IPC Section 80: (Accident in doing a lawful act). The onus lies on the defendant (doctor) to prove that not only the good intentions but also a reasonable skill and care are exercised for the discharge of duty. Good faith implies genuine belief on the part of the doctor that his/her act of omission or commission would be in the best interest of the patient. Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention. The IPC describes in following sections below regarding this difference:
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It has been held in different judgments by the National Commission and by the Honorable Supreme Court that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. No human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. Recommendatory action: Lodging complaint before the National/State Human Rights Commission seeking compensation. Disciplinary action: Moving the professional bodies like Indian Medical Council/State Medical Council seeking disciplinary action against the health-care provider concerned.
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Punitive action: Filing a criminal complaint against the doctor under the Indian Penal Code (IPC).
Compensatory action: Seeking monetary compensation before the civil courts, high court or the consumer dispute redressal forum under the constitutional law, law of torts/law of contract, and the Consumer Protection Act. A doctor should know that the plaintiff (patient) in order to succeed in the action of establishing negligence must show that the damage would not have occurred but for the defendant's (doctor) negligence or the defendant's negligence materially contributed to or materially increased the risk of injury or if the claim is for negligent nondisclosure, had he/she been adequately informed he/she would not have accepted the treatment.Ī victim can seek any of the following actions against a negligent medical professional. A breach of any of these duties gives a right of action for negligence to the patient. The duties which a doctor owes to his patients are a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. Thus, there is a need to appreciate this differentiation by the society so that doctors do not get indicted for impractical reasons. The difference between medical negligence and medical error is well-settled, and the principles are well-founded being clearly laid down in numerous cases by the Supreme Court. The level of negligence depends on the entire context – which includes the place, the time, the individuals involved, and the level of complications. There is often a thin dividing line between the three levels of negligence lata culpa, gross neglect levis culpa, ordinary neglect and levissima culpa, slight neglect. They rely on experts’ opinion and decide on the basis of basic principles of reasonableness and prudence. However, negligence by doctors has to be determined by judges who are not trained in medical science. Medical profession has its own ethical parameters and code of conduct. The best way to handle medico-legal issues is by preventing them, and this article tries to enumerate the preventive measures in safeguarding the doctor against negligence suit. The axiom “you learn from your mistakes” is too little honored in healthcare. It depends on the particular facts and circumstances of the case, and also the personal notions of the judge concerned who is hearing the case. One cannot predict with certainty an outcome of cases many a time. The law, like medicine, is an inexact science. On the other hand, a well-publicized malpractice case can ruin the doctor's career and practice. Corporatization of health care has made it like any other business, and the medical profession is increasingly being guided by the profit motive rather than that of service. Doctors are no longer regarded as infallible and beyond questioning.
However, today, the patient–doctor relationship has almost diminished its fiduciary character and has become more formal and structured. The practice of medicine is capable of rendering noble service to humanity provided due care, sincerity, efficiency, and professional skill is observed by the doctors. The medical profession is considered to be one of the noblest professions in the world.
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