MEDICAL NEGLIGENCE

Compiled By: Dr. N.C.Das

WHAT IS MEDICAL NEGLIGENCE?

 Winfield has defined negligence as a tort (civil wrong) which is the breach of a legal duty to take
care which results in damage, undesired by the defendant to the plaintiff. An act involving the
above ingredients is a negligent act.
 Baron Alderson defines negligence in Btyth v. Birmingham Water Works Company as omission to
do something which a reasonable man guided upon by those consideration which ordinarily
regulate human affairs, would do, or doing something which prudent and reasonable man would
not do.
 Charles worth modifies Alderson's definition and defines negligence as a tort which involves a
person's breach of duty that is imposed upon him to take care; resulting in damage to the
complainant.
 The breach of duty may be occasioned either by not doing something which a reasonable man,
under given set of circumstances, would do, or by doing some act which a reasonable prudent
man would not do (IWinfield and Jalou.icz, Tort,5th p.4.2Blyth v. Birmingham Water Works
Company, (1856) 11 Ex 781.3Charlesrworth & Percy, Negligence, 19th ed, p. 16.)tvEdical
negligence is the failure of a medical practitioner to provide proper care and attention and
exercise those skills which a prudent, qualified person would do under similar circumstances.

In the leading case Bolam v. Friern Hospital Management Committee [(1957) 2 All ER, wherein
judge Mc Nair J. has stated as follows:
 In the case of a medical man, negligence means failure to act in accordance with the standards
of reasonably competent medical men at the time.
 A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular art.
 At the same time, that does not mean that a medical man can obstinately and pig-headedly carry
on with some old technique.

In Poonam Verma Vs Ashwin Patel and Others, decided on 10.05.1996, the Supreme
Court observed as follows:

"Negligence as a tort is the breach of a legal duty resulting in omission or commission in doing
something which a reasonable man would do, or doing something which a prudent and
reasonable man would not do with whom he has a special relationship resulting in damage
injury or loss. (See : Blyth v. Birmingham Waterworks Co., (1856).

The definition involves three constituents of negligence:

(1) A legal duty to exercise due care;
(2) Breach of the that duty, or contract
(3) Consequently, resulting in damages.
The breach of duty may be occasioned either by not doing something which is reasonable or, by
doing some act which is not reasonable.
 It is an act of omission or commission on part of a medics in which a patient may be exposed, to
an unreasonable risk of injury resulting in damage, with which he has a special relationship.
LEGAL DUTY TO EXERCISE DUE CARE:
 A duty of care is a legal obligation to avoid causing harm and arises where harm is
'reasonably foreseeable' if care is not taken.
 There must be a sufficient relationship of closeness (sometimes referred to as
'proximity) between the two people in order for a duty of care to exist.
 An example of such a relationship would be a doctor and patient relationship or the
relationship between drivers and other road users.

Skills Of Doctor
Duty Towards Patient
Compliance To Statutory Laws
Duty Towards Society

SKILLS OF DOCTOR:
i. Qualified in modern system of medicine.
ii. Knowledge for giving medical advice and treatment.
iii. Duty of care in deciding whether to undertake the case
iv. Duty of care in deciding what treatment to give
v. Duty of care in administration of treatment
vi. Update knowledge and skills, on the subject
vii. Maintain medical records, medical certificate register
viii. Display details
ix. Observance of all statutory laws and regulations

DUTIES TO PATIENT:
i. Standard care
ii. Providing information to the patient
iii. Consent for treatment
iv. Emergency care

Standard care:

Such care means a degree of care which an average person takes while doing similar job in a similar
situation.

Providing information to patient:

Such information should be provided regarding necessity of treatment, alternative modalities of

treatment, and risks of pursuing the treatment, inherent complication of drugs, duration of
treatment, prognosis and expenses.

Emergency care:

It is the duty of a doctor to attend any emergency case on humanitarian grounds.

