medical negligence group 21

8/2/2019 Medical Negligence Group 21

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Medicalnegligence


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Definition

Negligence is the breach of aduty caused by the omissionto do something which a

reasonable man, guided bythose considerations whichordinarily regulate the

conduct of human affairswould do, or doing somethingwhich a prudent and

reasonable man would not do


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Duty & Obligationof DoctorDuties to patient

Duties to public

Duties towards law enforcersDuties not to violate

professional ethics.

Duties not to do anythingillegal or hide illegal act.

Duties to each other.


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Negligence &

Deficiency of Service

Deficiency in medical practice hasbeen equated with medicalnegligence in CPA.

However where there is nonegligence in treatment but onlydeficiency of service is seen likeloss of path samples, wrong

billing, delay in investigations etc.However the same principle has

been applied for both.


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Civil law and

negligence A doctor can be held liable for negligence only if one can

prove that she/ he is guilty of a failure of if acting withreason that no doctor with ordinary skills would beguilty in resonanable care.

If the doctor has adopted the right course of treatment,if she/ he is skilled and has worked with a method andmanner best suited to the patient, she/ he cannot beblamed for negligence if the patient is not totally cured.

The complainant must prove the allegation against thedoctor by citing the best evidence available in medicalscience and bypresenting expert opinion .


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INFORMED CONSENT

Informed consent is a legal procedure toensure that the patient knows all of therisks and costs involved in a treatment.

This includes informing about the natureof treatment, possible alternativetreatments, and possible risks andbenefits of the treatment.

For the informed consent to beconsidered valid , the patient must becompetent and the consent should begiven voluntarily.


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TORT

A breach of any of the duties gives a rightof action for negligence to the patient- Acivil action for tort of negligence

To establish Tort of negligence threeingredients are essential-

X owed a Duty of care to Y Xs acts or omissions constituted breach

of those duties Leading to an injury or damage to Y Must be shown that there was a causal

link between the breach of duty andharm.

it must be shown that the harm was nottoo remote.


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The Bolam Test

The standard of care which is requiredfrom a medical practitioner as laiddown by McNairJ in Bolam v FriernHospital Management Committee(1957)1 WLR 582-

the test is the standard of the ordinaryskilled man exercising and professing tohave that special skill. A man need notpossess expert skill, it is well established

law that it is sufficient if he exercisesthe ordinary skill of an ordinarycompetent man exercising thatparticular article.


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CASE LAW


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(1) Where services are rendered free of

charge to everybody availing of the said service;

(2) Where charges are required to be paid by

persons availing of services, but certain

categories of persons who cannot afford to pay

are rendered service free of charge, and

(3) Where charges are required to be paid by

persons availing of services, but certaincategories of persons who cannot afford to pay

are rendered service free of charge.


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Dr Laxman Joshi vs. DrTrambak godboleThe Supreme Court held

that the duty of a doctor will include (a) a

duty of care in deciding whether to

undertake a case and

(b) a duty of care in deciding what

treatment to give or

(c) a duty of care in administration of that

treatment.Any breach of these duties gives a rise of

action for negligent acts towards the

patient.


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The court observed that the doctor has the

discretion in choosing the treatment, which

he proposes to give to the patient in one way

or the other. The discretion of the doctor is relatively

wider in cases of emergency.

In this way the Supreme Court of India has

affirmed the English law on the subject, viz.that the breach of duty of care is the basis for

liability for negligence and secondly it lays

down the standard of care i.e. the doctor must

bring to his task a reasonable degree of skilland knowledge and must exercise a

reasonable degree of care.


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Criminal negligence

Section 304A of the Indian Penal Code of 1860 states thatwhoever causes the death of a person by a rash ornegligent act not amounting to culpable homicide shallbe punished with imprisonment for a term of two years,or with a fine, or with both.

the Supreme Court has pointed out that liability in civillaw is based upon the amount of damages incurred; incriminal law, the amount and degree of negligence is afactor in determining liabilityie gross negligence.However, certain elements must be established to

determine criminal liability in any particular case is the motive of the offence

the magnitude of the offence

the character of the offender


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Negligence, Rashness,and Recklessness

A negligent person is one who inadvertentlycommits an act of omission and violates apositive duty.

A person who is rash knows the

consequences but foolishly thinks that theywill not occur as a result of her/ his act.

A reckless person knows the consequencesbut does not carewhether or not they result

from her/ his act. Any conductfalling short of recklessness and

deliberate wrongdoing should not be the subjectof criminal liability


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Non-Allopath

practicing AllopathyIf a person practices medicine without

possessing either the requisite qualification

or enrolment under Indian Medical Council

Act, 1956, he/she becomes liable to bepunished with imprisonment or fine or both

The Honble Supreme CourtinPoonam

Verma Vs A. Patel & Ors:I (1996) CPJ 1 (SC)


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BURDEN OF PROOF Generally accepted by the Common Law (English

Law), the Burden of Proof lies with the plaintiff orcomplainant or the patient during the courtproceeding i.e. the patient has to show the fourelements necessary to show negligence:

Duty of care

Breach of duty

Injury

Proximate cause The medical professional has to or can bring his

own account the facts to disprove plaintiff orpatient.


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RES IPSA LOQUITUR RES IPSA LOQUITUR is it speaks for

itself or thing speaks for itself.

This doctrine is accepted in cases thatclearly show the defendant to be on the

wrong side of the law .

The incident itself is sufficiently evidentand the court requires no other proof orevidence. This is an exception to thegeneral principle of Burden of proof,

which lies with the plaintiff orcomplainant.

eg. :Operating on wrong part of the body,leaving foreign material in the body.


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Compensation

Fine

Cancellation of license

Imprisonment.


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Apart From CPA Patient CanComplain To

a) Medical Council of India and DentalCouncil of India.

b) Civil Courts.

c) MRTP (Monopolies and RestrictiveTrade Practices Commission)

d) Public Interest Litigation.

e) Sections of Indian Penal Code, 1860


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medical negligence group 21

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