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

1. 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.