CONSENT IN MEDICAL NEGLIGENCE CASES IN INDIA
Keywords:
Medical, Consent, Informed, Samira KohliAbstract
Consent is an essential ingredient for valid agreements and contracts. It is also at the core of
most medical negligence cases. The concept has undergone changes in the last half-century,
especially in the medical field, with the legal systems beginning to shift towards a standard that
places a higher standard of disclosure requirements on medical practitioners. The informed
consent standard is a test that has been adopted by the courts in U.K. which promises more
autonomy to the patients, and thus a more favourable stance for plaintiffs. A landmark
judgement in 2008 in India observed that India is not yet ready for this standard and sought to
fall back to the one existing in status quo. While 12 years have elapsed since this judgement,
the author believes its time the standards of consent are revisited. The argument to place greater
reliance on patient autonomy is made after describing the various nuances and intricacies
involved in the concept, laws, and case laws relating to medical consent. The analysis plainly
suggests that a share of the onus shifting on to medical practitioners would ease both the
experience in courts for potential plaintiffs, as well shift the burden to the party most competent
and at a better position to understand and convey medical information. India’s unique socioeconomic situation has to be kept in mind and the author posits that policy relating to shifting
of the prevailing standard of medical consent be researched upon and slowly introduced. This
would allow for better protection of plaintiffs, while also reducing instances of medical
negligence in the first place.
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References
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