NEGLIGENCE

   

Prof. JARAM SINGH

H.O.D. AGADA TANTRA
RG Govt. PG Ay. C & H Paprola, Kangra (H.P.)
Email; drjaramsingh@gmail.com
Professional negligence (Malpraxis)

Medical negligence is defined as want of reasonable

degree of care and skill or willful negligence on the part
of Medical Practitioner while treating a patient resulting
in bodily injury, ill health or death.
Act of Omission – not doing something that a
reasonable man, under the circumstances would do.
Act of commission – doing something which a
reasonable prudent man under the circumstances would
not do. Unjustifiably deviates from accepted practices.
 Medical negligence
Medical negligence requires that the plaintiff (Claimant)
establishes the following (4 Ds)
Duty – existence of physician’s duty of care to the plaintiff.
Dereliction – a breach in the duty caused by the defendant’s
negligent act or omission.
Direct causation – The failure to exercise a duty of care must
lead to damage. A direct link between the defendant’s
negligent act or omission and an injury suffered by the
plaintiff.
Damage – must be reasonably foreseeable, i.e. pain and
suffering, disability and disfigurement, past and future
medical bills, wrongful death, etc.
 Civil Negligence

a) When a patient, or in case of his death any

relative brings suit in a civil court for realization
of compensation from his doctor, if he has
suffered injury due to negligence.

b) When doctor brings a civil suit for the

realization of his fees from patient or his
relatives, who refuse to pay the same, alleging
professional negligence.
 Civil Negligence involves
• Such act on the part of treating physician which
caused some suffering, harm or damage to the
patient
• Damage is such which can be compensated by
paying money
• Does not come under the purview of CrPC and IPC
• Does not demand legal punishment
 Flow chart showing civil negligence

Doctor-Patient relationship existed

Doctor duty bound to treat patient

Dereliction of duty by Doctor

Patient suffer damage

Damage should be compensated in terms of money

 Criminal Negligence
• More serious than civil negligence
• Practically limited to cases in which the patient has died
• Mostly associated with drunkenness or impaired
efficiency due to the use of drugs by doctors
• Doctor shows gross incompetency and inattention in the
selection and application of remedies, undue interference
by him or criminal indifference to the patients safety
 Punishment in Criminal negligence
• Sec. 304 A IPC ; whoever caused the death of any
person by doing any rash or negligent act not
amounting to culpable homicide is punished with
imprisonment up to 2 years and with/without fine.
• Sec. 337 IPC ; causing hurt by rash or negligent act
to endanger life for which punishment is
imprisonment up to 6 months and/or fine.
• Sec. 338 IPC ; causing grievous hurt by rash or
negligent act to endanger life for which punishment
is imprisonment up to 2 years and/or fine.
Doctrine of ‘RES IPSA LOQUITOR’
• Generally professional negligence of a doctor must be
proved in the court of law by expert evidence of
another physician.
• The patient need not prove negligence in case where
the rule of res ispa loquitor applies, which means ‘the
thing or fact speaks for itself’.
• Applies to both civil and criminal negligence
• Error is so self evident that the patient’s lawyer need
not prove the doctor’s guilt with medical evidence.
The doctor has to prove his innocence.
 Cont.
Rule of res ipsa loquitor is applied when the following
three conditions satisfied;
i) in the absence of negligence, the injury would not have
occurred, i.e. its occurrence ordinarily be speaks
negligence.

ii) Doctor had exclusive control over the injury producing

instrument/treatment.

iii) Patient was not guilty of contributory negligence, i.e.

injury was not the result of his own voluntary act or
neglect.
 Examples
• Blood transfusion misadventure,
• Failure to give TT vaccine in case of injury,
• Prescribing overdose of medicine producing ill effects,
• Wrong site surgery or wrong procedure,
• Leaving surgical instrument/ swabs/ linens in the
abdomen causing complication/death,
• Loss of use of hand due to prolonged splinting
 Contributory Negligence
Any unreasonable conduct, or absence of ordinary care on
part of the patient or his attendant, which combines with
doctors negligence contributed to the injury complained of,
as a direct cause and without which the injury would not
have occurred.
• Good defence for the doctor in civil cases, but not in
criminal cases.
• Doctor has to prove patient’s negligence
• For example patient did not give proper history, failure to
follow doctor’s instructions regarding drugs, tests and diet.
• Damage awarded by court may be reduced.
 Corporate Negligence

• It is the failure of those in hospital

administration/ management who are
responsible for providing the treatment,
accommodation and facilities necessary to
carry out the purpose of the institution, to
follow the established standard of conduct.
 Corporate Negligence occur;
When the hospital -
• provides defective equipment or drugs,
• Selects or retains incompetent employee
including doctors.
• Fails in some other manner to meet the accepted
standard of care, and such failure results in injury
to a patient to whom the hospital owes a duty.
 Therapeutic misadventures/ hazard
It is a case in which a patient has been injured
(results in measurable disability, prolonged
hospitalization or both) or had died due to some
unintentional /inadvertent /unintended act of doctor or
his agent or hospital.
• The injury or an adverse event is caused by medical
management rather than by an underlying disease.
• It includes medication errors, medical and surgical
errors, surgical complications, iatrogenic infections,
or postoperative complications.
 Such mishap does not provide ground for
negligence, for e.g.
a) Hypersensitivity reactions caused by penicillin,
tetracycline or aspirin etc.
b) Radiological procedures for diagnostic purposes,
e.g. poisoning by barium enema, traumatic
rupture of rectum or chemical peritonitis during
barium enema.
c) Thyroid cancer with Iodine therapy.
d) Fatal complications from hemolytic reactions
with blood transfusion.
Vicarious liability/ Respondeat superior
An employer is responsible not only for his own
negligent act, but also for the negligent act of his
employee by the principle of ‘Respondeat superior’
(Latin, ‘let the master answer’), if three conditions are
satisfied;
i) There must be an employer-employee relationship
ii) The employee’s conduct must occur within the
scope of his employment
iii) Incident must occur while on the job.
 Examples
• In medical practice, usually, the principal doctor
becomes responsible for any negligence of his
assistants (both medical and para-medical). Both
may be sued by the patient, even though the
principal has no part in the negligent act.
• When two doctors practice as partners, each is liable
for the negligence of the other, even though one may
have no part in the negligent act.
• A hospital, as an employer is responsible for
negligence of its employees who are acting under its
supervision and control.
Baijnath Temple

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