Medical Malpractice Lawyer

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Medical Malpractice: Medical malpractice is an act of negligence committed by a medical provider, usually a physician. It is defined as doing something a medical provider of ordinary skill would not have done, or failing to do something that a medical provider of ordinary skill would have done. Individuals may be subject to one of the various forms of medical malpractice whenever they seek the care of a medical provider. Malpractice can be constituted by something as simple as failing to put the rails of a hospital bed in the upright position, to something as complex as improperly performing open heart surgery.

A related issue in these cases is whether patients have provided informed consent to a particular treatment. Only if patients have been informed of the details, risks, benefits and alternatives to a recommended form of care can they rightly be said to have given informed consent. Medical Malpractice Lawyer are the legal professionals those who advocate in the cases on medical negligence.

Medical Negligence Law and criminal law

As compared to an ordinary human, medical professionals are placed on a different footing under Indian criminal law. According to section 304A of the Indian Penal Code of 1860, “whoever causes the death of a person by a rash or negligent act that does not constitute culpable homicide shall be sentenced to two years in prison or fined, or both.” Thus, a person engaged in the commission of an offence within the meaning of IPC and causes death by rashness or negligence, but without either intending to cause death, or thinking that it is likely that he will cause that, should be liable for the punishment of the offence which he was engaged in committing in addition to the ordinary punishment of involuntary culpable homicide.

In cases where a patient passes away during an operation involving the administration of anaesthesia, criminal liability may be imposed on a doctor if there was malicious intent or gross negligence. Similarly, vicarious liability applies in this situation, meaning that if the death was caused by someone who is employed by the doctor – such as a servant – both they and the doctor will be held responsible under Tort law.

Despite the rights of a patient mentioned above, the Indian Penal Code allows some defense for medical practitioners in certain cases. Under Section 80 (Accident in doing a lawful act), an act is not considered an offense if done by accident or mistakenly without any criminal intention when performing a lawful act with proper care. Additionally, Section 88 provides protection to medical practitioners who act in good faith for the benefit of others, with no intention to do harm and with the patient’s permission.

Criminal negligence and the Consumer Protection Act

Since the 1990s, there has been much speculation and discussion about whether medical care should be included in the definition of “Services” as stated under Section 2(1)(o) of the Consumer Protection Act (CPA). Within this context, “deficient service” applies to any flaw, imperfection, shortage, or deficiency in terms of quality, nature or approach to providing a service that is required by law or was agreed on for performing a service.

Where can a complaint be filed; the answer is that it can be filed in

  • The District Forum if the value of the services and compensation is less than 20 lakh rupees, A claim for compensation and the value of the goods or services cannot exceed 1 crore rupees before the State Commission, or
  •  In the National Commission, if the value of the goods or services and compensation exceeds 1 crore rupees. There is a minimal fee for filing a complaint before the District Consumer Redressal Forums, which is a positive.

The Indian Medical Association v. VP Shantha decision of 1995 brought the medical profession within the Consumer Protection Act, 1986’s definition of service. Contractual patients were given the power to sue doctors for compensation if they sustained injuries during treatment in ‘procedure-free’ consumer protection courts. This defined the relationship between patients and medical professionals.

Medical negligence and civil law

The position regarding negligence under civil law is very important as it encompasses many elements within itself. Whether medical professionals provide free services or not, this principle is applicable under tort law or civil law. It can be argued that tort law begins where the Consumer Protection Act ends. In cases where the services offered by the doctor or the hospital do not fall within the meaning of ‘services’ as defined under CPA, patients may seek compensation under tort law under negligence. In this case, the patient has to prove that the negligence of the doctor or hospital caused him to suffer injury.

Negligence cases, such as improper blood transfusions, the accidental retention of a mop within a patient post-surgery, unauthorized organ removal or an adverse effects from wrong medicine administration could all be considered breaches of these implicit obligations. When healthcare workers administer care, they are essentially pledging their expertise in making assessments and solutions, commonly referred to as an “implied undertaking”.

Landmark judgement on Medical Malpractice

The Supreme Court judgment in Jacob Mathew vs. State of Punjab is a landmark judgement as the Supreme Court has framed guidelines for Doctors who are held criminally liable on account of their professional negligence or deficiency of service. According to the complaint made on behalf of the family members of the deceased, Jiwan Lal, who was a patient, the hospital could not provide oxygen in time because there was no gas in the cylinder. The Supreme Court said that extreme care and caution should be exercised while initiating criminal proceedings against medical practitioners for alleged medical negligence and drew up elaborate safeguards for them, including avoiding arrest unless it was inevitable.

Drawing elaborately from established provisions of law and practice, the Bench ruled that this was necessary for, the vital service which medical profession renders to human beings is probably the noblest of all and hence there is a need for protecting doctors from unjust prosecutions. Negligence in the context of medical profession cannot be proven by an error of judgment or an accident alone, it stated.

1. Kunal Saha Vs. AMRI (Advanced Medical Research Institute) 

In March 1998, Anuradha – a child psychologist – returned to her hometown Kolkata on vacation. Suffering from skin rashes, she consulted Dr. Sukumar Mukherjee on April 25 without receiving any medication. Yet, when the condition worsened, the doctor prescribed Depomedrol injection 80 mg twice daily which was heavily criticised by experts at a later date. The injection’s effects were drastic so much so that Anuradha had to be admitted to AMRI on May 11 under Dr Mukherjee’s watch. Subsequently, her husband Saha filed a plea for compensation worth 77 crores before NCDRC. Although his claim was granted with an amount of 1.72 crore, this sum was reduced by 10% due to the hospital’s negligence leaving him with 1.55 crores instead. Furthermore, Abani Roy Chowdhury – another doctor involved in Anuradha’s treatment passed away during her case’s duration.

