A breach of any of the aforesaid duties gives a right of action for negligence to the patient. A breach of duty is committed by a doctor when he does not perform the standard and degree of care like a reasonable doctor of his time or as a member of his class. A few cases on this point are as follows:
In Kusum Sharma v. Batra Hospital , the Supreme Court held that a doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes in providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure and just because a doctor, in view of the gravity of illness, has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
In Jasbir Kaur v. State of Punjab , a newly born child was found missing in the night from the bed. The child was found profusely bleeding and with one eye totally gouged near the wash-basin of the bathroom. The plaintiff contended replacement of the child whereas the hospital authorities contended that the child had been taken away by a cat which caused the damage to him. The court presumed that the hospital authorities were negligent and awarded compensation amounting Rs. 1 lakh.
According to Winfield, in an action for negligence, the plaintiff has to prove the following essentials,
- That the defendant owed a duty of care to the plaintiff.
- The defendant made a breach of that duty.
- The plaintiff suffered damage as a consequence thereof.
Duty of Care to the Plaintiff
The requirements for establishing a duty of care are as follows,
- Duty means a legal duty.
- Foreseeability of injury.
- No foreseeability, no liability of the defendant.
- Proximity in a relationship, which implies that the parties are so related that it is just and reasonable that the duty should exist.
- Duty must be towards the plaintiff.
- Policy considerations do not negate the existence of a duty.
It should be a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. No general rule defining such duty is in existence. It is a question of fact which depends on each case. You can talk to a good medical negligence lawyer in India to know more.
Foreseeability of injury
Reasonable foreseeability of the injury to the plaintiff decides that whether the defendant owes a duty to the plaintiff or not. If at the time of act or omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable.
To decide culpability, one has to determine what a reasonable man would have foreseen and the useful test is to enquire how obvious the risk must have been to an ordinarily prudent man. The reasonable man is presumed to be free from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. The best medical negligence lawyer in India can be consulted to file a complaint against a hospital, doctor or medical practitioner.
It is the judge who decides what in the circumstances of the particular case, the reasonable man would have done in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen. No foreseeability, no liability of the defendant, when the injury to the plaintiff is not foreseeable, then the defendant is not liable.
Proximity in the relationship, which implies that the parties are so related that it is just and reasonable that the duty should exist, To establish negligence it is enough to prove that the injury was foreseeable, but a reasonable likelihood of the injury has also to be shown. Reasonable foreseeability does not mean remote possibility. There must be proximity in relationship. The test of proximity may be described as foreseeability of a reasonable man. The relationship between the parties must have been such that in justice and fairness the defendant like a reasonable man ought to have kept the plaintiff in contemplation while doing the acts of which complaint is made.
The duty of the defendant is to guard the plaintiff against reasonable probabilities rather than bare or fantastic possibilities. If the possibility which could never occur to the mind of the reasonable man, then there is no negligence in not having taken extraordinary precaution.
Duty must be towards the plaintiff
It is essential to prove that the defendant owes a duty of care to the plaintiff otherwise the plaintiff cannot sue the defendant even if he might have been injured by the defendant's act. Top medical negligence advocates in India can be hired to file a medical negligence case.
Policy considerations are material in limiting the persons who can claim that a duty of care not to cause economic loss was owed to them by a person committing a wrong.
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
Civil liability usually includes the claim for damages suffered in the form of compensation. If there is any breach of the duty of care while operating or while the patient is under the supervision of the hospital or the medical professional 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 Rs. 1 Lac was awarded against the hospital.
There may be an occasion when the patient has died after the treatment and criminal case is filed 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 fine, or both. Hospitals can be charged with negligence for transmission of infection including HIV, HBsAg, etc.
If any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital then the hospital can be held liable for lack of reasonable duty to care. My very own grandmother passed away due to the negligence of the doctors. Due to the carelessness of the doctor that he was in so hurry to rush for the next operation that he forgot to sterilize the equipment and as a result, there was this transmission of some infection into her blood which infected her entire system and ultimately resulted in her death.
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