MEDICAL NEGLIGENCE

Negligence is the breach of a legal duty to care. It means carelessness in a
matter in which the
Laws mandate carefulness. A breach of this duty gives a patient the right to
initiate action For negligence. Negligence is a large and amorphous subject.
Almost seventy-ve years after the seminal decision of the House of Lords in
Donoghue v. Stevenson, the boundaries of negligence are still as blurred as
ever. Some of the obscurity surrounding this tort is inescapable. However, this
article tries to give an overview of the tort of negligence.
Negligence, in general, means omission to do something which a reasonable
man, guided by those of ordinary considerations which ordinarily regulate the
conduct of human affairs would do or the doing of something which a
a reasonable and prudent man would not do. Wineld denies negligence as a breach of a legal duty to take care, which results in damage, undesired by the
defendant to the plaintiff.

In other words, negligence is a failure to exercise the care that a reasonably
prudent person would exercise in like circumstances. Further negligence in its
legal acceptance includes acts of omission as well as commission. The area of
tort law known as negligence involves harm caused by carelessness, not
intentional harm.
Medical negligence is a combination of two words. The second word solely
describes the meaning, though the meaning of negligence has not been
described in a proper way it is an act recklessly done by a person resulting
in foreseeable damages to the other. Negligence is an offense under tort, IPC,
Indian Contracts Act, Consumer Protection Act, and many more. Medical
Negligence basically is the misconduct by a medical practitioner (physician,
surgeon, or doctor) by not providing enough care resulting in a breach of their
duties and harming the patients which are their consumers. In the medical
profession terms like “bedside manners” and work ethics in a hospital are
important parts of their job. A professional is deemed to be an expert in that
eld at least; a patient getting treated under any doctor surely expects to get
healed and at least expects the doctor to be careful while performing his
duties. Medical negligence has caused many deaths as well as adverse results
to the patient’s health. This article focuses on explaining negligence under
various laws, professional negligence, medical negligence, and landmark as
well as recent cases in India, the United States of America, and the United Kingdom.
This provides information on liability that can be incurred by the victim of the
medical malpractice. It aims to describe elements of the said topic, who carries
the ‘onus probendi’ states case laws and what precedents they put forward, and what damages are awarded to the plaintiff if the injury is proved.

After the Consumer Protection Act, 1986, came into effect, a number of
patients have led cases against doctors. This paper is a summary of legal
decisions related to medical negligence: what constitutes negligence in civil
and criminal law, and what is required to prove it. Public awareness of medical
negligence in India is growing. After the act has come into force some patients
have led legal cases against doctors, have established that the doctors were
negligent in their medical service, and have claimed and received
compensation. As a result, a number of legal decisions have been made on
what constitutes negligence and what is required to prove it.
Medical Negligence
“No doctor knows everything. There’s a reason why it’s called “practicing”
medicine.” Humans are bound to make errors. Though patients see the doctors
as God and believe that their disease will be cured and they will be healed by
the treatment but sometimes even the doctors make mistakes which can cost a
lot to the patients in many ways. Sometimes the mistakes are so dangerous
that a patient has to suffer immensely.
“In my opinion, our health care system has failed when a doctor fails to treat an
illness that is treatable.” – Kevin Alan Lee.
“Being in such a profession where sick, ill and sufferers are your customers
who look upon you as the almighty, an absolute amount of care is expected.”
Medical negligence also known as medical malpractice is the improper, unskilled,
or negligent treatment of a patient by a physician, dentist, nurse, pharmacist,
or other health care professional. Medical malpractice occurs when a healthcare provider strays from the recognized “standard of care” in the treatment of
a patient.
The “standard of care” is denied as what a reasonably prudent medical
provider would or would not have done under the same or similar circumstances.

