or not. Every coin has two faces to deal with both the situation whether doctor should be punished for there act or they should be exempted under certain situation because one needs to look the phrase where they have to perform their duties before making them punishable.

In the era of global pandemic, the doctors are the one who were the mashia to the whole new world of Covid-19. They were like soldier fighting day and night knowingly that the act can be fatal to their lives and dangerous for their family. With this act of selflessness help doctor are now believed to be next to the almighty. During the recent statements of Gujrat High Court[1], Doctors are personified to god on this planet. But what if god make negligence with their duty? Can such negligence be neglected when it comes to life of a person? If yes then up to what extent? Before any comments, we need to study the broad aspect and definition of the term Negligence.

Negligence

It is the civil wrong which is said to be committed when a person has either breached or has omitted his duty of care which he owes towards another due to which that person suffers some legal injuries. Person fails to exercise the standard care which a reasonable man could have exercised.[2]

Causing death by negligence

Whosoever became the cause of the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both[3].

Medical Negligence

In the profession like medical one need to take felicitous care and understanding because a heavy ton of responsibility lies on the practitioner while exercising his course of employment.

The general media and the people became more in this matter after the commencement of Consumer Protection Act in 1986. Further, the supreme court’s decision in Vasantha P. Nair v. Smt. V.P.Nair case of 1992[4] added the term clinical carelessness in this act.

According to this new jurisprudence Law in India, ingredients to medical negligence are: -

• Reasonable standard of supervision.
• Duty must be focused toward the patient.
• Act must be proven to be fatal or related to any serious issue to the person’s life.

Negligence cannot be fulfilled if any mentioned point is missed.

If the patient could not survive in spite of doctor taking each and every precaution and utilizing his every skills and knowledge then the doctor is free from every liability and doctor could not be criticize for any kind of dereliction of duty.

Moreover, if any patient has been signed of any legal paper before any operation which may result to his death in those situations also doctor could not be held liable and the doctor won’t come under scope of malpractice.

A person walking into a hospital for any kind of treatment is assumed to have given their implied consent to the possible consequences which may happen to him but this does not set doctor aside from all the liabilities.

In the present scenario each and every situation is different for everyone, there is a raise that the doctor should be temporarily be set aside from all liabilities and negligence.

How current situation overlapped the past?

      Doctors are facing two big problem which cause obstruction in their path of medical service.

• As Covid-19 is new type of virus strain, it become complex for doctors to understand the consequences and to acquire the knowledge.
• The patient past record of illness (hereditary, Diabetics etc.)

Covid test includes diverse procedure with different clinical and health organization which makes it difficult to understand the trouble cause to a person. 

Moreover, not only the doctors are facing issue with the proper gadgetry to tackle the ongoing war like situation, all these problems must be kept in mind before making them liable.

 Not just the hospital but state also not able to manage the necessary equipment from the outlets as they do not have sufficient stock for making this equipment.

 Before this pandemic, people have trust on the medical system of our country but due to the current scenario, people have developed trust issue and change the perceptive of this sector.

Every one of the experts who are working in regular climate as prior e.g., specialists, operationalists, individual experts won't be allowed any sort of security from liabilities since it is outside the circle of unnatural conditions being confronted and is under function as already. Likewise, every one of the individuals who are associated with illegal dealing for the sake of catastrophe are additionally outside this circle of security.

Clinical carelessness cases are on the rising for the most part due to the rapidly increasing number of clinical medical providers with inadequate framework offices, and fairly inferable from the insufficient capacities. The laxity of the overseeing body – the Medical Council of India – in carrying out thoroughly settled shows as for diagnostics and treatment has exacerbated the circumstance. The administrator is regularly discovered setting up safeguards and getting clinical benefits specialists of their misconduct. Likewise, patients and their families are continuously searching for reactions to legitimate fixes.

As seen in the current scenes, the rising number of deaths is due to the lack of reserve e.g., Hospital is having shortage of oxygen cylinder and ICU beds, these are the essential commodities which should be there in hospital to save a person life who is infected with this deadly virus.

If there is a death by any shortage of material then who would have to bear the expenses of the irreplaceable loss to his family, Doctor won’t be responsible in this case.

 Also, it has been seen in most of the time, the patient has been brought to the hospital when the condition become more severe and the complication have become irrecoverable. It become a challenging task for the doctors to save the patient from such severity this also led to biasness that the doctor did not taken proper medication leading to accident. This fact can be proved from the study conducted as out of the total cases, 52% cases died within 24 hours after being admitted to the hospital, whereas 32% patients survived for a period of 24-72 hours and 16% deaths were observed in patients surviving initial 72 hours[5].

Failure of the norms provided by the government of India 

It is of most outrageous significance to stay up with the latest with the latest government rules and regional polices, and follow them astutely. The clinical administer and the association is constrained by a feeling of honour to be set up to deal with all certainties rising up out of surrendering or treating a Coronavirus suspect or a good understanding. The affirmation or treatment should conceivably be performed if the centre is supported to treat Coronavirus.