State Public Health Laws

1. Compliance of MTP Act 7. Organ Transplantation Act.

2. Compliance of PNDT Act. 8. Artificial Insemination Act.
3. Compliance of BMW Act. 9. Custody of Mentally ill patients
4. Consumer's Protection Act. 10. PNDT (Sex Determination) Act.
5. Right to Information Act. 11 Drugs and Food Adulteration Act.
6. Issue of disability Certificates 12. Ethical Directions

Duties to the community:

1. Preparation of VLC 9. Proper completion of case sheets.

2. Notification of birth & deaths (Medical records)
3. Notification of infectious disease 10. Age Determination by court orders.
4. Notification of unnatural deaths 11. Furnishing medical Opinion on court
5. Conducting medical examination/ direction.
Level of disability 12. Health education on public health issue
6. Issue of medical & fitness certificate 13. Medical help on occurrence of natural
7. Conducting post-mortem Calamities
8. Notification of all accidental cases 14. Help victims of disaster and accidents etc.
15. Abide by Public health law.

 A breach of any of these duties gives a right of action for negligence to the patient- A
civil action for tort of negligence with some exceptions.

 So far as persons engaged in Medical Profession are concerned, it may be stated

that every person who enters into the profession, undertakes to bring to the exercise
of it, a reasonable degree of care and skill.

LAW OF TORT:

 Every individual has a private right and in order to protect the right there is a legal
remedy.
 According to Law of Torts, a doctor shall be responsible for his negligent act.
 According to Sec. 70 of Indian Contract Act, there is a contract (oral, written or
implied) between a doctor and a patient, and both parties are bound by it.
 If a doctor doesn’t give complete or proper treatment then he/she may be held liable.
Similarly, if a patient doesn't pay the fees, doctors can file a civil suit.
 There are some public wrongs. In order to protect the community, the
state/government has the right to punish the wrong doer, through various Acts and
Regulations.

TYPES OF NEGLIGENCE:
1. Criminal Negligence
2. Comparative Negligence
3. Contributory negligence
4. Respondent Superior
5. Vicarious Liability
6. Corporate Negligence

In these cases, the act or inaction was so reckless that it showed lack of concern for
 the injuries that may result. Leaving a pair of scissors inside the abdomen after
operation.
RES IPSA LOQUITUR:

 Generally, in tort , the mere fact of an accident is not proof of negligence.

 But in some cases, negligence is presumed on the defendant since the object
causing injury was in or under his or her control.
 This is the res ipsa loquitur doctrine.
 If the patient has suffered an injury in circumstances, which are explicable only as
being attributed as negligence on part of the doctor, the maxim Res Ipsa Loquitur
(thing speak for itself) may be applied.
 The patient is then entitled to succeed unless the doctor can bring evidence to rebut
the possibility of negligence.

The doctrine may be used where:

i. The accident is of a kind which ordinarily does not occur in the absence of
negligence,
ii. The apparent cause of the accident being within the control of the defendant
iii. And the plaintiff could not have contributed to it.

Comparative Negligence — This applies when the patient is marginally responsible for his

own sickness. For example, a patient has not taken antibiotics as per the advice of the

doctor resulting in wound infection.

Contributory negligence -Contributory negligence occurs when the injured person himself

is found to have contributed to the cause of his loss or injury. In spite of a warning sign for

slippery floor the patient has failed to take reasonable care for his own safety or loss then he

will be found contributory negligent. The amount of damages he can claim will be reduced

according to the extent he is found to have contributed to the loss.

Respondent superior-When supervising officer is held liable for the negligent actions of

subordinates, it is commonly relied upon for negligence on the part of intern doctors carrying

out their duties independently without the supervision of seniors and causing damage. In

such cases the senior will be liable for the employee's negligence.

Vicarious Liability

 Identifies that the organization is liable for the negligent behavior of its employees as
long as the employee or volunteer is acting within the scope of their responsibility.
 This is the liability on the part of the administrator for the negligence of the hospital
staff if he fails in adequate supervision and this overall responsibility of the
administrator on the responsibility of the individuals is knows as vicarious
responsibility.
 An administrator is required to exercises reasonable care to prevent foreseeable
risks and to make safe foreseeable dangerous conditions by repair or warning
  The administrator may be liable if he/she was negligent in providing medical
personnel adequate facilities and equipment's.
 The failure to provide equipment or failure to provide satisfactory equipment has
been the basis for a number of lawsuits.