“The important question isn’t how to keep bad physicians from harming patients; it’s how to keep good physicians from harming patients. – Atul Gawande”
Mistakes or Negligence in the medical profession may lead to minor injuries or
some serious kinds of injuries and sometimes these kinds of mistakes may
even cause death. Since no man is perfect in this world, it is evident that a
person who is skilled and has knowledge over a particular subject can also
commit mistakes during his practice. To err is human but to replicate the same
mistake due to one’s carelessness is negligence. The fundamental reason
behind medical error or medical negligence is the carelessness of the said
doctors or medical professionals it can be observed in various cases where
reasonable care is not taken during the diagnosis, during operations,
sometimes while injecting anesthesia, etc.
For example, after a severe operation of a patient, he is likely to get infected by
many diseases because of certain reasons which can include loss of blood,
weakness, high dose of medicines. In due course, standard care is expected
from the doctor to give premedication regarding certain infectious diseases. If a
doctor fails to do so due to which a patient suffers from some infection that
can cause a lot of harm or even death in adverse cases, the doctor is said to
have committed medical negligence or malpractice.
Essentials
Doctor’s duty to attend to the patient with care
Medicine is such a profession where a practitioner is supposed to have
the requisite knowledge and skill needed for the purpose and has a duty to exercise
a reasonable duty of care while dealing with the patient. The standard of care
depends upon the nature of the profession. A surgeon or anesthetist will be determined by the standard of the average practitioner in that eld while in the case of
specialists, a higher skill is needed.

If the doctor or a specialist doesn’t attend a patient admitted in emergency or
under his surveillance and the patient dies or becomes a victim of consequences
which could have been avoided with due care from the doctor, the doctor can be
held liable under medical negligence. This was held in Sishir Rajan Saha v. The
the state of Tripura that if a doctor did not pay enough attention to the patients in
government hospitals as a result of which the patient suffers, the doctor can be
held liable to pay compensation to the patient.
Moreover, the liability of the doctor cannot be invoked now and then and he
can’t be held liable just because something has gone wrong. For fastening the
liability, a very high degree of such negligence was required to be proved. A
a doctor or a medical practitioner when attending to his patients owes him the
following duties of care:
A duty of care in deciding whether to undertake the case
A duty of care in deciding what treatment to give

3. A duty of care in the administration of the treatment
   When you go to a doctor, you expect to be seen promptly and attentively, and at
   a reasonable cost. You expect the doctor to be knowledgeable about the latest
   advances in his eld of specialty, and educate you about your diagnosis and
   prognosis, and explore the best possible solution to your health issue. In short,
   you expect to be healed. But for millions of people, what they expect is far from
   what they receive.
   Doctor acting in a negligent manner
   It is well accepted that in the cases of gross medical negligence the principle of
   res ipso loquitur is to be applied. The principle of res ipso loquitur is said to be
   essentially an evidential principle and the said principle is intended to assist the claimant.

while deciding the liability of the doctor it has to be well
established that the negligence pointed out should be a breach of due care
which an ordinary practitioner would have been able to keep.
Latin for “the thing speaks for itself,” a doctrine of law that one is presumed to
be negligent if he/she/it had exclusive control of whatever caused the injury
even though there is no specific evidence of an act of negligence, and without
negligence the accident would not have happened. A doctor is not an insurer for
the patient, inability to cure the patient would not amount to negligence but
carelessness resulting in an adverse condition of the patient would.
In Gian Chand v. Vinod Kumar Sharma, it was held that shifting of the patient
from one ward to another in spite of the requirement of instant treatment to be
given to the patient resulting in damage to the patient’s health then the doctor
or administrator of the hospital shall be held liable under negligence.
In Jagdish Ram v. the State of H.P., it was held that before performing any surgery
the chart reveals information about the amount of anesthesia and allergies
of the patient should be mentioned so that an anesthetist can provide amply
amount of medicines to the patient. The doctor in the above case failed to do so as
As a result of the overdose of anesthesia, the patient died and the doctor was
held liable for the same.
Liability
The liability of the person committing the wrong can be of three types
depending on the harm or the injury suffered by the injured person they are :

1. Civil Liability
   Civil liability usually includes the claim for damages suffered in the form of
   compensation. If there is any breach of duty of care while operating or while the
   patient is under the supervision of the hospital or the medical professionals
   they are held to be vicariously liable for such wrong committed. And are liable.

to pay damages in the form of compensation. At times the senior doctors are
even held vicariously liable for the wrongs committed by the junior doctors. If
someone is an employee of a hospital, the hospital is responsible if that
employee hurts a patient by acting incompetently. In other words, if the
employee is negligent (is not reasonably cautious when treating or dealing with
a patient), the hospital is on the hook for any resulting injuries to the patient.
In Mr. M Ramesh Reddy v. State of Andhra Pradesh, the hospital authorities
were held to be negligent, inter alia, for not keeping the bathroom clean, which
resulted in the fall of an obstetrics patient in the bathroom leading to her
death. A compensation of Re. 1 Lac was awarded against the hospital.

