Elements of Negligence
After examining numerous decisions and definitions, Charlesworth suggested the following essential components of negligence
- The existence of a duty to take care
- The failure to achieve that standard of care mandated by law, which constitutes a breach of the duty to take care.
- The damage or injury suffered by the plaintiff which is causally connected to the breach of duty to take care.
Medical negligence is a tortious liability which violates rights in rem ( rights vested in some person and available to the world). In Tort, the plaintiff Sues the defendant for unliquidated damages. In order to succeed in a case of medical negligence, the plaintiff must prove the aforementioned three essential components of negligence.
Duty of care
Duty of care arises as and when the practitioner accepts or undertakes to treat a patient. This relation does not have to be contractual but arises when doctor-patient relationship is established. In , the court said: “If he accepts the responsibility and undertakes the treatment and the patient submits to his discretion and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skills, and caution in administering the treatment”.
Breach of Duty of Care
For any action of medical negligence, it must be proved by the plaintiff that the doctor did not discharge his duty to take care. Breach of duty to take care can be defined as omitting to do something which a reasonable man would do or be doing something, he would not do. In other words, to be brief, it can be said that the failure to discharge the duties arising out of a doctor-patient relationship makes the doctor liable. Top medical negligence advocates in India can tell you more about medical negligence in India.
The plaintiff must have suffered injury due to a breach of duty of care by the practitioner. The injury must have been the result of a negligent act of the medical professional. Once it is established that the negligence of the defendant led to the injury of the plaintiff, the court measures the loss in monetary terms and awards it to the plaintiff.
Degree of care
In Tort, the standard of care required of a practitioner is of an ordinary competent medical practitioner. so long as a doctor acted in accordance with general and approved practice acceptable to the medical profession of that day, the liability of negligence does not arise.
The injury caused by the breach of the duty of care should be foreseeable by a doctor. The foreseeability of injury on the part of practitioner does not suggest extraordinary foresight. A practitioner, therefore, cannot be held liable for an injury which is beyond the realm of foresight of a reasonable man. The reasonableness of foresight, however, is to be determined according to approved practice and medical knowledge of that time. The duty of care and the criteria of reasonable foresight has been explained in “one must take reasonable care to avoid acts or omissions, which he can reasonably foresee would likely to injure his neighbour.”
Proximity to Injury
The injury suffered by the patient must be the result of wrongful act or omission involving a breach of duty to take care. In other words, the proximal cause of injury must be a breach of duty to take care by the practitioner. A doctor cannot be held liable for an injury which is too remote. You can hire a good medical negligence lawyer in India to file a medical negligence case against a medical practioner.
Burden of proof
Any act of medical negligence has to be proved and can not be presumed. In a medical negligence case, it is for the patient to prove his case against the medical professional that he acted negligently. The law does not require a medical professional to prove that he acted with sufficient care and skills.
Medical negligence as Criminal offence
There may be an occasion when medical negligence leads to the death of the patient. of the Indian Penal Code of 1860 states that whoever causes the death of any person by rash or negligent act not amounting to culpable homicide shall be punished by imprisonment up to two years, or by fine or both. Section of IPC provides that it is an offence to endanger human life and personal safety of others through a rash or negligent act.
It provides for a punishment of up to 3 months or fine of Rs 250 or both. Similarly, section and of the Penal Code Deal with causing hurt and grievous hurt respectively and endangering life or personal safety of others. The punishment for section 337 is up to six months imprisonment or fine of Rs 250. Punishment for section 338 is imprisonment of up to two years or fine of Rs 1000. Under criminal law, the injured person who is a victim of medical malpractice get nothing in monetary support, but the wrongdoer is penalized by the state.
However, under the code of criminal procedure, the court has the power to make orders to pay compensation to the victim out of the penalty imposed on the accused. Section of the CrPc reads as - (357.1) “when a court imposes a sentence of fine or a sentence of which fine forms the part, the court may, when passing the judgment, order the recovery to be applied”. Further, section 357.3 reads as - “when a court imposes a sentence, of which fine does not form a part, the court may, when passing a judgment, order the accused to pay by way of compensation, such amount as may be specified in the order.”
Section 80 and of Indian penal code contains defences for a medical professional accused of criminal liability. Section provides that “nothing is an offence that is done by accident or misfortune and without criminal intention or knowledge in doing of a lawful act in a lawful manner by lawful means and with proper care and caution”. Section 88 provides that doctor cannot be accused of an offence if he/she performs an act in good faith, for the patient's benefit, does not intend to cause harm even if there is a risk and the patient has consented to suffer that harm. This section exonerates doctors and surgeons who make tough decisions in an emergency.
In , the apex court pointed out that to prosecute a practitioner criminally for medical negligence the amount and degree of negligence is the factor determining liability. The circumstances under which a practitioner can be criminally prosecuted is explicitly mentioned in , the apex court, in this case, held that “ to prosecute a medical professional for negligence under criminal law, it must be shown that the hazard taken by the accused is of a such a nature that the result was most likely imminent.”
In , the apex court held that only when negligence was so gross as to endanger the life of the patient, criminal liability of the practitioner arises.
Medical negligence under consumer protection Act 1986
The consumer protection act was enacted in 1986 to provide a simpler and quicker access to redress consumer grievances. However, the conduct of medical malpractice was brought under the ambit of consumer protection act 1986, by landmark case of . The judgment brought medical care under the purview of ‘services’ (sec 2.1) and anyone seeking such care may be considered a consumer (sec 2 d). The judgment, however, excludes from the purview of services, medical care for which no fee is charged. The apex court held that services rendered free of charge or on payment of a token amount for registration would not be 'service' as defined in the act. Thus, medical care service provided at a non-governmental hospital or government hospitals where no charge was paid or only nominal charge was paid, would be outside the ambit of service.
Where can a complaint be filed?
A complaint, which is a written allegation of medical malpractice can be filed in
1) The district forum if the value of services or the compensation claimed is less than 20 lakhs rupees,
2) Before the state commission, If the value of services and the compensation claimed does not exceed more than 1 crore, or
3) In the national commission if the value is more than 1 crore.
Medical negligence and contractual liability
There is seldom any formal agreement made between a practitioner and a patient. However, the obligation of a doctor arises from an implied or express contract which is constituted when a practitioner agrees to provide medical care for consideration. The patient consents to be placed under the care of a doctor and the latter agrees to take care of the patient in a prudent manner. A suit for recovery of damage can be brought if the practitioner has been careless, inadvertent or careless in the discharge of his duty.
When a practitioner specifically promises to cure or advertises about guarantee of cure and subsequently fails, the plaintiff may base his claim on the breach of contract.
Thus we find that earlier there was very little codified law relating to medical negligence and therefore the fate of law of medical negligence was dependent on case laws. With the coming of consumer protection act 1986 and the subsequent incorporation of medical care as 'service’, infused new life to medical negligence litigations. While, in India, anyone aggrieved by medical malpractice can exercise various options. However, civil suits require payment of court fee and can be prohibitive. Criminal complaints too are rare because of statutory safeguards. Therefore, the forum of choice, for anyone aggrieved of medical negligence is consumer forum.
In , the plaintiff failed to produce any doctors as experts. While the doctor produced two other doctors to support him. A parliament standing committee report on medical negligence was submitted in Rajya
Sabha in 2013. It was noted in the report that “doctors were very lenient towards colleagues guilty of negligence” and that there is an unwillingness among them to “testify another doctor as negligent”.
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