“Of all forms of inequality, injustice in human care is the most shocking and inhumane”
Medical Negligence or Medical Malpractice is synonyms to each other. In simple language, it means improper or unskilled treatment of a patient by a medical practitioner. In a landmark judgment of Indian Medical Association v. V.P Shantha and Other III (1995) CPJ 1 (SC), there were some exceptional guidelines which was laid down by the Supreme Court in case of medical negligence and defined efficient of consumer protection that: a) services that have been rendered to a patient (free of cost) by a medical professional would not fall under the definition of “service” under the Consumer Protection Act, 1986. In another landmark judgment of Malay Kumar Ganguly v. Sukumar Mukherjee AIR 2010 SC 1162, the supreme court in this case discussed medical negligence opined that “Failure to act according to standard, reasonable, competent medical means at the time will not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he has. Failure to use due skill in diagnosis with the result wrong treatment is given would be medical negligence”.
As, we all know that in 2019, pandemic hits in worldwide nation and today it is destroying the lives of people & families. Due to outbreak of pandemic, the beds in hospitals are full and for treating the covid patients, hospital needs highly skilled doctors. Today, we are at “war” with the pandemic which destroy many lives. The Covid-19 pandemic has brought health care sector under unprecedented focus; on the other hand the people are referring “doctors” as “warriors” but on the other, there are constant reports against the medical negligence.
Medical Negligence cases are rapidly increasing due to rapidly proliferating numbers. The cause of the medical negligence is due to the doctors, the seniors and highly-skilled doctors stop coming to hospitals due to covid, the another reason is bribe , Here in this article I’m not blaming all the doctors & hospital but there are some doctors & hospital which are indulge in bribe taking.
Medical Negligence during Covid-19
In Medical Negligence, the word “negligence” is not interpret anywhere in the code, yet the word “good faith” has been interpret in the Indian Penal Code, 1860. It says that “Nothing is said to be done or believed in good faith which is done or believed without due care and attention”. But here the doctors are not treating the patient with good faith .So a negligent act is contrary to good faith. The essential elements of Negligence are: a)Duty of Care b) Breach of Duty c)cause in fact d)proximate cause and e) damage. To prove the negligence these elements should be satisfied. In Syed Akbar v. State of Karnataka (1980) 1 SCC30, it was ruled that where negligence is an essential ingredient for an offence, the negligence should be established by the prosecution must be culpable or gross and not a negligence merely based upon an “error of judgment”.
The main reason behind the medical negligence is that the doctors are not focusing on the treatment properly and on duty final year medical students are available. Here, I want to raise a question, why? Before the Supreme Court of India, the main reason of death was told by an advocate. That the main reason behind a large mass of death is that due to shortage of beds and oxygen in hospital, doctors are not treating the serious covid patients and even they are not getting entry to enter into the hospital. According to The Hindu “At least four persons were taken to the JMCH as they were in serious condition, later they died because doctors reportedly did not attend them on time”. Another case happened in Government Medical College Hospital, Kalamassery, where the brother of the petitioner had died due to negligence of staff as the staff failed to place his ventilator tube properly. As per the Supreme Court Judgment, it is issued to the States under Disaster Management Act of 2005, that no covid patients would be turned out from the hospital due to lack of bed and oxygen , especially money. But still, the hospitals are not taking patients as there is no bed and also due to shortage of supplies. In case of Srabani Chatterjee & Anr v. State of West Bengal& Ors(C.A.N 4073 of 2020), in this case the 18yr old boy was denied by two clinical establishments and at the right he didn’t get the proper treatment, therefore he died on the same day at Calcutta Medical College and Hospital. The court arises a issue whether this boy died due to covid or not and also the court ordered the hospital to perform all the last rites and rituals but the parent’s of the deceased moved to the court and later the court held that the parent’s of deceased can perform the rites without touching the body. In medical negligence case not only citizens are suffering, migrant laborers are also facing medical negligence, In Hyderabad, a 77 year old suspected covid-19 patient a migrant worker was found dead on the roadside with his body unattended for 12 hours. The deceased reached the hospital when he was suffering from cold and fever, the hospital which he reached referred him another hospital, when he reached another hospital that hospital send him to another hospital but he couldn’t reached because of non-availability of an ambulance. Here the negligent part of the hospital is that, he sends away from the hospital without proper checkup. This is not only case, in India this type of cases is happening in every state.
Another fact of medical negligence during covid-19 is due to false or fake RT-PCR report by the hospitals. Recently, in Mumbai raided a laboratory where they were giving false RT-PCR reports to people without any test just for money. The reports of fake RT-PCR are increasing day by day, as some people are chasing for money.
No doubt, a doctor doesn’t promise a particular result of cure to his patients, yet a patient expected that, “no matter what, a doctor will save him” and also some people consider “doctor” as “god”, but somewhere doctors are
Violation of Human Rights Due to Medical Negligence
First of all here, What is the meaning of human rights? “Human Rights” term has been defined by United Nations and according to the United Nation, “Human rights are the rights inherent to the human beings without any discrimination on the basis of race, caste, sex, place of birth and religion”. Directly, the fundamental rights include human rights, if any fundamental rights is violated, it will directly lead to violation of human rights. Human rights law also recognizes that in the context of public health threats and public emergencies threatening the life of nations also restricts some human rights and violated the fundamental rights. The scale and severity due to covid-19 pandemic clearly rises to the level of a public health threat could justify the restrictions on certain rights. Here, due to medical negligence, many fundamental rights and human rights were violated.
