SAVE LIFE NOT THE MONEY

A very minor injury needs a medical attention …doctors are treated as a God in each part of World, whereas a person approaching a doctor expects the best knowledge of medical filed. The doctors have directed with some duties to perform , wherein in life and death of the patient is in his/her hand , the rights

and  duties are performed  and protected under the Consumer Protection act, 1986 .

The single mistake or negligence can risk to a life of person / patient. It is rightly said God gives life , but the command of God is followed by the doctor itself .  A person / patient for any minor issues  checks on the hospital with its reputation. The patient also has two fold  expectation from both the hospital and doctor. The doctor cannot always save the life of a patient  but his knowledge and skill can make ensure the life of the patient can be saved. The doctor should therefore have its best knowledge of the patient before performing any major operation , surgery or the treatment.

The  relationship of Doctor , patient and hospital is of trust. The breach of the trust in common language is said as Medical Negligence in the terms of Law.

Duty on the part of a hospital and doctor to obtain prior consent of a patient

There exists a duty to obtain prior consent (with respect to living patients) for the purpose of diagnosis, treatment, organ transplant, research purposes, disclosure of medical records, and teaching and medico-legal purposes. With respect to the dead in regard to pathological post mortem, medico-legal post mortem, organ transplant (for legal heirs), and for disclosure of medical record, it is important that informed consent of the patient is obtained. Consent can be given in the following ways:

1. Express Consent: It may be oral or in writing. Though both these categories of consents are of equal value, written consent can be considered as superior because of its evidential value.
2. Implied Consent: Implied consent may be implied by patient's conduct.
3. Tacit Consent: Tacit consent means implied consent understood without being stated.
4. Surrogate consent: This consent is given by family members. Generally, courts have held that consent of family members with the written approval of 2 physicians sufficiently protects a patient's interest.
5. Advance consent, proxy consent, and presumed consent are also used. While the term advance consent is the consent given by patient in advance, proxy consent indicates consent given by an authorized person. As mentioned earlier, informed consent obtained after explaining all possible risks and side effects is superior to all other forms of consent.

Whereas the patient in breach of above duties has a forth most right to file  a complaint under the Consumer Protection Act.

Medical Negligence  can be in any type  carelessness while delivering a child , carelessness while dealing with a surgery and many more.

RELATIONSHIP OF A DOCTOR AND PATIENT

The legal duty that a doctor has towards his patients becomes a service that he provides in return for money. In such circumstances the patient of the doctor is the consumer and the rights of every consumer are protected in the consumer protection act, which was founded on 24th December 1986. This act ensures safety for all the consumers from negligent or nasty producers, retailers, etc. the main objective of this act is to ensure that no consumer is being cheated or exploited by the producer and no harm is caused to them due to the negligent act of the sellers. The reason that doctor’s job is considered to be service is that, nowadays doctors treat patients only in return of money, therefore wherever there is transaction of money taking place the relationship of the two persons involved becomes a relationship of seller and buyer, therefore the patient automatically becomes a consumer and the requirement to protect his rights and interest arises simultaneously. This is the reason that consumer protection act came into being and the relationship of doctor- patient was included in it. This act provided a number of legal remedies for these injured consumers. Thus the patients of negligent doctors can not only ask for a remedy through a civil suit or a criminal suit but they can also take shelter under the consumer protection act, 1986.

To protect the Right of Consumer( a buyer or a seller) the act was enacted by honorable Supreme Court in year 2005. The act includes certain rights.

1.       The right to be heard

2.      The right to be assured

3.      The right to be informed

4.      The right to be protected

5.      The right to education

CASE STUDY /LIVE EXAMPLE

Barnett v. Chelsea and Kensington Hospital Management Committee

 Facts; in this case there were three workmen who suffered with violent illness after drinking tea. They were presented to the local cottage hospital, but the doctor was ill himself. The nurse phoned the doctor with the symptoms and the doctor advised that the men go home and see their own doctors. In the event one of the patients died and his widow filed a petition in the court against the doctor who advised the man to see his own doctor

Issue; whether the doctor had a duty of care towards his patient even though he did not treat him

Judgment; the court held that the doctor not only owed a duty of care to those who were presented to him in his casualty unit but that, in these circumstances he should have ensured that the patients were properly examined. Ultimately the court claim that the requisite standard of care was not maintained by the doctor.

WHAT ARE THE CAUSES OF MEDICAL NEGLIGENCE

·         FALIURE TO PROVIDE PROPER MEDICAL CARE

·         PRESCRIBING WRONG DOSAGE

·         PRE MATURE DISCHARGE

·         LEAVING SURGICAL INSTRUMENT INSIDE THE PATIENT’S BODY DURING SURGICAL OPERATION

·         OPERATING WRONG PART OF BODY.

Many hospitals this days work for only money purpose. The huge lump some amount is taken from the patient family by just keeping the person under ventilation for days long.  Minor injury is shown as a major injury and operations are conducted based on that. The bill of hospital is hit on the pocket of the family.

Inspired from Gabar is Back  and Ankur Arora Murder Case ,  the dead patient is operated for continuous hours and a huge bill is incurred in lakhs from the family and the death of a 10 year old child  due to medical negligence which is hidden from the family and said as lung collapse.

Under section 304 and 304A of INDIAN PENAL CODE , DEATH CAUSED DUE TO NEGLIGENCE OF ANY PERSON OR PROFESSION IS PUNISHABLE WITH IMPRISONMENT OF 3 YEARS AND A FINE OR BOTH. THE PUNISHMENT CAN EXTEND IF NEEDED. THE LICENSE OF THE HOSPITAL AND THE RELATED DOCTOR CAN BE CANCEL HOLDING SUCH ISSUES.

  In Poonam Verma vs Ashwin Patel the Supreme Court distinguished between negligence, rashness, and recklessness. A negligent person is one who inadvertently commits an act of omission and violates a positive duty. A person who is rash knows the consequences but foolishly thinks that they will not occur as a result of her/ his act. A reckless person knows the consequences but does not care whether or not they result from her/ his act. Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability. Thus a doctor cannot be held criminally responsible for a patient’s death unless it is shown that she/ he was negligent or incompetent, with such disregard for the life and safety of his patient that it amounted to a crime against the State .

A private complaint of rashness or negligence against a doctor may not be entertained without prima facile evidence in the form of a credible opinion of another competent doctor supporting the charge. In addition, the investigating officer should give an independent opinion, preferably of a government doctor. Finally, a doctor may be arrested only if the investigating officer believes that she/ he would not be available for prosecution unless arrested.

CONCLUSION

One has to hope that professionals will rise to the occasion and start discharging their functions with more care and responsibility rather than trying to hide under the shield provided by the court. Let not the profession be emboldened by the new shield, and turn less careful and inhumane in their dealings and treatment to the patients who approach them. If this happens, that will be a sad day for suffering patients. The new judgment, reading in many things not in the written law, would result in a serious blow to their rights. While it is necessary to save doctors treading the righteous path, it is also necessary to take to task those violating the oath that they took. Immunity to this group means suffering for vulnerable patients.