When her health failed to improve in Kolkata, she moved to Breach Candy Hospital in Mumbai where she was diagnosed with Toxic Epidermal Necrolysis (TEN). On May 28, 1998, she passed away there. Her death was caused by gross negligence by the doctors and both hospitals, and Saha filed a criminal and civil lawsuit against them. Those were the facts and circumstances of the case; on October 24, 2013, the Supreme Court handed down the final verdict and awarded compensation of around 6.08 crore for the death of his wife.

2. In the case of Krishan Rao vs Nikhil Super Speciality Hospital (2010) 

Krishna Rao, an officer in the malaria department, filed a complaint against the hospital for misdiagnosing his wife’s condition as typhoid and administering medication for it instead of malaria fever. The complainant’s wife experienced respiratory issues and to further compound matters, oxygen was applied without determining its necessity. Consequently, medications were given that were not necessary for her ailment, thereby displaying negligence on the part of the hospital towards its patient. As a result of the judgment, Rao was awarded a compensation of Rs 2 lakhs. In this case, the principle used was Res Ipsa Loquitor, which means “the thing speaks for itself.”

Medical Malpractice law in the United States

In the US, medical malpractice law is generally regulated by each state. A patient must prove that they sustained an injury due to inadequate care in order for them to be awarded monetary compensation. The timeframe in which the claim must be filed is called the “statute of limitation,” and differs between states. Then, if it’s proven that negligence caused the injury, a court will decide the amount of damages – this includes both economic and non-economic loss. To guard against medical negligence or unintentional harm, many physicians have malpractice insurance; some institutions even make it mandatory for hospital privileges or employment with a medical group.

Medical malpractice is a type of tort law, derived from the Latin word for “wrong”. It covers acts and omissions by medical professionals that deviate from accepted norms in the medical community and cause injury to patients. A central concept of this field of law is the legal standard of the “reasonable person” – a fictitious construct used to determine if a duty of care has been breached, based on what an individual with average capacity would do or not do in similar circumstances.

Medical malpractice law in the United States has its roots in English common law. Developed through court decisions, this system is the basis of our jurisprudence and has been exported to other countries formerly part of the British Empire. It is mainly determined by state laws, which may result in varying rules between states. During the last three decades, state legislatures have also had an impact on medical malpractice regulation, further contributing to differences among American jurisdictions.

More about Medical Malpractice law in the United States

The legal concept of a “Good Samaritan” dictates that those who voluntarily offer assistance to those who are injured or ill cannot be held liable for any unintentional injury or wrongful death. In the United States, there exists significant variation between jurisdictions in regards to who is exempt from liability and the scope of exemption. The majority states place no obligation on anyone to provide aid, although there are exceptions such as Vermont and Minnesota, in which a reasonable level of assistance must be provided in emergency situations – typically just calling 911. Should the duty be disregarded, it is typically classified as a petty misdemeanor offense.

Good Samaritan provisions may not always be uniformly applied, but they share some common elements. Imminent peril can alter the scope of such laws; a court may consider the rescuer’s actions reckless and unnecessary if there is no emergency and yet they choose to intervene, leading to injury. Once aid is rendered, it must not be abandoned until another rescuer takes over or for the purpose of contacting medical care, unless doing so would pose a risk. In cases where the patient is unable to give their consent, legal doctrine permits rescue anyway under the principle that “peril invites help.”

In conclusion, Good Samaritan laws may protect those giving assistance from legal repercussions, provided the circumstances suit and they are followed in the relevant jurisdiction. Certified healthcare professionals who restrict their response to their training level are generally covered. However, even those who lack such qualifications may be exempt under certain jurisdictions, as long as their actions were rational.

Legal system of the United States

The adversarial system of law is used in the US and other common law countries to resolve civil disputes between parties. Advocates from each side make skillful arguments before an impartial judge or jury [19]. On the other hand, inquisitorial systems are typically employed in continental European countries operating under civil law based on Roman or Napoleonic code. Here, judges investigate all sides of a case and determine its outcome. The Franco-Italian Code championed by Napoleon Bonaparte sought to establish legibility and accessibility of the law. Drafted by esteemed jurists, this Code drew upon previous French and Roman legislation, fundamentally changing France’s civil legal structure as well as having an effect on other countries’ systems.

The aggrieved patient who begins a lawsuit is referred to as the plaintiff or complainant. The filing of the complaint is so they may receive a legal remedy from the court. If they are successful, the judgment will be issued in their favor with a court order for damages. The person against whom the complaint is made is the defendant; for medical malpractice this can include physicians, laboratories, medical centers, or professional organizations that the doctor belongs to. A case’s identification states the plaintiff first; thus it’s known as “Plaintiff v. Defendant.”

A medical malpractice lawsuit in the U.S. can be initiated by filing a summons, claim form, or complaint – referred to as pleadings – which detail any alleged wrongs committed by the defendant physician and demand relief. In certain jurisdictions, legal action is triggered via physical delivery of documents onto the defendant doctor, as performed by a process server; these documents are then filed with the court along with an affidavit confirming they were given to the defendant according to established legal procedures.

FAQ
1. What type of lawyer handles medical malpractice

Lawyer should be registered and a practicing lawyer having expertise in this field. A lawyer one who is known to the local laws.

2. How to file Medical malpractice suit without a lawyer?

Medical malpractice suit cannot be filed without a lawyer. It will need a well learned and practicing lawyer.

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