Dr. GIGI P. V is working as Assistant Professor in School of Indian Legal Thought, Mahatma Gandhi University, Kottayam. She did her LL. M from School of Legal Studies, Cochin University of Science and Technology, Kochi with the specialization of Criminal Law and Administrative Law. Ph. D was awarded by the Mahatma Gandhi University in the topic Law and Medical Negligence. Her special areas of interest are Environmental Law, Consumer Law and Law of Local Self Government. She is the visiting faculty of Kerala Institute of Local Self Government (KILA), Thrissur. She is the member of Sthree Jagratha Samithi which is the basic body of Kerala Women's Commission.
Practice of medicine is rendering great service to the society, providing care and cure. Doctors who are an integral part of this profession are the true torchbearers of society, contributing to it through their efficiency and skill. However, the increased commercialisation of the profession these days has brought an element of dehumanization in medical practice. Health care has now been reduced to a business which in turn determines the patient-doctor relationship, which once was based on mutual trust and faith.
India is a developing nation with seventy percentage of its population living below the poverty line, whose only resort to health care is the government run facilities. The main cause of negligence in our Government Hospitals is the insufficient number of doctors. The doctor-patient ratio is as low as 1:1,722. The shortage exists at all levels, including specialist doctors, nurses and paramedics. Add to that, the high commercialisation of the medical profession. Practitioners are adopting deceitful methods to attract innocent patients and thereby procure money. Some doctors suggest to their patients to undergo various tests, that too in a particular laboratory, which are in fact unnecessary. There may be unethical collusion between that laboratory and the doctor. And some other doctors prescribe more medicines than necessary on the letter pad of particular medical shops. There may also exist some understanding between doctors and pharmaceutical companies for prescribing their products.
With increasing cost of medical care and commercialisation of medical practices, and of course the unethical practices of those who are in this profession, quality medical care has become inaccessible to large sections of the Indian society. Further, this trend has increased the medical negligence cases in the country. In fact, the consumer complaints have been accelerating rapidly over the past few years (15-20%). In spite of the Consumer Protection Act, 1986 which was enacted for the protection of consumers against the negligent acts of the doctors, there does not seem to be any abatement in such cases.
Today in India, many doctors (though not all) have become totally money-minded, and have forgotten their Hippocratic Oath. As a result, more medical negligence cases are reported each day. This issue has created complicated problems in the society and health care system and hence I focused on it for my doctoral study. I scrutinised and analysed the reasons for such a grave situation to find out the root causes, and also the cure for such maladies. As part of the study, I conducted a survey regarding the number of m e di c al negligence cases filed before consumer courts in Kerala in 2009, a year that witnessed an escalated number of medical negligence cases in the various consumer forums across India. I selected five districts and examined the case registers of five consumer forums. From the case book of Thiruvananthapuram District Consumer Forum, it was found that 100 cases were filed between 2007 and 2010. In the same period, 80 cases filed in Ernakulum District Consumer Forum, 22 cases in Kottayam District Consumer Forum, 20 cases in Alappuzha District Consumer Forum and 18 cases in Idukki District Consumer Forum. The survey reiterated that medical negligence cases are emerging as a serious social issue which needs proper interference of law.
An outcome of the research I carried out for my thesis, this book is an attempt to explain the laws related to medical negligence and the enforcement mechanisms along with an insight into the evolution of medical jurisprudence in India. This book discusses the laws and significant cases in India and abroad related to medical negligence, putting them in proper perspective.
For the purpose of understanding the evolution of medical negligence law; this book has been divided into 7 chapters. The first chapter provides an appropriate prelude to the entire book by defining and analysing the need for an effective law for controlling medical negligence cases. It discusses the genuine problem behind this issue and its impact on the society.
The second chapter discusses the historical evolution of medical netzEzce law in India and under common law. It consists of five The first unit discusses the origin of medical negligence :dm the concept of Indian Legal thought up to Constitutional developments. The law has been reformed through social changes. The position of medical negligence under Vedic period has been discussed here. The second unit consists of development of common law from the ancient period in England. Under common law this principle has been emanated from the conventional tort law and many settled principles have been derived from the judicial decisions. The third unit narrates the constitutional perspective of right to quality medical care and its evolution under medical law. Health care law developed in India through the Constitutional jurisprudence and through the interpretation of right to life under Article 21. The fourth unit discusses the evolution of right to medical care through International Documents. It elaborates the various international conventions and instruments adopted by the international community to establish and mould the right to health care. The fifth unit explains the need for access to quality health care service, to advanced medical treatment and to medical records. It mentions the need for safety requirements of products used in health care service, use of experimental medicines, clinical trials, the law relating to abuse of diagnosis and curative procedures.
The third chapter discusses medical liability in the light of medical ethics. This is sub-divided into 5 units. The first unit deals with the position of medical ethics law under Indian Medical Council Act. The second unit deals with various classic theories of medical ethics and provides a theoretical foundation. The basic theoretical principles like Moral relativism moral objectivism, moral pluralism, utilitarianism, right-based and duty based theories, virtue ethics and compromise positions are discussed in the unit. The third unit covers the law relating to informed consent and medical ethics. Informed consent and medical ethics are problematic areas and have been discussed in detail. The fourth unit discusses the legal principles relating to confidentiality, disclosure of information and medical ethics. These are highly complicated issues in the world of advanced medical technology and are therefore explained and analysed in this unit. The fifth unit deals with application of medical ethics law in negligence cases relating to abortion, control of fertility, sex pre- selection, sex-determination, female foeticide, infanticide, artificial insemination, assisted pregnancy/ surrogated motherhood and organ transplantation. In all these areas there are controversies relating to patient autonomy, ethics and law. The chapter concludes by discussing the controlling mechanism in India.
The fourth chapter provides information relating to various medical liabilities. This chapter is divided into four units. The first unit explains liability under penal law. The chapter also analyses the penal aspect of medical negligence which constitutes the basic liability in India. The second unit specifies liability under contract law. In every medical undertaking, there exist some fair dealings based on basic principles of contract law. The third unit describes the liability under tort law. Tortious liability is the basic liability in medical negligence cases. The legal principles like accepted practice, standard of care, duty of care, breach of duty, legal principles like law of consent and disclosure of information etc. are discussed in detail.
**Contents and Sample Pages**
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