This blog is written by Rajyashri Mandal, a Third-year law student of Department of Law, University of Calcutta

Introduction

A medical malpractice claim is that of professional negligence. When someone levels one of these claims, they are alleging to have not received the level of care that was reasonable and necessary. People typically file these claims in situations in which their condition worsens under care professionals. In recent years, there has been a massive surge in medical malpractice all over India. According to the NCDRC, there was a 110% increase in reporting cases, approximately 12% of all cases filed in consumer courts between the 2010 to 2020. In rural areas, less than 30% of incidents were reported due to a lack of awareness and unapproachable legal resources. [1]

Supporting phenomena

In India, there are various factors that contribute to the rate of increase in medical malpractice: Most Saviour-attributed factors are inadequate infrastructure and an overburdened healthcare system, high patient-to-doctor ratio, immense work pressure on professionals, notorious regulatory system, commercialisation of the healthcare system, and insufficient communication between doctors and patients. In addition, other social factors, like the legal landscape in India, have become more accessible. Strong consumer protection laws (the Consumer Protection Act, 2019) and patients's awareness of their rights to a standard of care have increased patients seeking legal recourse when they expose a breach in the duty of care.

Regulatory guidelines

We can address medical malpractice by a combination of legal provisions, a regulatory framework, and judicial verdicts. This way can help protect patients rights, and we need to focus on establishing accountability for medical professionals. There are some guidelines to counter medical malpractices in India,Section 2 (42) of the Consumer Protection Act (2019) covers medical services are classified as a service. [2] This allows patients to file complaints against medical professionals, institutions, or any service provider depending on case to case, and to seek compensation depending on the nature of the case. In addition to the Bharatiya Nyaya Sanhita [3], we get protection against causing death by negligence under Section 304A of this act. It leads to imprisonment not being less than 5 years but may extend to ten years, a fine, or both. On Section 125 of this act, recognises negligence amounts to hurt and grievous hurt as a crime and leads to imprisonment or a fine or both. Third, on the civil ground, a person seeks justice against medical professionals for compensation under the law of torts for inconvenience towards the professional. There is a right in the patient's hand to make the hospital or the medical institutions accountable on the ground of vicarious liability if there is any negligence . Most importantly, the National Medical Commission provides a code of medical ethics that sets clear guidelines for the conduct of healthcare professionals. The commision also has the power to take disciplinary proceedings against medical professionals under Section 8.2 of the Code of Medical Ethics Regulations.[4]

Relevant cases

important cases decided in India regard as a lank mark judgement on the issue of medical malpractice.
First of all, we get the principle of "stander of care" in the case of "Laxman Balkrishna vs. Trimbak Bapu Godbole and Anr on 2 May, 1968” [5]. Overview of the case: In this case, there is a patient who died due to complications ocular after the surgery. He was suffering from a fracture, so he was admitted for the surgery procedure on the observation under doctor Godbole. After the surgery, complications were observed in the patient’s body, and eventually he died. There was an allegation of not taking necessary postoperative care. The main legal issue was whether the doctor showed any negligence in performing the surgery or providing postoperative care, which ultimately led to the death of the patient. The judgement gave us clarity on the raised issue. They said that if a doctor followed necessary guidelines provided by the regulatory body (NMC), he would not be held liable for any legal suits. The judgement emphasises a principle of STANDERD OF CARE, and the doctor must take reasonable care in diagnosing, treating, and following up with the patient. This case laid down the importance of the standard of care expected from the medical professionals.
In the case of “Jacob Mathew vs. State of Punjab & Anr on 5 August 2005” [6], we get that there can be a standard for criminal liability in the case of medical negligence; it is also noted that criminal prosecution should be pursued only in cases of gross negligence, also providing protection to medical professionals.

There are some ways we can implement to prevent the risk of medical malpractice suits; those are [7]:

Effective communication: satisfaction of the offered service by the medical professional plays a huge role in the case of malpractice claims. People remember how they were treated, whether it was positive or negative. The experience leads to further action from the patient.
Documenting every procedure: proper documentation of every procedure, including before, during, and the after treatment, gives clarification to the patient's family and the medical professional. This plays an important role in preventing any misunderstanding between the parties.
Obtain consent: it seems obvious that it is the most common issue raised in the cases of medical malpractice lawsuits. There is zero wiggle room on the matter of consent.

In conclusion, India needs deeper changes to element malpractice cases from the society. It involves a balanced approach that includes strong and clear legal frameworks. In addition we need to improves healthcare infrastructure, enhances medical education, and fosters a culture of safety and accountability. It also helps to develop an equitable healthcare environment where both parties rights are equally valued.

References:

1. National Consumer Disputes Redressal Commission (NCDRC)

2. The Consumer Protection Act, 2019

3. The Bharatiya Nyaya Sanhita, 2023

4. Code of Medical Ethics Regulations, 2002 (AMENDED UPTO 8th OCTOBER 2016) (Published in Part III, Section 4 of the Gazette of India, dated 6th April,2002)MEDICAL COUNCIL OF INDIANOTIFICATION https://www.nmc.org.in/rules-regulations/code-of-medical-ethics-regulations-2002/ (accessed September 4, 2024)

5. Laxman Balkrishna Joshi vs Trimbak Bapu Godbole And Anr on 2 May, 1968 https://indiankanoon.org/doc/297399/#:~:text=%5B216%20E%2DF%5D%20207%20(2,giving%20anaesthetic%2C%20and%20not%20mere (accessed September 4, 2024)

6. Jacob Mathew vs. State of Punjab & Anr on 5 August 2005 https://indiankanoon.org/doc/871062/ (accessed September 4, 2024)

7. 5 Tips to Avoid Medical Malpractice Claims and Lawsuits, Kase, Aug 24 2023 https://kaseinsurance.com/news/tips-to-avoid-medical-malpractice-lawsuits/ (accessed September 5, 2024)