Author: Sona Sunny, Government Law College Thrissur, Kerala

Doctors are valued as the meritorious section of society, not only doctors but also everyone under the ambit of health care. All the medical providers owe a duty to take care of their patients, infelicitously the aforementioned people can also die on the vein in their incumbency, by not providing them genteel care, acting maliciously that would lead to a rampant intricacy causing injuries and even eternal rest. The term medical negligence is of paramount importance amidst the covid 19 pandemic, due to the throng in hospital corridors seeking for the whiff of life, the doctors and health providers are unable to manage hourly. The civil liability in case of negligence is either upon the doctor or the hospital. The hospital is said to be vicariously liable for the mistreatment of its personnel.
The health care has been brought under unprecedented limelight since the genesis of covid 19 pandemic. Hospitals play a pivotal role in all of our lives, especially in the current situation of covid 19 .people are running behind hospitals in order to get a bed and to perpetuate themselves ,but many are being left fall flat in half way. On one hand the health providers doctors and nurses are worth panegyric and has been hailed as “corona warriors”, on the other hand ,there have been allegations of patients being denied medical aid ,and safety protocols not being followed, putting the lives of both health care staff and patients at jeopardy.
Has the presence of COVID-19 increased the likelihood of medical malpractice cases?
Medical malpractice claims are on the rise, partially as a result of the expeditiously growing number of healthcare providers with hand-to-mouth or skimpy infrastructure, and partly as a result of healthcare workers’ enervate skills and obsolete cognition. The Medical Council of India’s laxity in implementing strict diagnosis and treatment criteria has exacerbated the situation especially during covid 19.
The regulator is frequently seen circling its waggons and shielding healthcare practitioners from liability. As a result, patients and their families are increasingly turning to the legal system for help. However, due to a lack of subject area competence and a lack of detailed norms, even the courts are unable to administer uniform justice. As a result, various courts and, at times, co-equal benches of the same court, including the Supreme Court, issue contradictory and conflicting judgments. A recent Supreme Court judgement dramatically lowered the bar for determining liability in medical negligence cases, stating that even if a healthcare provider makes a mistake in diagnosis, this does not constitute medical negligence.
Civil Liabilities, Negligence, and Maladministration
Simply explained, negligence is a breach of a duty of care that results in an injury. Medical negligence is similar to other types of carelessness, with the exception that a higher level of care is required because the defendant is a skilled professional performing a critical function. Civil liability for medical malpractice or carelessness can be assigned to either a doctor or a hospital. While a doctor running his own medical practise is fully responsible for the care he provides, a hospital, on the other hand, is responsible for the mistreatment of its employees, which include doctors and other staff members. This is because hospitals are covered by Indian labour regulations, which recognise an employer and employee between the ages of 18 and 65.In terms of the legal position, causation is taken into account.
The Courts have determined that the breach of the doctor’s duty was the most likely cause of the patient’s injury out of all the plausible causes. In addition, consumer protection laws are routinely invoked in such cases. However, it is true and understandable that even the most trained medical professional might make a therapeutic error, and expecting any type of guarantee for perfection is utterly unrealistic. Thus, in the case of Indian Medical Association v. V.P. Santa (1996), the Supreme Court (‘SC’) 1996 AIR 550, 1995 SCC (6) 651 established some exclusions to the circumstances when doctors are held accountable for their services individually or vicariously. According to the National Sample Poll Office’s 2015 survey, the status of public healthcare in India has prompted people to rely on private healthcare facilities for medical attention in more than 70% of cases. This is sufficient evidence to convince us that the industry cannot be left unregulated. As a result, medical establishment rules and vital services maintenance regulations can be used to prosecute cases of bad management and unethical acts. Around 18 private medical facilities in Karnataka were served with legal notices in June 2020 under the Karnataka Private Medical Establishment Act 2007, for denying medical aid on the bogus excuse of a lack of beds and ventilators.
Criminal Liability- If a patient dies as a result of treatment, a criminal complaint may be launched under Section 304A of the Indian Penal Code for allegedly causing death by reckless or reckless action. According to Section 304A of the Indian Penal Code, anyone who causes the death of another person by a rash & negligent act that does not amount to culpable homicide is sentenced up to two years in jail or charged with fine or both.

