by Aryan Jain
It has been more than a year now since the COVID-19 was designated as a pandemic by W.H.O. In the past sixteen months, more than four million people have succumbed to the virus. India alone has suffered around half a million deaths and another wave is waiting at the door with new health complications.  The pandemic has been very disruptive for the medical profession as well. While medical professionals and health workers were regarded as “Corona Warriors”, fighting in unprecedented situations just like soldiers, there was also a rise in medical negligence during the pandemic. Especially in a country like India with a large population, poor health infrastructure and over-burdened doctors, cases of medical negligence and denial of medical assistance to patients became quite rampant in COVID era. Owing to ongoing pandemic situation and unavailability of beds in hospitals many emergency cases of accidents, serious injuries, and other non-coronavirus related ailment patients have been denied admission to hospitals. Therefore, it is important to analyse what is actually responsible for these negligent deaths and why the number of negligence cases in hospitals and clinics has skyrocketed over the past year.
What is ‘Negligence’?
Negligence can be defined as a breach of duty of care owed to others, which causes injury to a person or to its personal property.  So, to fulfil the ingredient of negligence there are three prerequisites: duty of care, breach of duty and resultant injury. Negligence has been widely discussed under various laws such as tort law, contract law, and criminal law. Another important aspect of negligence is that the duty owed to the other person is the standard course of action that is expected from the person of elementary intellect. Therefore, any failure to exercise due care will amount to ‘Negligence’.
What is Medical Negligence?
Medical negligence is defined as any act or omission that seems to deviate from the normal accepted standard of medical care that a practitioner follows for their patient. It is expected that a practitioner should possess the required set of skills and understanding to undertake their duties, when they are employed in a particular profession. Especially in the medical profession, where the questions concerning life and death and the stakes are extremely high, a considerable degree of care and responsibility is required.
How is ‘Negligence’ established?
In medical negligence cases the key issue is to prove that the doctor has failed to meet the required standard of care, which is often done through the Bolam test, devised in case of Bolam V. Friern Hospital Management Committee  1 WLR 582,  which states that ‘A doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by the responsible body of medical opinion’. Suppose, for an instance, if a doctor administers anaesthesia to a patient before surgery but the amount of anaesthesia is significantly more than the average dosage for an adult, resulting in the death of the patient. This would amount to medical negligence, as the doctor had deviated from the standard course of treatment. However, if the doctor had administered correct dosage of anaesthesia but the patient’s body was not able to handle the anaesthetic effect and slipped into a coma, then the doctor would not be held liable.
Medical Negligence and its attributes
The negligence has a magnitude of liability which means if the Doctor is slightly negligent, he will be held liable under the civil liability; on the other hand, if the doctor is highly negligent or ‘Gross Negligent’, then he might be prosecuted under criminal liability. Gross Negligence or ‘lata culpa’ is the failure to exercise even the slightest care possible.  Some examples of Gross negligence may include for example amputation of the wrong limb of the patient or a surgeon leaving a foreign object such as scalpel, knife inside the body of patient. It is well accepted that in cases of gross medical negligence the principle of ‘res ipsa loquitur’ is to be applied, which means the ‘things speak for itself’. This maxim is applicable only if the defendant was in exclusive control of the situation or instrument that caused the injury or the injury would not have ordinarily occurred without the defendant’s negligence (Ex: amputation of the wrong limb) and the plaintiff’s injury was not due to his own actions or contribution. As per the case of Indian Medical Association V. P. Shanta & others 1996 AIR 550, 1995 SCC (6) 651,  “Hospital treatment would be considered as a ‘service’ if it’s not free of cost then patients could sue the hospital authority under any breach under the consumer protection Act, 1986”.
As far as negligence is concerned, medical negligence is a part of professional negligence as established in the case of Jacob Mathew v. State of Punjab AIR 2005 SC 3180; (2005)  which states that “a person can be held liable under negligence if he did not possess the skills to profess or he failed to take essential amount of care to profess the said profession’’. Hence, the scope of medical negligence is quite vast and debatable in many scenarios. Sometimes it leads to complex areas of criminal law, civil and tortious liability and sometimes it becomes the matter of contract or its breach which is protected by consumer protection act.
Medical Negligence in COVID-19 and way forward
As the whole world is experiencing an unprecedented crisis with the virus overburdening all major healthcare systems. Several countries in the world, including India, have started recruiting experienced nurses, final year medical students and retired practitioners, while converting hospitals into large COVID-19 wards. So, if a person dies due to wrong medications given or less pressure of the oxygen, who may be held accountable? The hospital authority or the doctor or the support staff? However, some experts and communities are arguing that given the unprecedented circumstances doctors should be provided immunity from medical negligence cases.  Some say that COVID-19 should not be a safety net to hide behind and this would make a mockery of the judicial system of the country.  Therefore, in my opinion a comprehensive framework or a set of guidelines should be formulated by Medical Council or judiciary for dealing with the cases of medical negligence, which should set a minimum ‘standard of care’ in such cases and the rights of both patients and doctors can be protected in this way. Governments should implement proper facilities and policies to curb mismanagement of hospitals because lack of adequate resources in the hospitals has been the primary cause of death of patients. Also, providing immunity to doctors from negligence cases is not an appropriate option as it may promote acts of negligence and will create a safety shield for cases of ‘Gross negligence’ and other malpractices which may go unnoticed. In cases in which the doctors did not even intend to exercise minimal care and it resulted in tremendous agony or death of the other party, the practitioner must be held liable.
It cannot be denied that with the advancement in technology and awareness about human rights, the concept of medical negligence in India is gaining momentum. Even after 74 years of independence, no Medical Negligence Act is enacted in the country and The Medical Council (MCI) Act, 1956, has no provision to penalise a negligent doctor.  Owing to lack of effective legislation and the court’s lack of expertise in the subject matter makes medical negligence claims a far-fetched dream for a common man. It is important to understand that if a person suffers from a permanent disability due to gross-negligence of a practitioner, he loses financial security for himself and his family. Hence, a more practical approach should be devised to approve civil liability claims in such cases and instead of providing immunity to the practitioners we can make some dispute resolution departments to handle such matters on a case-to-case basis.  There is no doubt that our medical professionals are working day and night to protect each life and preserve the future of mankind, despite facing shortage of resources such as oxygen, medicines, vaccines etc. Therefore, the effort has to come from both sides and we should encourage the decisions of doctors and hospitals that were taken in good faith. However, the crime of medical malpractices and negligence should not go unreported in any circumstances.
Aryan Jain is a second year law student from BML Munjal University and an intern at Justice Adda.