A patient Injured by another patient cannot enforce a claim against the hospital unless there had
been previous knowledge of a potentially dangerous setting and did not alert the patient. ( Mental
Patient).

The Hon'ble Supreme Court in Poonam Verma Vs A. Patel & Ors: I (1996) CPJ 1 (SC) decision

 Vicarious liability involves the acts of staff members, partners in different situations
 The doctors shall be liable for the act of their staff if they are unqualified.
 But if the staff is qualified and makes a mistake then the doctor may not be held
directly responsible. (Giving wrong medicine)
 Thus, depending upon the situation, the doctor or his staff shall be liable for their act
of negligence.

Corporate Negligence:

Any act of omission on part of the administrator to provide adequate safety and facilities for

patient care.

1. Safety of the patient & staff all areas of the hospital.

2. Control of hospital infection.
3. Cleanliness sanitation
4. Flaw less building structure
5. Drinking Water Supply.
6. Fire Control Measures.
7. Guidelines for safe procedures at different parts of the hospital.
8. Training, Orientation & Motivation of hospital employees.

WHEN BREACH OF DUTY:

 In order to establish whether a duty of care has been breached the court will look first
of all at the standard of care that is expected in the circumstances.
 The standard of care is determined by looking at what a reasonable person would
have done (or not done) in the same circumstances.
 Where a doctor has acted in an unreasonable way or his actions fell well below the
standard expected they will be found to have breached their duty of care.
 For a reasonable and prudent professional:
 The patient is owed a duty to be protected from unreasonable risk of harm regardless
of who is in charge
 When a person accepts a responsibility, they are expected to perform up to the level
of the profession.

DETERMINING BREACH OF DUTY:

Whether or not negligence has occurred is a matter of satisfying four questions.

 Did the doctor (i.e. the person being sued) owe the patient (i.e. the person injured)a duty of
care?
 Did the doctor breach the duty of care?
 Did the patient suffer an injury or other damage?
 Was the injury or damage caused, as a result of the breach of the duty of care?
All these factors must be satisfied.

If even one is not satisfied then the patient will not be able to establish that the defendant
was negligent.

CONSEQUENTLY, CAUSING DAMAGES:

In Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC 39 at 47,
the Apex Court has specifically laid down the following principles for holding doctors
negligent
"Gross medical mistake will always result in a finding of negligence. Use of wrong drug or
wrong gas during the course of anesthetic will frequently lead to the imposition of liability
and in some situations even the principle of res ipsa loquitur can be applied like amputation
of wrong leg, healthy eye etc. Even delegation of responsibility to another may amount to
negligence in certain circumstances. A consultant could be negligent where he delegates the
responsibility to his junior with the knowledge that the junior was incapable of performing
of his duties properly. (Vicarious liability)

In Achutrao Haribhau Khodwa v. State of Maharashtra [AR 1996 SC 23771, the

Supreme Court said—

 "The skill of medical practitioners differs from doctor to doctor. The very nature of the
profession is such that there may be more than one course of treatment which may
be advisable for treating a patient.

 Medical opinion may differ with regard to the course of action to be taken by a doctor
treating a patient, but as long as a doctor acts in a manner which is acceptable to the
medical profession it would be difficult to hold the doctor to be guilty of negligence

In Poonam Verma Vs Ashwin Patel and Others, decided on 10.05.1996, the Supreme
Court observed as follows:

 It is true that a Doctor or a Surgeon does not undertake that he will positively cure a
patient nor does he undertake to use the highest possible degree or skill, as there
may be person more learned and skilled than himself, but he definitely undertakes to
use a fair, reasonable and competent degree of skill.
In Jacob Mathew Vs. State of Punjab (2005)6 SCC 1, while dealing with the tests to be
kept in mind by the courts in dealing with cases of medical negligence, the Hon'ble
Supreme Court observed as follows:
 "So long as it can be found that the procedure which was in fact adopted was one
which was acceptable to medical science as on that date, the medical practitioner
cannot be held negligent merely because he chose to follow one procedure and not
 another and the result was a failure."

