Profession differentiated from Occupation:
The Supreme Court dealt with how a
'profession' differs from an 'occupation'
especially in the context of performance of
duties and hence the occurrence of negligence.
The Court noticed that medical
professionals do not enjoy any immunity from
being sued in contract or tort (i.e. in civil
jurisdiction) on the ground of negligence.
However, in the observation made in the
context of determining professional liability as
distinguished from occupational liability, the
Court has referred to authorities, in particular,
Jackson & Powell [4] and has so stated the
principles, partly quoted from the authorities:
"In the matter of professional liability
professions differ from occupations for the
reason that professions operate in spheres
where success cannot be achieved in every
case and very often success or failure depends
upon factors beyond the professional man's
control. In devising a rational approach to
professional liability which must provide proper
protection to the consumer while allowing for the
factors mentioned above, the approach of the
Courts is to require that professional men should
possess a certain minimum degree of competence and that they should exercise
reasonable care in the discharge of their duties.
In general, a professional man owes to
his client a duty in tort as well as in contract to
exercise reasonable care in giving advice or
performing services.” [4]
Legal Scenario of Medical Negligence
in India:
Have doctors become more negligent
now? The kinds of malpractice hitting the
headlines are not new: in 1953, a boy with a
fractured limb died in Pune as a doctor operated
on him without proper anaesthesia. [7]
Now the numbers are what first stand
out, and what also make the questions
necessary. According to a 2013 study (Global
Burden of Unsafe Medical Care) by Dr. Ashish
Jha of Harvard School of Public Health, of the
421 million hospitalizations in the world annually,
about 42.7 million adverse events of medical
injury take place, two-thirds of which are from
low-income and middle-income countries.
India records approximately 5.2 million
cases a year, ranging from incorrect
prescription, wrong dose, wrong patient, wrong
surgery, and wrong time to wrong drug. [8]
With public awareness, claims and
litigation are rising. In the country's consumer
courts, they now top the list of 3.5 lakh pending
cases. According to Dr Girish Tyagi, registrar of
Delhi Medical Council, the appellate authority for
dealing with such cases, the number of cases
from overcharging, needless procedures, wrong
doctors to wrong decisions has zoomed in the
last two years, from about 15 complaints a
month to 40 now. [8] A report by the Association
of Medical Consultants shows that there were
910 medico-legal cases against doctors
between 1998 and 2006 in Mumbai. Now they
are going up by 150-200 cases every year. [8]
But it's the gap in the law that seems to
leave both patients and doctors at a dead end.
"For the longest time in India, medical
negligence was not seen as compensable," says
Barrister, Sushil Bajaj of The Integrated Law
Consultancy, Delhi. [8]
Justice S. Ahmad observed that Medical
Negligence plays its game in strange ways.
Sometimes it plays with life; sometimes it gifts
an "Unwanted Child" as in the instant case
where the respondent, a poor labourer woman,
who already had many children and had opted
for sterilisation, developed pregnancy and
ultimately gave birth to a female child in spite of
sterilisation operation which, obviously, had
failed.
Smt. Santra, the victim of the medical
negligence, filed a suit for recovery of Rs. 2
lakhs as damages for medical negligence, which
was decreed for a sum of Rs. 54000/- with
interest at the rate of 12 per cent per annum
from the date of institution of the suit till the
payment of the decretal amount........
Scenario of Medical Negligence
around the Globe and in India:
India is recording a whopping 5.2 million
injuries each year due to medical errors and
adverse events. Of these biggest sources are
mishaps from medications, hospital acquired
infections and blood clots that develops in legs
from being immobilized in the hospital.
A landmark report by an Indian doctor
from Harvard School of Public health (HSPH)
has concluded that more than 43 million people
are injured worldwide each year due to unsafe
medical care.
Approximately 3 million years of healthy
life are lost in India each year due to these
injuries. [5]
Medical Mishaps and Fatal Errors:
Health care errors is the 8th leading cause of
death in the world
Over 7 million people across the globe suffer
from preventable surgical injuries every year
(WHO)
Globally, 234 million surgeries take place
every year, one in every 25 people undergo
a surgery at any given time.
In developing countries, the death rate was
nearly 10% for a major surgery
Morality from general anaesthesia affected
one in 150 patients while infections were
reported in 3% of surgeries with the mortality
rate being 0.5%
Table 1: Reported Deaths due to Medical
Negligence every years Globally
S. N. Country No. of Deaths every year
1 United States 98000
2 Canada 24000
3 Australia 18000
Source: Compiled from article published in the Times of India [5, 6]
Nearly 50% of the adverse effects of surgery
were preventable
5.2 million medical injuries are recorded
each year in India
43 million people get injured each year due
to unsafe medical care worldwide
About two-thirds of medical injuries occur in
low and middle income countries like India
Sources of Medical Mishaps: Wrong
medications, Hospital acquired infections, Blood
clots
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