1. Criminal Liability
   There may be an occasion when the patient has died after the treatment and
   criminal case is led under Section 304A of the Indian Penal Code for allegedly
   causing death by rash or negligent act. According to S. 304A of the IPC, whoever
   causes the death of any person by a rash or negligent act not amounting to
   culpable homicide shall be punished by imprisonment for up to two years, or by
   ne, or both.
   In Dr. Suresh Gupta’s Case – Supreme Court of India, 2004 – the court held that
   the legal position was quite clear and well settled that whenever a patient died
   due to medical negligence, the doctor was liable in civil law for paying the
   compensation. Only when the negligence was so gross and his act was as
   reckless as to endanger the life of the patient, criminal law for offence under
   section 304A of Indian Penal Code, 1860 will apply. Indian Penal Code 1860
   sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 contain the law of
   medical malpractice in India.
   The conduct of medical malpractice was brought under the Consumer
   Protection Act, 1986.

Due to the landmark case of the Indian Medical Association vs. V. P. Shantha & others, The judgment in this case denied
medical care as a “service” that was covered under the Act, and also clarified
that a person seeking medical attention may be considered a consumer if
certain criteria were met.
-The service provided was not free of charge or for a nominal registration fee;
-If free, the charges were waived because of the patient’s inability to pay;
-The service was at a private hospital that charges all patients; or
-Any service rendered which was paid for by an insurance rm.
This meant that certain categories of patients could now sue errant health care
providers for compensation under the Consumer Protection Act, 1986, as a
breach of contract. Only facilities and doctors that provided all services free of
cost to all clients were not liable under the CPA. However, even patients that do
not fall under the category of consumers under the
Act can sue for negligence under the law of Torts. The burden to prove
negligence, however, is on the patient. In the landmark case of Dr Laxman
Balkrishna Joshi v. Dr Trimbak Bapu Godbole the Supreme Court ruled that if
the treatment done by the doctor is proper according to the body of medical
professionals who are skilled in that particular eld he cannot be held
negligent just because something went wrong in the treatment.

The famous UK Bolam Test case is the backbone of emerging laws on medical
negligence. The Test came from the case of Bolam v Friern Hospital
Management Committee, the judgment was given by McNair J. Here the facts
were that Mr. Bolam was a voluntary patient at Friern Hospital a mental health
institution run by the Friern Hospital Management Committee. He agreed to
undergo electro-convulsive therapy.

Foreign jurisdictions

UNITED KINGDOM

his body was not restrained during the procedure. He ailed about violently
before the procedure was stopped, and he suffered some serious injuries,
including fractures of the acetabula. He sued the Committee for compensation.
He argued they were negligent for not issuing relaxants; not restraining him;
not warning him about the risks involved. The court held that a doctor is not
guilty of negligence if he has acted in accordance with the practice accepted as
proper by a responsible body of medical men skilled in that particular realm.
The civil procedure rules in England and Wales allow for claims for medical
negligence to be started within 3 years of the alleged negligence occurring or
within 3 years of the victim becoming aware of possible negligence. This is of
relevance to minors where the 3 years starts when the minor reaches the age of
maturity (i.e.18 years of age).It has been argued by medical law academics that
any patient we come across in our professional environment is owed a duty of
care, not only by the doctors the patient comes into contact with, but also by
those who are employed by the Trust to deliver patient care. For example, a
patient who has a cardiac arrest on a hospital corridor is owed a duty of care by
any doctor who happens to be passing, and provision of assistance in such
circumstances would probably be expected and would not be classed as a
‘good Samaritan’ act, however this academic view has not currently been
tested in a British court environment to our knowledge.
In Crawford v Board of Governors of Charing Cross Hospital, a patient sustained
a brachial plexus injury from being in one position for too long a time period. An
article describing such a complication had been published 6 months previously.
However, the anaesthetist had not read this article and was not aware of its
implications and so was found not to have breached their duty of care to the
patient. Moreover, errors of judgement do not automatically amount to
breaches of duty. They only do so in circumstances where the doctor has not acted with a level of care that would be expected from a reasonably competent
professional.

