MEDICAL NEGLIGENCE

Medical Negligence

“Medical Negligence”, as the words itself is self explanatory which means misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. Whereas, negligence can be an act or omission recklessly done by a person resulting in foreseeable damages to the other. Negligence is an offense under both codified and uncodified law like tort, IPC, Indian Contracts Act, Consumer Protection Act and many more. A professional is deemed to be an expert in that field and expected to be careful while performing his duties. Medical negligence has caused many deaths as well as adverse results to the patient’s health.

The adjudicating process in regard to medical negligence liability can be in a consumer forum or a regular civil or criminal court, considering common law principles relating to negligence, vitiated consent, and breach of confidentiality.

Negligence is the failure to exercise due care. The three ingredients of negligence are as follows:

  1. The defendant owes a duty of care to the plaintiff.
  2. The defendant has breached this duty of care.
  3. The plaintiff has suffered an injury due to this breach.

Medical negligence is no different. It is only that in a medical negligence case, most often, the doctor is the defendant.

It is well known that a doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life”.

Reasonable degree of care and skill means that the degree of care and competence that an “ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question.” One should not be confused between the standard of care and the degree of care.

The standard of care is constant and remains the same in all the cases. Whereas, the degree of care is a variable factor and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation.

The degree of care would be different in the case of a generalist and a specialist. In other words, both are expected to take reasonable care but what amounts to reasonable care with regard to the specialist differs from what amount of reasonable care is standard for the generalist.

Doctors are imposed with a duty to take the consent of a person/patient before performing acts like surgical operations and in some cases treatment as well. Any act that requires contact with the patient has to be consented by the patient. There is a duty of a doctor to disclose all information can be relevant for the patient to make a decision.

Now the liability of a doctor (i.e., Medical Negligence) arises when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable.

It is the duty of the plaintiff to show the cause of action and all possible reasons for the injury in regard to causation and that the breach of duty of the doctor was the most probable cause. Showing the breach of duty as merely one of the probable causes is not sufficient. Hence, if the possible causes of an injury are the negligence of a third party, an accident, or a breach of duty care of the doctor, then it must be established that the breach of duty of care of the doctor was the most probable cause of the injury to discharge the burden of proof on the plaintiff.

Normally, the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come into play.

The following are the necessary conditions of this principle.

  1. Complete control rests with the doctor.
  2. It is the general experience of mankind that the accident in question does not happen without negligence.This principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without negligence. In the absence of any such explanation, liability of the doctor arises.

Normally, a doctor is held liable for only his acts (other than cases of vicarious liability). However, in some cases, a doctor can be held liable for the acts of another person which injures the patient. The need for such a liability may arise when the person committing the act may not owe a duty of care at all to the patient or that in committing the act he has not breached any duty. A typical example of a case where such a situation may arise is in the case of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be liable even if he actually commits the act which causes the injury. In such a case, it is the duty of the senior doctor to have advised him properly. If he did not do so, then he would be the one responsible for the injury caused to the patient, though he did not commit the act.