Dr. C. M. Francis MBBS, Ph. D
Negligence is a careless act and may result in harm. A person is said to be negligent when he/she acts without care in regard to the possible harmful consequence of his/her action. “Negligence is the omission to do something which a reasonable man, guided upon these considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” (Salmond, Law of Torts, 19th edition)
Halsbury’s Laws of England (4th edition) gives the general principles of negligence: “Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand… it may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.”
Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonable foreseen to be likely to cause personal injury to persons or property.”
Lord Wright said:
In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.” Medical negligence occurs when there is want of reasonable degree of care and skill on the part of a member of the medical profession (or hospital or other health care institution) leading to harm. When a member of the medical profession (or a hospital or other health care institution) falls short of the standard of ordinary skilled person and the patient suffers harm, the patient (or the heirs) has a right of action for damages.
Manusmriti says:
‘’All physician who treat their patients wrongly shall be liable to pay fine.” (Sacred Books of the East, Vol.2.5)
BrihaspathiShruti has the following:
“A physician who, though unacquainted with drugs and their effects or is ignorant of the nature of diseases, yet takes money from the sick (for giving treatment), shall be punished like a thief.”
(Sacred Books of the East, Vol. 15)
What are the duties of the doctor?
Law imposes a duty of care upon every individual to take reasonable care for the protection of others. This is so in the relation of doctors to their patients. When consulted by a person, the doctor owes the person a duty of care in deciding
The duty of a medical practitioner arises from the fact that, unless it is done with proper care and skill, it can cause physical harm. There is no warranty of success when treatment is given. A practitioner is held liable, i.e. his/her diagnosis/treatment is so palpably wrong as to prove negligence (AIR 1975 Bombay 306)
What is the degree of care required by a doctor?
It is the law that a practitioner must bring to his/her task a reasonable degree of care. The standard required will be that of an average practitioner of the class to which he/she belongs or holds to belong. In the case of a specialist, a higher standard is expected.
“Law imposes a duty on everyone to conform to certain standards of conduct for the protection of others. Persons who undertake work requiring special skill must not only exercise reasonable care but measure up to the standard of proficiency that can
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, namely, a duty of care in deciding what treatment to give or duty of care in the administration of that treatment.
be expected from persons of such profession. Failure to conform to the required standard of care resulting the material injury is actionable negligence, if there is proximate connection between the defendant’s conduct and the resultant injury. A surgeon or anesthetist will be judged by the standard of an average practitioner of the class to which he/she belongs or holds himself/herself out to belong. In the case of specialists, a higher degree of skill is called for.”
The law does not exact of the members of the medical profession utmost degree of care and skill attainable or known to the profession but they should possess and exercise reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. However, the law does not recognize that medicine is a progressive science; therefore, in determining the degree of care and skills, regard will be had to the state of advancement of the profession at the time and place of treatment.
Mc Nair. J, in Bolam vs. Friern Hospital committee (AIIE. R. 118, 1957 (2) enunciated the law: “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 pigheadedly carry on with some old technique if has been proved to be contrary to what is really substantially the whole of the informed medical option.”
Liability
Liability arises when there is a breach of duty resulting in injury. Three factors have to be proved to establish liability by a doctor, where there is alleged deviation from normal practice:
Negligence would not be inferred merely because there was body of opinion which took another view. There may be more than one perfectly proper standard; if the medical professional conforms with one of those standards, then he/she is not negligent.
Vicarious liability
Ordinarily, the person who is negligent is held responsible. But the employer (hospital or other health care institution) may be responsible for the negligence of the employee. The responsibility of hospital authorities includes the obligation to treat; they are liable, if the persons employed by them to perform the obligation on their behalf act without due care.
Negligence of other health cares
Ordinarily, we think of the medical professional but other health care professionals and workers may be negligent and the hospitals become liable. The most important among them are the nurses. A nurse may be negligent in
[If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself/herself out as having, and acting with ordinary care, then it is negligence. If on the other hand, it is an error that such a person, acting with ordinary care, might have made, then it is not negligence.]
Instruments are not left in the body of the patient rests with the surgeon.
“As it is the task of the surgeon to put swabs in, so it is the surgeon’s task to take them out.”
Error of judgment
Sometimes a plea is made that the injury was caused as a result of an error of judgment and not due to negligence. An error of judgment may or may not be negligent.
“The true position is that an error of judgment may or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself/herself out as having, and acting with ordinary care, then it is negligence. If on the other hand, it is an error that such a person, acting with ordinary care, might have made, then it is not negligence.’’
(Lord Fraser, 1981, I All ER 267, quoted by Hon ‘ble S. Sabir Ahmed & G B Pattanaik, JJ, AIR 1998 Se 1801)
Misadventure
Occasionally, injury may be caused to the patient by an unintentional or accidental act, even after taking all due precautions and care. It is an inevitable hazard of medical practice; there is no negligence, if due care has been exercised and there is no breach of duty.
Onus of proof
The onus of proof of negligence rests squarely on the plaintiff. Justice Chagla and Baghawati of the Bombay high court stated: “The law on the subject is really not in dispute. The plaintiff has to establish that there had been a want of competent care and skill on the part of the defendant to such an extent as to lead to a bad result. The plaintiff
Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case is what the law requires and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
… Whenever they (local authorities, governing boards or any other corporation) accept a patient for treatment, they must have reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course do it by themselves; they have no ears to listen through the stethoscope and no hands to hold the surgeon’s knife. They must do it by the staff which they employ and if their staff are negligent in giving treatment they are just as liable for their negligence as is anyone else who employs others to do his duties for him… it is no answer for them to say that their staff are professional men and women who do not tolerate any interference by their lay masters in the way they do their work… because they employ the staff and have chosen them for the task and have in their hands the ultimate sanction for good conduct, the power of dismissal.
has also to establish the necessary connection between the negligence leading to harm in all common situations, there can be circumstance in which the defendant will have to establish that there was no breach of duty.
Legal remedy
Recourse may be had by the person affected in various ways. It depends on the type of liability of the law under which claim is made.
Criminal liability: Section 304A, IPC, provides for punishment for grossly rash or grossly negligent act, which is proximate, direct or substantive cause of patients death. Sections 337 and 338 also provide for punishment for rash or negligent act endangering human life or the personal safety of others.
Law of Torts: This is a judge-made law and it comes into effect whether the patient pays or not.
Consumer Protection Act 1986: This is a comprehensive piece of legislation and provides for quicker remedy and without incurring large expenses as court fee etc.
Damages: If the negligence cause harm to the patient, then the patient (or his/her heirs) is the entitled to compensation or damages. The damages may be for
Special damage include
General damages include payment for
The general damages will be decided by the court.
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