Medicine is a noble profession and practitioner must bring to his task a reasonable
degree of skill and knowledge and must exercise reasonable degree of care. Neither
the very highest nor a very low degree of care and competence, judged in the light
of the particular circumstances of each case, is that the law requires.
1) Damage to organ due to negligence.
2) Wrong treatment due to wrong diagnosis.
3) Money receipt or prescription or discharge summery or test reports when not provided.
4) When treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature.
5) Theory of res ipsa loquitur [a thing speaks of itself] - in case any instrument left in the body, a wrong part removed, allopathic treatment given by a homeopathic doctor etc.
6) Govt Hospital liable if contribution from the employee’s salary deducted OR Payment made by insurance company.
7) Negligent if three steps necessary are not observed by the medical practitioners.
First - To decide whether he has to take up the case or not:
Second- If taken up the case, he is to decide what treatment is to be given.
Third- Whether the treatment given as per the diagnosis made.
8) Hospital can also be negligent ‘it is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty.
WHEN DOCTOR CANNOT BE HELD LIABLE
1) If five methods available for treatment, one chosen, not negligent.
2) Doctor not guarantor for healing or curing the disease.
3)Error of judgement differ from wrong diagnosis.
PRINCIPAL ADOPTED BY APEX COURT:
1)Though Indian Medical Council Act has to provisions to control the medical practitioners and take disciplinary action against erring doctors, consumer courts are additional remedy to the consumer under consumer protection act to get compensated.
2)Though medical PROFESSION is different from other OCCUPATIONS, but commercialization has already taken place when services are given by payment though it is still a noble profession based on faith and trust.
3)Though medical profession is technical in nature but it cannot be said that the members of the forum are not capable to deal with such matters .They are equipped with expert opinions on the subject, medical literature and other reports, eminent people from the society, judges or retired judges. Three members can be expert of three subjects only and if it is expected them to know every subject, it will be an impossible situation in all the courts.
4) Decisions in criminal case not found negligent do not affect cases under consumer protection act –gross negligence and intention to commit crime is the parameter in criminal cases.