28 Aug Defence against medical negligence
Public awareness of the medical negligence is growing rapidly all over India.
The medical fraternity is facing complaints with their treatment, facilities and professional methods. After the enactment of Consumer Protection Act, 1986, people are filing the medical negligence cases against the Medical Practitioner and Hospital for claiming the compensation. In order to get the claim, the Claimant should prove that while treating the patient, the doctor has breached the duty to take reasonable care due to which the patient has suffered injury.
Sometimes, the doctor treated his patient with best efforts and as per medical norms but due to unsuccessful operation, the patients or their legal heirs filed cases against the doctor in the name of medical negligence, in that case there are some defences available to the doctor where the doctor is not liable for the medical treatment. In the present article, we will discuss about the defences available to the doctor against the medical negligence.
Defences available for the Medical Practitioner
There are mainly 3 defences available against the Medical Negligence:
- The Medical Practitioner has to prove that there is no existence of duty of care towards the patients.
- In case the Medical Practitioner treated the patient then, the Medical Practitioner has to prove that he has conducted the treatment to his best effort with due care and the course of treatment which he chooses to perform is suitable in the situation of case and as per medical norms.
- Another defence which is available with the Medical Practitioner is to prove that the patient did not suffer any injury from the treatment performed by him.
Sometimes, the medical practitioner is not the one to blame for an injury caused after the treatment. Even after taking the proper treatment, the injury is caused due to the negligent act done by the patient. In that case, the medical practitioner has a valid defence against the medical negligence that the injury is caused due to the negligent act of the petitioner itself. For example: if a patient mixed the prescription given by the medical practitioner or failed to disclose his or her medical history, the medical practitioner may be off the hook for any injuries that result.
The medical practitioner has a defence under Section 87 to 93 of Indian Penal Code (in short IPC) to protect themselves from the criminal liability. These sections of IPC give defence to the medical practitioner against the criminal liability where injury caused by the medical practitioner when the consent is given either by the injured party or their legal heirs.
In the landmark judgment of the Supreme Court in Achutrao Haribhau Khodwa & Others vs. State of Maharashtra & Others, whereby the Supreme Court clearly observed that in the field of medical, skills are vary from doctor to doctor and there are more than one method of treatment available and all are admissible. Medical Negligence on the part of doctor cannot be attributed so long as he is performing his duty with utmost care and best of his ability. Therefore, the doctor cannot be held liable merely on the ground that the doctor choses one course of treatment which is also acceptable in the medical profession on the other course of treatments available.
The National Consumer Dispute Redressal Commission in its own judgment of M. Kochar vs. Ispita Seal, observed that if the doctor brings to his task a reasonable degree of skill and knowledge and exercise a reasonable degree of care according to the circumstances of each case, then no success in the treatment cannot be constitute medical negligence.
Conclusion
No Comments