Powerlessness to adhere to the standards would sure invite the annoyance of the public position bodies and antagonistic genuine outcomes.

There has been situation where the patient is treated as inhuman and in unpathetic ways. The quarantined patient has to run from the hospitals to save their life irrespective of their illness, these instances cause regretful situation.

The PIL was filed in High court of Allahabad (PIL No. 574 of 2020)[6] on which the judge decided to put committee and authorise person in every district as Nodal Officers who are intrusted to deal with these problems in PHCs and CHCs.  

What after negligence has occurred

• Burden of Proof: - The obligation is completely lie upon the complainant to prove the doctor was at fault.
• Plaintiff or the complainant has to establish the negligence of the doctors or hospitals. In India, the courts use “Bolam Test” to determine the medical negligence, this test is one which have been used in a broad range of carelessness, not only the clinical carelessness. There are three point which need to be satisfied to show the positive outcome, these are: -

1. It should check that there is proper standard of procedure.
2. It should check that the practitioner has proper training
3. It should have proven that the practitioner has taken proper procedure which a reasonable person does in that situation.

There is certain provision mention in constitution to safeguard the rights of the person/patient: -

If the specialist has been found to be guilty, he will be punished under these sections.

• Under Section 304-A of the Indian Penal Code, 1860, a person will be liable for any kind of rash and negligent act amounting to culpable homicide being done and shall be punished with imprisonment for a term which may extend to two years or with fine or both.
• Under Section 337 of the Indian Penal Code, 1860, The person will be awarded with imprisonment which could be extended to six months or with fine which may, if an act done by person is such that human life or personal safety of others comes under danger.
• Under Section 338 of the Indian Penal Code, 1860-, if a person commits rash or negligent act which became the reason for human life or personal safety of others comes under danger then the person will be punished with imprisonment for a term which could extend to two years along with fine.

There also have been provision to safeguard the rights of the practitioner mentioned under constitution: -

• Under  Section 80 of the Indian Penal Code 1860, this sections states that act will not constitute any offence if such act which happens without any criminal intention resulting in accident or misfortune if the act done is lawful and by lawful manner and also by lawful means taking into consideration proper care.
• According to Under Section 81 of Indian Penal Code,.1860- act will not constitute an offence if the act done is likely to cause harm and such act being done had no prior intention of causing harm and is done under good faith in order to avoid greater possible harm.
• Under Section 88 of the Indian Penal Code, 1860- if an act is being performed by a person in good faith lacking prior intention in causing such harm even if there has been knowledge that risk is involved in doing such act and there has been consent to the same by the patient then no liabilities arise.

Conclusion and suggestions

 

Clinical carelessness is because of quickly increasing of graph of the quantity of clinical benefits providers with the inadequate structure, and almost inferable from the lacking capacities and outdated data on clinical benefits specialists. The Medical Council of India in approving thoroughly settled shows with respect to diagnostics and treatment has exacerbated the circumstance. The regulator is routinely discovered setting up guards and guaranteeing clinical benefits specialists of their demonstrations, patients and their families are dynamically searching for a reaction to legitimate cures.

Even the courts are failing to provide uniform judgement in case of medical negligence. Subsequently, rising the clashing decision between courts including the apex court.

Another choice by the apex court has enough debilitated the cut-off for fixing obligation in clinical carelessness cases by seeing that where a clinical consideration capable may have made an off-base examination or determination, a comparable will not be identical to clinical carelessness.

Before any activities against the medical specialists there should be standard rules that should be set up and re-examined by the circumstances so no guiltless stay outside ambit of lawful help simultaneously there is need to save specialists from pointless liabilities and cases.

Albeit the current circumstances are remarkable it is by all accounts uncalled-for to put supreme liabilities on clinical specialists. There is a need to set a Base norm of care that ought to be endorsed by the public authority and ICMR (Indian Council for Medical Research) for patients tainted with Coronavirus.

 Following point may be consider to improve the current scenario: -

1. Discharge summary should have a brief history of patient illness.
2. Doctors or other medical staff should be liable for gross negligence, not minor, for the time being.
3.  Hospitals should acknowledge them with the sections 191 and 192 of the Indian penal code so that they know the consequences in case of any negligence.
4. There should be a fast-track court where an immediate decision should be given to the plaintiff in case of medical carelessness.

There is a proper need of an agency who look in the current time and analyse matters that has being arising and also critical analysis needs to be done before any actions and judgement are granted.

Amidst the weakness made by the COVID-19 pandemic, the legal authority is the sole image of wants which needs to change the genuine concerns of medical occupants endured by the shortfall of adequate clinical offices and the rising instances of clinical remissness. There are assumptions that fundamental advances will be taken by the Supreme Court, to save the certainty and any assumption for people in legal proceedings.