Medical Negligence and Malpractice in Healthcare industry

1. P
1
Medical
Negligence &
Liability of
Hospital
DMIMS (MHA BATCH- 2021)
NAHEEDA KHAN
40627 |

2. Contents
• Introduction
• Objectives
• Research Methodology
• Medical Negligance in India
• Conclusion
• Recommendations

3. Introduction
The medical profession is viewed as a noble
responsibility since it aids in the preservation of
life. A patient usually seeks out a doctor or
facility based on their reputation. A patient’s
expectations are twofold, namely, physicians
and hospitals. Both are expected to give
medical treatment using all their knowledge
and ability, and they are also required not to
hurt the patient in any way due to negligence,
carelessness, or reckless behaviour on their
part. Though a doctor may not always be able
to save their patient’s life, they are required to
apply their specific knowledge and ability in the
reasonable way possible while keeping the
patient’s best interests in mind. A doctor’s and
a hospital’s failure to fulfil this commitment is
essentially a tortious liability. A tort is a civil
wrong (right in rem) as opposed to a
contractual duty (right in personam), and a
violation that requires court intervention in the
form of monetary compensation.
The right of a patient to get medical
care from doctors and hospitals is thus
fundamentally a civil right. Because of
informed permission, payment of a fee,
and performance of surgery/providing
treatment, among other things, the
relationship takes the shape of a
contract to some extent, but key tort
features remain intact. When a hospital
fails to check the qualifications of an
attending physician before awarding
him or her privileges at the hospital, or
when it enables a physician who it knew
or should have known was incompetent
to treat patients at the hospital, it may
be held accountable for its own
negligence.
This Project addresses the matter in hand with the help of various court
judgments and published articles.

4. Timeline
The earliest reported case of medical malpractice was
Stratton vs. Swanland which was decided in 1374. A
surgeon tried to repair a woman's mangled hand. The
woman claimed the surgeon said he could cure her, but
after the procedure she was still deformed. The case was
dismissed on a procedural error, but the judge set ground
rules for many future cases. The judge said that physicians
could be held liable when they are negligent, but if
properly treated, they would not be liable just because it
did not cure the patient.
Just four years after George Washington was
inaugurated, the first malpractice case was
reported in the United States. The plaintiff claimed
a doctor promised to do an operation skilfully but
did the opposite. The plaintiff's wife died as a
result. He won the case and received 40 English
Pounds.
The American Medical Association is
currently the largest organization of
physicians and medical students in the
United States. A resolution by Dr.
Nathan S Davis led to the formation of
the association two years later. They
went on to set uniform standards for
medical education, training, and
practice as well as the world's first
national code for ethical medical
practice.
1374 1794
In 1984, 18-year-old Libby Zion was admitted to a New
York hospital and treated by two residents. Her
conditions worsened throughout the night, and she
died. Her father sued, claiming the doctors were
overworked and negligent -- he won the case. In 1989,
New York passed laws to limit the number of hours
residents and doctors could work, laying the
groundwork for nationwide reforms.
1980s
1847

5. Objective
• To analyse and describe the relationship between
medical errors and medical negligence.
• To review empirical findings regarding the
association between malpractice liability risk i.e.,
the extent to which clinicians face the threat of
being sued and having to pay damages
• Healthcare quality and safety.

6. Research
Methodology
• This Project has adopted a purely doctrinal method of
research. Extensive use of the online library and the
internet sources.
• Systematic search of multiple databases for studies
published between 1985- 2022

7. Medical negligence
& MalPractice
Medical negligence is
concerned with the law of
torts, specifically deals with
the tort of negligence which
is exactly the cause of
action for most patients
against the treatment of
their doctors.
In this, the degree of
suffering to the patient is
much less than the medical
malpractices.
Medical malpractices refer to
the larger category of
misfeasance done by doctors
such as inappropriate
behaviour towards patients
or behaviour which brings
the profession into
disreputation.
The degree of suffering in
medical malpractice is much
greater than the medical
negligence.

8. Medical
Negligence in
India
For years, the medical profession in India had neglected the
warning symptoms. Shielded by flaccid regulatory authorities
and a near comatose judicial system, the four lakh-strong
community of doctors was almost immune to charges of
malpractice.
Even when the problem grew to serious proportions, they
failed to resort to corrective surgery.
Now, aggrieved patients are beginning to wield the scalpel.
Especially after a ruling made by the National Consumer
Disputes Redressal Commission that medical services were
liable under the powerful Consumer Protection Act of 1986.
Here's An Alarming Statistic: 98,000 deaths from medical
injuries occur in India every year, reports an ongoing NABH
study. Here's another: medico-legal cases have gone up by 400
per cent in the Supreme Court in the last 10 years, according
to legal resource, Manupatra.
Patients are afraid of an uncaring medical system. Doctors are
terrified of assertive patients. Hospital life is under scrutiny,
and with it the authority and autonomy of doctors.