Violation of Right to Health
The Universal Right of Human rights recognizes that the people should be provided with healthy food, shelter, right medical treatment and standard living to the people. But in India, the right to health is being violated in every way especially in medical treatment. Due to increase of covid patients in India, there is shortage of beds and oxygen cylinder in hospitals, which drastically increase the number of deaths in India. Doctors are not treating the patients properly due to lack of staff and supplies.
The Nagpur Bench of Bombay High Court said that “The citizens have all the right to be treated by the doctors and hospital cannot refuse to take covid patients”. But some hospitals and doctors are not doing their duties properly, they intentionally not treating the patient are well and not giving the treatment properly due to which a lot of people are losing their loved one.
Violation of Fundamental Rights
Fundamental rights were deemed essential to protect the rights and liberties of people against the encroachment of the power delegated to them by their government. The aim of the fundamental right is that certain elementary rights such as right to life, liberty, freedom of speech and so on, should not be violated. But here people’s right to life has been violated because of improper treatment by doctors. The most important fundamental right is Article 21 of Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Health care is well recognized under article 21 of Fundamental Right that every person has equal right to be treated and receive medical facilities at proper time. But during this pandemic, the people are not getting treatment in proper ways and cannot refuse any patients for treatment. The Apex Court in Parmanand Kataria v. Union of India AIR 1980 SC 2039, it was held that the every doctor, at the government hospital or elsewhere, has a professional obligation to extend his services with due expertise to protect another life. In another case of Paschim Banga Khet Mazdoor Samiti v. State of West Bengal (1996) 4 SC 37, in this case the victim, an agricultural labour who fell from the train and denied from the emergency treatment by the government hospital, later he filed a case in The Supreme Court, where the court has held that the preservation of human life is utmost important because if timely medical aid is not been provided to the victim, it may cause death to the patient or may lead to permanent paralyzed. Later, the Hon’ble Supreme Court has held that denial of emergency medical aid will lead to violation of Article 21 of Indian Constitution.
“Every citizen in India have right to be treated equally”, but during this period of covid pandemic, the people of this country just hit the reality related to medical profession. They referred doctor as “God” but in reality they don’t know that due to doctor and hospital’s negligence they are losing their loved ones. It’s worth mention that Supreme Court pronounced that medical negligence can also be tried under Consumer Protection Act, 1986. In the case of Vasanth Nair v. Smt.V.P Nair (1991), it has been held that “patient is a customer” and “medical assistance is a service”. Because, the patient has all the right to be treated well with all the dignity and the doctor cannot refuse the patient for treatment. Doctors are professional are under a duty to act when they accept patient for treatment, in such cases when they accept patient for treatment it becomes the doctors liability for the treatment. But during covid pandemic many people have faced a lot of scenarios which I have mentioned above. A doctor and patient shared a fiduciary relationship. He is also not an infallible person like all of us, yet the degree of skill exercised by doctors is expected to be of reasonable competence.
The people are not getting proper treatment at proper time, beds and oxygen are not available. The doctors are refusing emergency patients due to which a lot of people are dying each and every day. People are suffering due to covid. In medical negligence case, most often the doctor/hospital is defendant. Failure of the doctor and hospital to discharge the obligation will be treated under tortious liability. Thus, if a patient’s right to refuse treatment from doctor and hospital is essential a civil liability. Therefore, it is the duty of doctor to treat them properly because at the end they are citizens of India.
“COVID-19 and Medical Negligence: The need for comprehensive guidelines” https://www.barandbench.com/columns/covid-19-and-medical-negligence.
“Brother of Covid-19 Victim files medical negligence complaint” https://www.thehindu.com/news/cities/Kochi/brother-of-covid-19-victim-files-medical-negligence-complaint/article32911419.ece.
“Human right dimensions of covid-19 response, March 19,2020 12:01AM EDT” https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response.
“[ Medical Negligence] Calcutta HC Orders Post-mortem Of 18 Yr Old Covid Suspect”
5. “ Feroz Pathan ,Medical Negligence of Doctors: Legal Complexities in Culpability ”
6.“Medical Negligence leading to Covid-19 deaths allege Assam Congress, Ngo’s”
7. “Elderly Migrant Worker Found Dead on Hyderabad Road, Police Recover Covid-19 Test Slips from Pocket” https://www.news18.com/news/india/elderly-migrant-worker-found-dead-on-hyderabad-road-police-recover-covid-19-test-slips-from-pocket-2574335.html.
8. “Impact of Medical Negligence on Right to Health” https://www.iilsindia.com/blogs/impact-of-medical-negligence-on-right-to-health/.
Name : Divya Bhargava
College : Indore Institute of law
Year : 2nd