In circumstances of medical negligence, a hospital’s liability may be direct or indirect. In this case, direct culpability would imply a shortcoming in the hospital’s services, rendering it hazardous and unfit for treatment. On the other hand, vicarious liability refers to the hospital’s liability as an employer for the negligent acts of its personnel.
The Supreme Court has reaffirmed that a hospital can be held vicariously liable for medical malpractice perpetrated by medical experts it employs or retains. According to a judgement handed down by Justices UU Lalit and Indu Malhotra,”It is well recognised that a hospital is vicariously liable for the acts of negligence perpetrated by doctors who have been hired or appointed to provide medical care”.
The Court then goes on to say,
“It is common knowledge that when a patient visits a hospital, he or she does so because of the facility’s reputation and in the expectation that the hospital’s authorities would provide due and right care. If the hospital fails to execute its responsibilities through its doctors, whether they are hired on a job or on a contract basis, the hospital must defend the acts of commission or omission on behalf of its doctors. “
The following are some of the circumstances in which a hospital is directly liable:
Inadequate hospital upkeep results in the patient’s damage or death.
Failure to provide a safe and appropriate environment as promised–for example, when the patient is harmed by defective equipment, inept staff, or insufficient accommodations.
Under the Consumer Protection Act, deceptive or misleading signboards, advertisements, and notices, as well as false claims of availability of specific facilities, can be considered a deficiency in services or unfair commercial practises, and damages can be paid.
Charging for a service that was not supplied, or billing more than what is included in the presented list of costs, or charging for a service that was not supplied.
In violation of the Medical Council of India Regulations, 2002, improper treatment records are kept and records are not handed over to the patient or his approved attendant/legal authorities within 72 hours.
Furthermore, failure to communicate such records to the patient or attendant may constitute a deficit in services under the Consumer Protection Act of 1986.
As long as such activities occur within the course and scope of employment, the employer is accountable not only for his own acts and omissions, but also for those of his employees. The maxims “respondent superior,” which means “let the master answer,” and “qui facit per alium facit per se,” which means “he who acts via another does the act himself,” underpin this liability
The “borrowed servant doctrine,” which states that an employer is not accountable for an employee’s actions if the person is working under the direct supervision of another employer, is an exception to the preceding concept.
For example, if a surgeon from one hospital visits another to do surgery, the second facility would be held accountable for the surgeon’s actions. In today’s world, however, most doctors are independent contractors rather than hospital employees. The nature of a doctor’s relationship with the hospital will determine whether or not he is an employee of the hospital.
However, a hospital cannot avoid accountability by claiming that it cannot undertake any operation or amputation on its own and that it simply provides infrastructure, nursing services, support workers, and technicians. The hospital is liable not just for its own employees, but also for outside contractors who admit or operate patients, such as anaesthetists/surgeons or doctors in some situations. This was held in the case of Smt. Rekha Gupta v. Bombay Hospital Trust and Anr.2003 (2) CPJ 160 (NCDRC) By the National Consumer Disputes Redressal Commission. “Persons who administer hospitals are in law under the same responsibility as the humblest doctor: whenever they take a patient for treatment, they must use reasonable care and skill to ease him of his ailment,” it was declared in Joseph Alias Pappachan v. Dr. George Moonjerly1994 (1) KLJ 782 (Ker. HC).Of course, the hospital administration cannot do it alone; they lack the ears to listen to the stethoscope and the hands to handle the surgeon’s knife. They must do it through their employees, and if their employees are irresponsible in providing treatment, they are just as accountable as anyone else who hires others to perform his work for him.
It has been decided that in the case of negligent acts that occur in government hospitals, the state can be held directly accountable if there are insufficient facilities, equipment, or staff, and it can also be held vicariously liable for the negligent acts of its doctors. In a rare situations, the court has even awarded the complaint compensation paid by the government doctor whose negligence has been proven.

In India, the medical profession is regarded as the noblest of all professions; for the patient, a doctor or other medical practitioner is akin to “God is unerring.” However, this is the patient’s perception; in actuality, a medical practitioner is only a human being, and as the old adage goes, “to err is human.” As a result, they are more likely to make mistakes, necessitating the establishment of medical negligence regulations, particularly in the case of hospitals, which have a history of evading culpability in many cases. As far as I am concerned ,A medical professional should only be held accountable if the level of treatment provided was less than that which would be provided by a qualified practitioner in that area. And when a medical practitioner conducts his duties with the greatest care and precaution, he or she should not be considered negligent. Albeit, the felon who wittingly endangered the life of human whether a doctor ,nurse or any medical practitioner should be send up the river.

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