top of page
Search
leadindia836
Jan 16, 20233 min read

Can I file a murder case against a doctor if a surgery was unsuccessful?

An all-encompassing term, "medical negligence," has gained popularity to describe wrongdoings committed by medical personnel while practicing their trade and interacting with patients. In none of the Indian laws that have been passed, the phrase is defined or even mentioned once.


The hazards a patient faces during surgery have been significantly decreased because of modern surgical facilities' techniques and technologies. But there is still some danger involved with any operation. Having surgery done while under anesthesia carries the risk of serious or deadly complications such as bleeding, nerve injury, or brain damage. However, any surgical risks must be tolerable in light of the situation.


For a straightforward biopsy, for instance, assuming the chance of death would not be reasonable. However, it is realistic to assume that there is a chance of a deadly complication with a risky technique like open heart surgery.

Before performing the procedure, a doctor or surgeon has a professional obligation to inform the patient of all possible hazards. A patient who is hurt during surgery may be entitled to sue for medical negligence if a complication that develops wasn't a reasonable risk.


If a reasonable and responsible physician could have avoided the failure, the failed surgery can constitute medical malpractice. The surgeon may have engaged in malpractice if their negligence or other improper behavior contributed to the failure. Negligence is what separates anticipated risk from malpractice. If a patient wants to successfully file a medical malpractice claim in Missouri, they will need to demonstrate the surgeon's negligence.

Advisory to Doctors and Safeguards in Criminal Prosecution by Supreme Court:


· In the case of Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC 1, Supreme Court gave guidelines:

  1. Strict adherence to current procedures, infrastructure, paramedical staff, and standards for cleanliness and sterility is required.

  2. Normally, no prescription should be issued without a thorough assessment. Avoid the propensity to issue prescriptions over the phone unless there is an immediate necessity.

  3. A doctor should not just depend on the patient's account of his symptoms, but should also conduct any necessary tests and investigations as part of his own analysis.

  4. A specialist should be sought if there is any uncertainty. A doctor should not experiment unless it is absolutely essential, and even then, he should typically obtain the patient's written agreement.

  5. Maintaining a complete record of the diagnosis, treatment, etc.


· In Jacob Mathew v. State of Punjab held that The Supreme Court established some mandatory guidelines that must be followed up until statutory rules or directives are made by the government in collaboration with MCI in order to safeguard doctors from frivolous and unjust charges. These guidelines are as follows:

  1. Private complaints may not be considered unless the complainant has presented the court with prima facie evidence in the form of a reliable opinion provided by another qualified medical professional.

  2. The investigator should consult with a qualified physician who is independent and competent in that field of medicine, preferably one who works for the government and can be relied upon to apply the Bolam test to the evidence gathered throughout the inquiry.

  3. Unless the arrest is required to advance the investigation, gather evidence, or if the investigation officer believes the doctor may flee, a doctor cannot be routinely detained.


Judges do not aim to impose their own expertise on medical practitioners, and the law does not want to make any needless inroads into the domain that is solely their right. The legal system does not take a completely hands-off approach either; it scrutinizes the actions of medical professionals and seeks to punish those who fall short of the minimum standard.

The criteria used to determine the minimum standard are also greatly influenced by the common medical practices and opinions, as well as the body of knowledge that was known at the relevant time. The requirements are reasonable, and accountability is strengthened because no one can escape inspection due to the tightening of culpability in some circumstances.


In cases of medical negligence, taking a lawyer's advice would benefit a person. criminal lawyers in delhi can be consulted if the cause of action has arisen in Delhi. Likewise, if a cause of action has arisen in Gurgaon then a criminal lawyer in gurgaoncan also be consulted. criminal lawyers in lucknow can also be consulted if the cause of action has arisen in Lucknow.


You can also contact Lead India. You can talk to a lawyer while seeking free legal advice. You can also ask a legal question about the legal issue.


Call Us: - +91-8800788535


2 views0 comments

Comments

bottom of page