SC: When requested, all hospitals to provide medical records within 72 hrs

The Hon’ble Supreme Court, on 16th December 2019, in the matter of Maharaja Agrasen Hospital & Ors. v. Master Rishabh Sharma & Ors. observed that all hospitals, whether Government or private are liable to maintain the medical records, and provide the same to patient or their attendants within 72 hours of the request.

The Hon’ble Supreme Court observed that:

All hospitals, whether Government or private are liable to maintain the medical records, and provide the same to patient or their attendants within 72 hours of the request. (Para 11.1.3)

A court is not bound by the evidence of an expert, which is advisory in nature. (Para 11.3.2)

(Para 11.4.1.) Medical negligence comprises of the following constituents:

(1) A legal duty to exercise due care on the part of the medical professional;

(2) failure to inform the patient of the risks involved;

(3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional;

(4) if the risk had been disclosed, the patient would have avoided the injury;

(5) breach of the said duty would give rise to an actionable claim of negligence.

The cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort. (Para 11.4.1.)

In a complaint of medical negligence, the burden is on the complainant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner’s breach of duty. (Para 11.4.1.)

Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. (Para 11.4.2)

A medical professional should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes reasonable skill that other ordinarily competent members of his profession would bring. (Para 11.4.6)

The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. (Para 11.5.4)

Copy of judgement: Judgement_16-Dec-2019

-Adv. Tushar Kaushik

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