UNITED STATES OF AMERICA

In USA, the laws of medical negligence are dealt by the states not the federal
government. They have been derived from the common law. The legal system is
designed in such a manner that extensive discoveries and negotiations
between the parties is to resolve the dispute without going into the judicial
proceedings. The plaintiff party has to prove that they had been provided with
substandard medical care that caused their injury.
It depends on the person in some states of United States suit ling starts when
the person is injured and in other case it is not initiated until the person knows
that they have been injured. Damages take into account both actual economic
loss such as lost income and cost of future medical care as well as
noneconomic losses such as pain and suffering. Doctors in United States
generally have medical negligence insurance to protect themselves from the
case of malpractice and unintentional injuries. In some cases this insurance is
required if the doctor wants to attain hospital privileges or employment in the
medical eld. Lawsuits alleging medical malpractice in US are led in a state
trial court. Such trial courts have jurisdiction over medical malpractice cases
which has the legal authority to hear and decide the case.
In the United States, medical malpractice suits rst appeared with regularity
beginning in the 1800s. However, before the 1960s, legal claims for medical
malpractice were rare, and had little impact on the practice of medicine. Since
the 1960s the frequency of medical malpractice claims has increased; and
today, lawsuits led by aggrieved patients alleging malpractice by a physician
are relatively common in the United States.

AUSTRALIA

Australia has the highest rate of medical negligence in world according to the
reports of
World Health Organisation (WHO). According to the statistics of the reports of
WHO – 18,000 people may die every year in hospitals through preventable
medical negligence in Australia; 50,000 people suffer from permanent injury
annually as a result of medical negligence in Australia; 80,000 Australian
patients per year are hospitalized due to medication errors.
The present law that prevails in Australia regarding the medical negligence was
given in the case Rogers v. Whittaker thereby establishing the ‘failure to warn’
principle where the patient sued a doctor for failing to warn about a slight risk
of debilitating side effects following an operation.
Australia, like the mainstream in United Kingdom, used to follow the precedent
of bolam’s Test in the case of Bolam v Friern Hospital Management Committee,
However, the law or the precedent followed now in Australia had been laid
down in the case of rogers v.
Whittaker, especially differed from bolam’s test on the basis of the fact that
bolam’s test is directed towards the actual provision of treatment whereas the
failure to warn principle is related to the risks involved in the provision of the
treatment, in the case of rogers v. whitakers, the judges opined that the issues

were about the quality of the advice given not the treatment, additionally, the
bolam’s granted the medicine practitioners the unhindered privilege to take
complete defense and absolve themselves from the liability having acted with
accordance to the mainstream medical practices among doctors, thus
becoming a matter of medical judgement.

Coclusion

It is not stated that doctors are negligent or irresponsible but while performing
the duty which requires a lot of patience and care, often many practitioners fail
or breaches their responsibility towards the patient. Medicine which is one of
the noblest professions requires setting a realm which can benet the victims
of various diseases. Many doctors even the specialist sometimes neglects
small things to be taken care of while practicing which may result in damages
to the patients that could have been avoided or sometimes even the death of
the patients.
This type of professional negligence needs more focus than to include it in
other laws or statutes. An independent and unique legislature shall be set up to
govern the malpractice. In our country recently in a case Krishna Iyer v. State of
Tamilnadu and Others the Apex Court awarded a compensation of 1.8 crores on
July 1, 2015 as she lost her eyes in 1996. This is highest amount of
compensation awarded in the country. Many activists and the victims of
medical negligence have been alleging to get redressal against mala-ed acts
of medical practitioners and doctors.
Not just for medicine, the law shall be made applicable to all the professionals
practicing in different areas which require a requisite amount of skill and duty
of care. People in our country are already victims of many diseases and are
dying due to same, let’s make efforts to reduce these deaths and focus on improvising the profession so that people do not die in the place where they
come to get healed.

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