MEDICAL NEGLIGENCE & MALPRACTICES IN INDIA: PERSPECTIVE OF TORTIOUS LAW

Abstract

The profession of healing the suffering has gained respect from all corners of the society since time immemorial. A physician, apart from a healer, has been looked upon by the masses as a role model of grace personified, though of late this image has transformed to a mere service provider. This can partly be attributed to doctors themselves, owing to the increasing number of cases involving doctors engaging in unethical practices coming to light and, therefore, medical professionals have over the period lost the confidence of their patients and the society. The learned scholars, at all times, were sensitive to this tender aspect of a noble and pious profession being and made sincere attempts to codify the attitudes and practices to be adopted by the physicians.

Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness within reasonable limits. A breach of this duty gives a patient the right to initiate action against the physician. Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so as they have the skill to decide whether to take a case, to decide upon the likely course of the treatment, and to administer that treatment

The principle that doctors and indeed all professionals should be accountable for their failure is entirely acceptable. However, the modes to test this accountability of the professionals are diverse and various methods have been tried over the period of time[1]. It is left to one’s imagination how a prehistoric tribal chief punished a shaman or medicine man or witch doctor or priest, physician who was perceived to have injured the chief’s family. In earlier time medical negligence was considered more as a crime rather than as a tort. The early tribal or communal law depended on local practice and custom for controlling the actions of the members of the medical profession.

The seminal aim of this paper is to understand and analyse the concept of medical negligence and to weigh it with the tortuous liabilities that it may lead to and help the layman in recognising and understanding the effects and remedial measures.