Medical Negligence During the Pandemic

by Abha Kashyap Managing Patner

In 2020, the whole world experienced mortal terror as one. The rapid spread of the coronavirus had disastrous effects on the economy, people and medical infrastructure of all the nations across the globe. With an unprecedented load on medical infrastructure, many cases of medical negligence sprung up which have necessitated action to be taken by the Legislature or Judiciary.

Through this process, the Indian government formulated various rules and regulations to prevent the spread of the virus and introduced diverse laws and schemes to protect the citizens from the unfavorable consequences. Despite an acute shortage of resources and personnel, many hospitals and frontline workers were blamed for medical negligence. There were even incidents of doctors being attacked by the families of the deceased.

This in turn has inculcated a sense of fear in the minds of the doctors. To remove this fear and allow medical staff to work at their best, the Epidemic Disease (Amendment) Bill, 2020 was passed in September 2020. This prospective law which provided protection to the health workers against any sort of violence. A zero-tolerance attitude was ensured in the bill, any individual who attacks any doctor or healthcare worker during fighting against present pandemic or any such other situation will be punished with 7 years of imprisonment^{^[1]}.

The past few months in particular have witnessed various accusations on the medical fraternity for negligence ranging from hospital admission being denied to patients for the lack of test reports/documentation, severity of the patient being miscalculated to oxygen supply being restricted in places due to laxity. In the pre-covid world, medical negligence was of utmost concern since human lives are at stake. However, in a situation where Doctors and healthcare workers have been working round-the-clock in adverse working conditions without adequate resources being made available to them, the question has arisen as to how much liability can assigned to them.

Courts have had the view that the negligence should be ascertained from the point of view of a doctor as they have a specialised skill set and knowledge. Just because a doctor has a different diagnosis or applies a treatment technique which was unsuccessful, they cannot be held liable for medical negligence. This is especially true during a pandemic involving a disease with no specific treatment methodology and changing dynamics. In the same manner, the death of a patient due to a shortage of oxygen cannot be blamed upon doctors. Only where the health worker has not performed his/her duty for proper standard of care resulting in suffering, or there is an error in judgement by a doctor due to neglected act or due to absence of a duty to perform by the doctor during the course of treatment shall be held liable.

The courts have been trying to strike a balance between the rights of patients to be treated properly and providing doctors independence to take decisions without the fear of criminal liability. In this light the current scenario – unfamiliar to everyone – has made matters more complicated yet.

The government aims to provide strict guidelines for considering an act as medical negligence and provide definite interpretation of the “standard of care” to be taken by the healthcare workers. The main focus as always should be on implementation of the at the ground level and ombudsman at district levels to keep a check on both sides.

[1] COVID-19: Indian government vows to protect health care workers from violence amid rising cases. BMJ 2020; https://www.bmj.com/content/369/bmj.m1631

Originally posted on www.kpalegal.com on 6th July 2021