Speaker: Ms Anupam Sanghi, Advocate

April 3, 2022

• Medical negligence has come to be understood as any kind of wrongful act, though there is no strict definition for it.
• It has become a legal interpretation as courts have been clear about the standard of care and how to assess it. But doctors are not so aware.
• The first question that arises in such cases is what is the duty of care or standard of care.
• A duty of care exists because of the oath/declaration taken and the professional code of ethics.
• Then the next question is whether this duty has been performed with due care, which is the standard that is expected of an ordinary competent doctor.
• When examining how the harm has been caused, several factors need to be considered such as whether the doctor should have taken up the case (according to his competency) or referred to a specialist? Whether the diagnosis was correct? What would other doctors do under similar situation? Whether the treatment given can be supported with research? How diligently was the care administered? Whether there was any delay in treatment? Can the principle of res ipsa loquitur be applied, which means thing speaks for itself.
• The onus of proving negligence is on the patient and/or their families alleging negligence. The burden of proof is very high on the person alleging it.
• Consent is a very important defense for the doctor. This is the only way by which doctors can defend themselves. Consent can also be video consent.
• When death is due to a rash and negligent act, it is criminal negligence. It is very important to show mens rea or criminal intent. There has to be enough proof to show mens rea that the doctor not only acted rashly and negligently, but also had an intention. The doctor has to also defend by showing that he/she is competent, acted according to standard of care of an ordinary competent doctor.
• Negligence cases are long protracted litigations and the reputation of the doctor is harmed.
• To build up trust between the doctor and the patient, doctors need to spend more time with the patient, sympathize, empathize and talk to the patient.
• The middle path is not to go for litigation but set up a mediation center and resolve the matter.
• Doctors need to change their approach with proper consent, by talking to the patient more patiently and explaining the treatment to them and if something goes wrong, then to opt for mediation.
• There is no indemnity for negotiation or mediation, but it can be worked out in the contract with the indemnity insurance company. The NHS UK has set up a system for mediation.
• Medicine is not an exact science. So, the human aspect needs to be put in practice as both patient and the doctor and their families are suffering.
• Doctors and patients should work in collaboration. Then there will be less friction.
• Trust needs to be restored. This can happen only by an act of empathy, by communicating better and talking across the table if something goes wrong, which is via mediation.