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Proving medical negligence mammoth task

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New Delhi, June 15: The violence in Nilratan Sarkar Medical College and Hospital in Kolkata has highlighted issue of medical negligence.

The family members of an octogenarian patient, Mohammed Shahid, seriously injured two intern doctors on Monday night alleging that Shahid had died due to doctors' negligence.

Junior doctors hold placards during their strike in protest against an attack on an intern doctor, at Nil Ratan Sircar Medical College and Hospital in Kolkata

This is not the first incident wherein realtives of patients have attacked the doctors.

According to legal experts, kin of patients indulge in violence as they are generally not aware about their rights as consumers and legal meaning of medical negligence.

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Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.

Doctors in India may be held liable for their services individually or vicariously unless they come within the exceptions specified in the case of Indian Medical Association vs V P Santha. One of the exceptions is that doctors are not liable for their services individually or vicariously if they do not charge fees. Thus free treatment at a non-government hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a "service" as defined in Section 2 (1) (0) of the Consumer Protection Act, 1986.

The patients have the right to file case under the Consumer Protection Act, 1986. The courts have given a number of decisions on what constitutes negligence and what is required to prove it.

In the case of the State of Haryana vs Smt Santra, the Supreme Court held that every doctor "has a duty to act with a reasonable degree of care and skill".

In the case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole, the Supreme Court held that if a doctor has adopted a practice that is considered "proper" by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong.

In some situations, the complainant can invoke the principle "the thing speaks for itself". In certain circumstances no proof of negligence is required beyond the accident itself.

Doctors' protest intensifies: 24-hour strike on Monday, 3.5 lakh medicos to join

The principle comes into operation only when there is proof that the occurrence was unexpected, that the accident could not have happened without negligence and lapses on the part of the doctor, and that the circumstances conclusively show that the doctor and not any other person was negligent.

The National Consumer Disputes Redressal Commission applied this principle in Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane.

Moreover, 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.

The epitome is that it's not an easy task to hold a doctor responsible for death of a patient due to negligence.

The legal experts say that the law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. In cases of medical negligence the patient must establish her/ his claim against the doctor by citing the best evidence available in medical science and by presenting expert opinion.

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