9. Compensation for
Medical Negligence
The liability system has two ostensible goals: to compensate the negligently injured, and to
deter negligent behaviour. In health care, the tort system allows individuals who are injured
through the negligence of their health care provider to seek compensation through litigation. In
theory, negligent behaviour is deterred by making the negligent party bear the burden of the
award. Medical malpractice claims are mainly initiated in state courts. Although laws vary by
state, in general the legal standard for malpractice has four elements:
• The presence of a physician-patient relationship that establishes the duty of care;
• An adverse outcome (actual injury or harm);
• Negligence by the provider (failure to meet the standard of care); and
• Direct causality between the negligence and the adverse outcome In the context of medical
malpractice, negligence depends on “conduct which falls below the standard established by law
for the protection of others against unreasonable risk of harm.”
For doctors and other health care providers, this standard means that doctors should provide the
level and type of care that is customary and usual in the medical community or in their specialty
field. The most common claim for medical harm is the medical malpractice claim, which applies
directly to the negligent physician. However, medical malpractice is not the only legal option
available to claimants seeking redress for damages.
Physicians are also open to claims of intentional torts.
Medical device and pharmaceutical manufacturers can be sued under such legal doctrines as
product liability, negligence, strict liability and breach of warranty. Hospitals and managed care
organizations, which may be exempt from many malpractice claims, can be sued under the
principles of vicarious liability, joint and several liability and corporate negligence.

10. Hospitals and medical
negligence
Hospitals in India may be held liable for their services individually or vicariously.
They can be charged with negligence and sued either in criminal/ civil courts or
Consumer Courts.
As litigations usually take a long time to reach their logical end in civil courts,
medical services have been brought under the purview of Consumer Protection
Act,1986 wherein the complainant can be granted compensation for deficiency in
services within a stipulated time of 90 -150 days.
Cases, which do not come under the purview of Consumer Protection Act, 1986
(e.g., cases where treatment is routinely provided free of cost at non-government
or government hospitals, health centres, dispensaries or nursing homes, etc.) can
be taken up with criminal courts where the health care provider can be charged
under Section 304-A IPC for causing damages amounting to rash and negligent act
or in Civil Courts where compensation is sought in lieu of the damage suffered, as
the case may be.
Hospitals liability with respect to medical negligence can be direct liability or
vicarious liability. Direct liability refers to the deficiency of the hospital itself in
providing safe and suitable environment for treatment as promised.
A hospital can be held directly liable for negligence on many grounds. Failure to
maintain equipment in proper working condition constitutes negligence. In case of
damage occurring to a patient due to absence/ non-working equipment e.g.,
oxygen cylinder, suction machine, insulator, ventilator etc. the hospital can be held
liable.

11. Vicarious liability of
hospitals
The principle of vicarious liability is
based on a latin maxim “qui facit per
alium facit per se” which describes that
the one who acts through another act
in his or her own interest.
The patient only requires diligent and
proper care, if any of the staff of the
hospital is negligent in the
performance of their prescribed work,
the hospital will be held liable on the
negligent conduct of even borrowed
doctors for specific performance of
certain operations.
This principle was established in the
case of Aparna Dutt .V. Apollo
Hospital Enterprises Ltd. (2002
ACJ 954 (Mad. HC)
Hospitals have been also held
liable for not providing adequate
medical facility as it was held
in Paschim Bengal Khet Mazdoor
Samity and Ors. vs State
of Bengal(1996(4)SC260).
Hospitals are also held
vicariously held liable if they are
not able to provide proper
sanitation facility, as it happened
in Mr. M Ramesh Reddy .V.
State of Andra Pradesh [2003 (1)
CLD 81 (APSCDRC).
Hospitals can be
charged with
negligence for
transmission of
infection including
HIV, HBsAg, etc. if
any patient develops
such infection during
treatment in the
hospital and it is
proved that the same
has occurred on
account of lapse on
part of the hospital.

12. Conclusion
On the scrutiny of leading medical negligence cases of
India, certain principles should be taken into consideration
while pronouncing the judgment in medical negligence
cases.
The hospital administration is accountable not only for
their nurses, physicians, and other professionals but also
for anaesthetists and surgeons who practice independently
but admit/operate a case in the hospital premises.
It makes no difference whether they are full-time or part-
time, permanent or temporary, resident or visiting
consultants.
The hospital administration is normally held accountable
for any carelessness on the part of such workers.
Patients go to the hospital and tend to get hospitalized
relying on the hospital to provide medical services for
which they pay a price.
The hospital in return, therefore, is required to offer such a
level of secured medical services, and in the event of a
deficit in service, or where the surgery was performed
without due care and caution, the hospital must be held
culpable.

13. Recommendations
1.
Negligence should be
guided upon the principle
of reasonableness of
common man prudence
and negligence must be
established in order to give
the compensation in
certain cases.
4.
When there is higher risk
involved and greater success is
involved and lesser risk with
higher chances of failure, the
facts and circumstances of the
individual case should be taken
into the consideration
2.
5.
No negligence will apply
on medical professional,
when he performs his
duty with the utmost care
that should be taken, and
he had taken all the
precaution.
3.
A medical professional can
be only held liable, when the
standard of care is
reasonably is less than the
reasonable care that should
be taken from a competent
practitioner in that field.
6.
Medical professional should
not be harassed unreasonably,
and unwanted apprehension
and fear should not be created
on the medical fraternity, they
should be given some liberty in
certain peculiar situation where
they need to make their
judgment without any
apprehension freely.
Medical profession requires
certain degree of skill and
knowledge, so the standard
of care in cases of medical
professional is generally
high and should also be
considered while giving the
judgment.

14. Biblography
https://indianlegalsolution.com/growing-medical-negligence/
http://indpaedia.com/ind/index.php/Medical_malpractice:_India#Unethical_even_if_consensual:_MCI
https://www.jec.senate.gov/public/_cache/files/8a69758b-2529-41dc-b91d-600ab26a2913/liability-for-medical-
malpractice-05-06-03.pdf
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779962/
https://law.stanford.edu/wp-content/uploads/2020/01/jama_mello_2020_rv_190012.pdf
https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-78-6-Arlen-MacLeod.pdf

15. Thank You