Medical malpractice is rampant in many countries across the globe. The term ‘medical malpractice’ refers to the problem of negligence or lapse in the treatment of a patient by a doctor which negatively affects the health of the patient. In the name of welfare and betterment of the patient large privately owned hospitals and nursing homes are reaping exorbitant profits by extorting money from the patient relatives. Most private practitioners have a tendency to provide a long list of tests to be done as a precautionary measure in case of simple health issues like fever and cold. In many cases, this is just to reap greater profits. In other cases, medical malpractice results from the carelessness or lack of knowledge of the healthcare personnel responsible. Medical negligence in the legal sense of the terms falls within the category of a personal injury case.
This issue is rampant in developing countries because there are several loopholes in the judiciary system, which allows such malpractices to occur frequently without stern action and remittance. Developed countries like Britain, U.S.A. and Sweden have witnessed a decline in the number of cases claiming medical malpractice as a cause of personal injury.
In India, special consumer courts deal with cases and complaints of medical negligence. There are several sections within the Indian Constitution which deal with the issue in general and specific. The Indian Penal Code or IPC has placed a medical practitioner at a different level from a regular person. Section 304A[10] of the Indian Penal code says that If a person causes a death of a person by engaging in a negligent or rash act that is not equivalent to homicide then the concerned person will be penalized with an imprisonment and/or fine. This means that a doctor who is proven guilty of negligence can be imprisoned or/and fined in India. Healthcare is a service which is provided to people. So, problems of medical negligence also fall within the Consumer Protection Act of India which mentions that the patient can claim compensation if he/she has sustained harm or injury in the course of treatment because of the carelessness of the doctor or the hospital. The Indian civil law is useful when dealing with medical malpractice issues. When the patient suffers permanent damage because of the carelessness of the doctor which cannot be covered under the Consumer Protection Act then the civil law is put to use. The onus in case of civil law is upon the patient to prove negligence.
Medico-legal history of India shows that it is very difficult to prove medical negligence in India. This is because in India in order to prove medical negligence opinion and diagnosis of a case is to be done by medical practitioners who are a part of State Medical Councils. The difficulty here is that majority of the doctors are unwilling to testify against corporate hospitals before a court of law. However, not all is lost, in the last decade, there has been an increase in the number of verdicts, which have recognised the negligence and made provisions for compensating the patient and his family.