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Medical Negligence

  • Meaning of Professional negligence
    • Professional negligence is a breach of the duty of care between professionals and their clients. The duty of care is a common law arrangement where the client expects a level of professionalism and standards commonly held by those in the profession.
    • The three ingredients of negligence are as follows:
      • The defendant owes a duty of care to the patient.
      • The defendant has breached this duty of care.
      • The patient has suffered an injury due to this breach.
  • Components of negligence
    • Duty Owned
    • Arise of duty
    • When there is no liability
    • Types of negligence
    • Vicarious / strict liability
    • DUTY OWNED
      • What is the duty owed?
      • The duty owed by a doctor towards his patient, in the words of the Supreme Courtis to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care” (Laxman vs. Trimback). The doctor, in other words, does not have to adhere to the highest or sink to the lowest degree of care and competence in the light of the circumstance. A doctor, therefore, does not have to ensure that every patient who comes to him is cured. He has to only ensure that he confers a reasonable degree of care and competence
    • ARISE OF DUTY
      • When does a duty arise?
      • It is well known that a doctor owes a duty of care to his patient. This duty can either be contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-patient relationship is not established, the courts have imposed a duty upon the doctor. In the words of the Supreme Court
      • Reasonable Degree of Care
      • Reasonable degree of care 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.” At this stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation.
    • Arise of Liability
      • When does the liability arise?
      • The liability of a doctor arises not when the patient has suffered any injury, but 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 patient 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. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.
      • Situation when there is no Liability
      • When there is no liability a doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of judgment due to negligence.
  • When there is no liability
    • When there is no liability
    • A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of judgment due to negligence.
  • Types of negligence
    • Active Negligence: This kind of negligence happens actually due to lack of proper training and knowledge so this type of action from origin is wrong like giving injection in wrong site.
    • Passive Negligence: Here we can say that this type of negligence occur because there is no action or omission of an act. Like if a doctor gives injection without knowing the history of allergy.
    • Contributory Negligence (Collateral Negligence): This type of negligence is slightly in favour of the doctors because it is this type of negligence in which the patient has not paid much attention to doctor’s advice and has failed to follow his advice and thus due to that the injury has incurred to him and so here there is a contribution of patient in his injury and thus this type of negligence is said to be Contributory Negligence.
    • Concurrent Negligence: This type of negligence can be applied to more than one act or omission like some mistake of giving wrong injection to a patient can be done by a single doctor and same can be done by two doctors together.
    • Continued Negligence: This is from my viewpoint the worst negligence because in this type of negligence the doctors leave their patients intentionally or else abandon them as they know they have done a negligent act and omission.
    • Gross Negligence: This type of negligence is conspicuously wrong because in this type of negligence doctors tend to leave a foreign body.
    • Hazardous Negligence: This type of negligence is mainly done by that doctors who do not have much knowledge of their equipments and doesn’t know it and thus it will come to a time when they use unsterile instruments which later goes to harm the patient.
    • Willful Negligence: This is a type of negligence in which the doctors intentionally or deliberately do such things that lead to harm the patient.
    • Reckless Negligence: This type of negligence is actually done by the doctors who are habituated of taking high risks in their operation and thus sometimes in this way they themselves do the reckless thing in the operation that leads to the harm to the patient.
    • Negligence Per Se: This type of negligence in actual is the violation of any codified rule and statue and thus this type of negligence shows that doctor didn’t worry about the rule breaking and they were negligent in their work.
  • VICARIOUS / STRICT LIABILITY
    • Hospitals in India may be held liable for their services individually or vicariously. They can be charged with negligence and sued either in criminal/ civil courts or Consumer Courts
    • The court held that the management of the hospital would be liable in case of administrative negligence and failure to provide basic infrastructure to patients.
    • Hospitals liability with respect to medical negligence can be direct liability or vicarious liability.
    • Direct liability refers to the deficiency of the hospital itself in providing safe and suitable environment for treatment as promised. e.g. Failure to maintain equipments in proper working condition constitutes negligence. In case of damage occurring to a patient due to absence/ non-working equipment e.g. oxygen cylinder, suction machine, insulator, ventilator etc. the hospital can be held liable.
    • Vicarious liability means the liability of an employer for the negligent act of its employees. An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment e.g. Improper maintenance of cleanliness and/or unhygienic condition of hospital premises amounts to negligence.
    • Strict liability Strict Liability doctrine can be define as the acts or omissions which are held liable without the mens rea (mental intent). It is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability including the fault in criminal law. In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortuous intent). The claimant need only prove that the tort occurred and that the defendant was responsible.
    • In criminal law, strict liability is liability for which mens rea (Latin for “guilty mind”) does not have to be proven in relation to one or more elements comprising the actus reus (Latin for “guilty act”) although intention, recklessness or knowledge may be required in relation to other elements of the offence. The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal.
    • Strict liability deals with such situations where a careful person is held liable for an entirely reasonable mistake.
    • A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger of which the manufacturer either is aware or should be aware, and that would not be readily recognized by the ordinary user.
    • A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which may follow the foreseeable use of the product, and which are known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution.
    • In the case of prescription drugs, such warning must be given to the physician.