 Indiscriminate prosecution of medical professionals for criminal negligence is

counter-productive and does no service or good to the society. "
 A simple lack of care, an error of judgment or an accident, is not proof of negligence
on the part of a medical professional.

So long as a doctor follows a practice acceptable to the medical profession of that

day, he cannot be held liable for negligence merely because a better alternative
course or method of treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice or procedure which
the accused followed.

ESTABLISHING BREACH OF DUTY:

In order to establish that a breach of duty has occurred, one of the following must be
established:

1. Direct evidence of negligence

2. Violation of a statute
3. Res ipsa loquitur

a) Many times established by testimony from others actually witnessing the event.
b) Violation of a statute or negligence per se, exists when a law has been broken which
leads to an act of negligence.
c) Res ipsa loquitur is an operational term, which allows suit based on what "most
likely" occurred when direct evidence is unavailable (Wong, 1994).
d) For establishing negligence or deficiency in service there must be sufficient
evidence that a Doctor or a hospital has not taken reasonable care while treating the
patient.
e) Reasonable care in discharge of duties by the hospital and Doctors varies from case
to case and expertise expected on the subject which a Doctor of a hospital has
undertaken.

Courts would be slow in attributing negligence on the part of the Doctor if he has
performed his duties to the best of his ability with due care and caution within his
limitations and if the patient still do not survive or suffers a permanent ailment, it
would be difficult to hold the doctor to be guilty of negligence".

Same view is expressed in Achutrao Haribhau Khodwa and Ors. Vs. State of
Maharashtra & Ors. — (1996) 2 SCC 634, wherein the Court observed:

 "The skill of medical practitioners differs from doctor to doctor.

 The very nature of the profession is such that there may be more than one course of
treatment which may be advisable for treating a patient.
 Courts would indeed be slow in attributing negligence on the part of a doctor if he
has performed his duties to the best of his ability and with due care and caution.
SUMMARY AND CONCLUSION:
As per the settled law discussed above, deficiency in medical negligence is to be
judged on the following principles:

i. It is to be remembered that a Doctor or a Surgeon does not undertake that

he will positively cure a patient nor does he undertake to use the highest
possible degree of skill, as there may be persons more leamed and skilled
than himself, but he definitely undertakes to use a fair, reasonable and
competent degree of skill.
ii. It is to be stated that if there are several modes of treatment and if a Doctor
adopts one of them and conducts the same with due care and caution then
no negligence can be attributed towards him;
iii. Secondly, in the case of medical man, negligence means, failure to act in
accordance with the standards of reasonably competent medical men at the
time.
iv. A medical practitioner is expected to exercise a reasonable degree of care
and exercise skill and knowledge which he possess;
v. No doubt, failure to use due skill in diagnosis with the result that wrong
treatment is given is negligence;
vi. Medical opinion may differ with regard to diagnosis or treatment, but in a
complicated case if they occur and Court will be slow in attributing
negligence on the part of the Doctor if he has performed his duties to the
best of his ability and with due care and caution.
vii. the need for care and caution in the interest of society, for, the service
which the medical profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting doctors from
frivolous or unjust prosecutions.
viii. When it comes to the failure of taking precautions what has to be seen is
whether those precautions were taken which the ordinary experience of
men has found to be sufficient;
ix. A failure to use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for judging the
alleged negligence.
x. So also, the standard of care, while assessing the practice as adopted, is
judged in the light of knowledge available at the time of the incident, and
not at the date of trial.
xi. Similarly, when the charge of negligence arises out of failure to use some
particular equipment, the charge would fail if the equipment was not
generally available at that particular time (that is, the time of the incident) at
which it is suggested it should have been used.
xii. A professional may be held liable for negligence on one of the two findings:

xiii. Either he was not possessed of the requisite skill which he professed to have
possessed, or, he did not exercise, with reasonable competence in the given
case, the skill which he did possess.
xiv. The standard to be applied for judging, whether the person charged has
been negligent or not, would be that of an ordinary competent person
exercising ordinary skill in that profession.