I was researching medical negligence laws in India for an article I am writing and discovered some interesting things:
- In the United States, the Mecca of medical malpractice lawsuits, most suits are filed under that clause of negligence in a civil case against the doctor, hospital or enterprise delivering healthcare. This falls under common law framework, ie Torts. (Don't actually know to much about the US System - this is what I gathered). Therefore, damages and awards can be given for not emotional, psychological, physical, economic and various other damages and previously, there was no cap on the amount of damages that could be awarded - though this has now changed with Tort reform.
- In India, there are three ways to prosecute for medical negligence.
- Patients who pay for the services of a physician are protected under the Consumer Protection Act of 1986 which protects the contractual rights of the parties involved in the delivery and receipt of medical "service." This is not a tort law or criminal law and therefore, the awards are limited - especially by the court that tries the law. Higher level courts or bodies (district vs. state) can award higher amounts of money. Also, consumer courts work more quickly than the normal civil legal system which is mired with difficulty.
- Those who receive free medical treatment are not protected by the Consumer Protection Act of 1986 as they are not legally receiving a "service" since they do not pay. They instead can prosecute doctors under "Medical Negligence" in a civil case under Tort Law. However, this system of justice in India is highly inefficient and embroiled in corruption. Not the best way to protect the interests of those who are already disadvantaged. It's like saying - here's free care since you can't afford to pay, but your nation protects you under an antiquated system that doesn't work so well if something goes wrong, versus those who can pay and are protected by a better law. I shall dedicate a post to this as soon as I get the article out.
- If negligence results in the death of a patient, then a doctor can be tried according to criminal law.
