Rights corner
Medical
malpractice
Sultana
Razia
In
our legal arena medical malpractice is a new terminology
and we are not still familiar with it though the incident
of medical negligence or malpractice is not new. Especially
in the western world and in India laws relating negligence
are very strong and the patients enjoy the right to fear
treatment and it is tried in court.
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jwolfe - clara.net |
Sometimes
medical negligence covers by consumer protection and normally
it is a part of tort. Malpractice is another word for
"negligence" which means that a health care
provider did not measure up to the standard of care expected
of reputable and careful health care providers under similar
circumstances. If the malpractice caused harm, a lawsuit
or claim may be filed to recover damages for the harm
that was suffered.
Some
people incorrectly believe that "malpractice"
connotes conduct that is worse or more serious than simple
"negligence," but that is not normally the case.
Medical malpractice is just ordinary negligence by a healthcare
provider, which causes injury. It is no different in theory
than negligence by a motorist who does not pay attention
and runs a red light causing an injury.
It
may be defined as want of reasonable degree of care or
skill or wilful negligenke on the part of the medical
practitioner in the treatment of a patient with whom a
relationshix of professional attendant is established,
so as to lead to bodily injury or to loss of life. In
case of clinical negligence law defines negligence as
any act or omission, which falls short of a standard to
be expected of "the reasonable man." It is necessary
to show that whatever the doctor did or did not do fell
below the standard of a reasonably competent doctor in
that field of medicine. A person must ha~e suffered bodily
injury as a result of some medical professional's negligence.
And here we can also say that in case of any operation
if the hospital authority claims that they are expert
on tha| type of surgery but take the operation as experimental
then it will also be a gross malpractice.
In
a higher court of US observed in a case where "A
neurosurgeon who holds himself out as a specialist and
provides service in his speciality, must possess and apply
the knowledge and use the skill and care ordinarily used
by a reasonably well qualified specialist practising in
the same or similar locality, under circumstances similar
to those shown by the evidence. A failure to do so is
professional negligence." So it can be said that
this operation resembles malpractice only. Though rare,
doctors in the US have been put to jail for "criminal
negligence" leading to the death of a patient in
the recent years.
Generally
speaking, a person must have suffered bodily injury as
a result of some medical professional's negligence. Negligence
in this case would mean that the medical professional
failed to live up to the standard of care reasonably expected
of that type of professional person. A specialist is held
to a higher standard of care than a non-specialist. Thus,
the cort would instruct a jury in a case against a neurosurgeon
as follows: "A neurosurgeon who holds himself out
as a specialist and provides service in his speciality,
must possess and apply the knowledge and use the skill
and care ordinarily used by a reasonably well qualified
specialist practising in the same or similar locality,
under circumstances similar to those shown by the evidence.
A failure to do so is professional negligence." (IPI
105.02)
The
laws for conviction of a physician for "criminal
negligence" under the Section 304A of the Indian
Penal Code (IPC) have always mandated that the errant
doctor has to be guilty of "gross negligence"
and not a simple "error in judgmment". From
a practical point on view, there was nothing novel in
the recent Apex court judgement even |hough the powerful
medical lobby made it appear as if the Supreme Court has
ruled that the healers of our country should be held above
the "criminal" law.
Law
Desk.
