Medical Negligence is
a branch of Tort. The Law of Tort is not
an enacted statute. The Tort is a judge made law, based on the verdicts of Apex
court.
.
In V.P.Santha v. IMA, it
was decided that the free treatment is not within the purview of consumer courts.
Now, the issue has slowly moved to a stage
that free service availed in Govt. hospitals is within the purview of Consumer
Courts. The same has been affirmed by
Apex Court in KRISHNAKUMAR
vs. STATE OF TAMIL NADU & ORS. III
(2015) CPJ 15 (Supreme Court).
.
NOW, GOVT. HOSPITAL IS UNDER CONSUMER PROTECTION ACT AND
CONSEQUENTLY, THE GOVT. DOCTOR IS LIABLE FOR MEDICAL NEGLIGENCE.
.
The Govt. Doctors must take the utmost care while treating the
patients. The patient’s welfare and
safety must be given priority. Once the doctor decides (serving at the DMS
and DPH) that the patient needs referral to a higher institution, the patient
should be immediately referred to nearby Govt. Medical college.
.
Recommendations from
higher administrtive authorities (Joint Director of Health services, Supdt of
hospital, RMO of hospital, BMO) must be kept away and the patient’s safety and
welfare must be given importance by the treating doctor. If the govt. doctor fails to adhere with medical
ethics, then the doctor will be directly liable for medical negligence and the
Govt. hospital will be vicariously liable.
Hence,vthe duty of Govt. doctors
is not only protect the patient’s welfare and safety, he must take every steps to avoid medical
negligence litigation against Govt and consequently payment of compensation.
.
As Apex Court clearly notified
in the judgment that a concerned doctor must pay certain compensation in
addition to the payment of compensation by Government, it is the duty of Govt.
doctors to ensure the safety and welfare of the patients. Hence, obtaining an informed consent, proper
documentation and timely referral will save the Govt. doctors from paying
compensation on medical negligence cases.
.
VERY IMPORTANT
POINT: If a Govt. doctor faces a medical
negligence case (even though he is not a respondent to the case at initial
stage of the proceedings ) , he must implead as a respondent to the proceedings and conduct the case from his
side through an advocate. Otherwise, he will
not a get a chance to put his arguments before the court and ultimately, he may
end up paying compensation.
.
Earlier, the
compensation in medical negligence case was
ordered on lump sum basis. After, KRISHNAKUMAR vs. STATE OF TAMIL NADU & ORS. III (2015) CPJ 15, a new principle has been laid down for
fixation of the compensation (calculation of loss for the whole life i.e. like
Motor vehicle accident cases) and accordingly
compensation of Rs.1.38 Crore was ordered for a child who lost
her vision.
.
On the basis of this new principle delivered
by Apex Court, doctors (including Govt. doctors) must be very careful in
treating the patients otherwise, he may lose
his entire life time earnings in one
case by way of paying huge compensation.
.
FINALLY, all doctors (including Govt. doctors) must
have a professional insurance cover (PPLSSS or with other Insurance Co.). A Doctor must avail minimum insurance cover
for Rs.10 lakhs (not for 5 lakhs) in IMA PPLSSS.
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