Module 2

Medical Negligence
Medical Negligence

Can take various forms, including misdiagnosis or delayed diagnosis of a

medical condition, surgical errors, medication errors, failure to obtain
informed consent, improper treatment, lack of follow-up care, failure to
monitor a patient's condition, and other acts or omissions that fall below
the expected standard of care.

• All negative outcome cannot be attributed to negligence

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 Medical Negligence

• The key factor is whether the healthcare professional's actions or omissions were
negligent based on the accepted standard of care.

• It occurs when a healthcare provider deviates from the accepted norms and
standards of medical practice, leading to a breach of their duty of care towards
the patient

• Failure of a healthcare professional to provide an appropriate standard of care,

resulting in harm or injury to a patient.
(Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole 1969)

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 Medical Negligence – Ingredients
To establish a claim of medical negligence, certain elements must typically be proven, including (Jacob
Mathew v. State of Punjab, 2005)

Duty of care Breach of duty

The healthcare professional breached their duty
The healthcare professional owed a duty of care to
of care by failing to meet the expected ‘standard
the patient. This duty arises from the doctor-patient or
of care’. This means their actions or omissions
healthcare provider-patient relationship
deviated from what a reasonable healthcare
professional would have done in similar
circumstances
(Dr. Kunal Saha v. AMRI Hospital 2014).

Causation
Damages
The breach of duty directly caused or contributed
The patient suffered harm or injury as a result of
to the patient's harm or injury. It must be
the breach of duty. This can include physical
demonstrated that the patient's injury would not
pain, emotional distress, additional medical
have occurred if the healthcare professional had
expenses, loss of income, and other related
provided appropriate care
damages

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Medical Negligence – Burden of proof

• In the case of medical negligence, the burden of proof typically falls on the
patient or the plaintiff who alleges that they have suffered harm due to the
negligence of a medical practitioner.

• To establish a claim of medical negligence, the plaintiff generally needs to

demonstrate the above four important steps, not the physician.

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Medical Negligence – Standard of Care

Bolam’s test

• Case law is from United Kingdom

• The Bolam test is used in clinical negligence cases to determine whether a

doctor or other medical professional has breached their duty of care to a
patient

• Determining whether the doctor or medical professional acted in accordance

with a practice that was accepted as proper by a responsible body of medical
opinion at the time
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 Medical Negligence – Standard of Care

In other words, if a responsible

The Bolam test has been applied to a
body of medical professionals would
wide range of medical issues, This test has been accepted even in
support the doctor's actions or
including diagnosis, treatment, and the Apex court of India
treatment approach, then the doctor
information disclosure
is not considered negligent

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Medical Negligence – Standard of Care

Bolam’s test Criticism

• Very old practice of using expert opinion, not keeping with the pace of advancement of
medical scientific advancement and placing emphasis on the medical profession's expert
judgment

• The Bolam test has been accused of potentially that a doctor may not give an
opinion against another doctor to protect their profession

• Hence, Bolitho Test has been introduced in other countries and please be aware of
this also
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Medical Negligence – Case Law
• Supreme Court case of Kusum Sharma & Ors. Vs. Batra Hospital & Medical
Research Centre, (2010). While deciding whether the medical professional is guilty
of medical negligence following well known principles must be kept in view:

• The negligence to be established by the prosecution must be culpable or gross and

not the negligence merely based upon an error of judgment (Criminal Negligence)

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Medical Negligence – Case Law

A medical practitioner would be liable only where his conduct fell

below that of the standards of a reasonably competent practitioner in
his field

The medical professional is expected to bring a reasonable degree

of skill and knowledge and must exercise a reasonable degree of
care. 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

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Medical Negligence – Case Law
The medical professional is often called upon to adopt a
procedure which involves higher element of risk, but which he
honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher
chances of failure

Just because a professional looking to 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

Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre, (2010)

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Medical Negligence – Case Law
Negligence cannot be attributed to a doctor so long as he performs his duties
with reasonable skill and competence. Merely because the doctor chooses
one course of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the medical
profession

In the realm of diagnosis and treatment there is scope for genuine difference
of opinion and one professional doctor is clearly not negligent merely because
his conclusion differs from that of other professional doctor

The medical professionals are entitled to get protection so long as they

perform their duties with reasonable skill and competence and in the interest
of the patients. The interest and welfare of the patients have to be paramount
for the medical professionals

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 Medical
Medical Malpractice
Negligence

• Legal concept that arises from medical

• Clinical concept
negligence
• Refers to the failure of a • A healthcare professional's negligent
healthcare professional to
actions or omissions result in harm or
provide an appropriate
injury to a patient, and the patient seeks
standard of care, resulting in
legal recourse for the damages suffered
harm or injury to a patient
• Is a subset of medical negligence that
specifically involves the legal claim or
lawsuit brought by the patient against the
healthcare provider 13

June 28, 2024 Training of Experts by EMRB, NMC

Medical Misconduct
Medical Misconduct

Misconduct is defined as 'improper conduct’

Black’s Dictionary defines misconduct as 'a transgression of some established

and defined rule of action, a forbidden act, a dereliction of duty, unlawful
behaviour, wilful in character, improper or wrong behaviour’

Its synonyms are misdemeanour, impropriety, mismanagement, offence, but not

negligence or carelessness

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 Medical Misconduct
• Unethical or improper behaviour by healthcare professionals that deviates from the accepted
standards and norms of the medical profession
• It encompasses a wide range of actions or omissions that may harm patients or violate
their trust and the principles of medical ethics which includes:

Improper
Fraud or billing
Sexual misconduct prescribing or Substance abuse
abuse
medication errors

Unnecessary or
Impairment while
excessive medical Conflict of interest Fee splitting
on duty
procedures

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Medical Misconduct
Medical misconduct is taken seriously by regulatory bodies
and professional organizations. Disciplinary actions will be
as per the EMRB ethics regulations under NMC Act, 2019

EMRB can also file FIR depending on the severity of the

misconduct

The purpose of addressing medical misconduct is to protect

professional integrity, and uphold the ethical standards of
the medical profession

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Criminal Negligence
Criminal Negligence
The expression "rash or
negligent act" in Section
304-A IPC (BNS Sec 106)
has to be read as qualified
by the word "grossly”
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Circumstances around the Investigating agencies may
incident, behaviour of the seek help from State
medical practitioners, the Medical Council or from the
degree of deviation from medical expert/s to provide
the standard of care and expert opinion before
the hazard taken by the arresting the medical
accused doctor should be practitioner
of such a nature that the
injury which resulted was
most likely imminent
Training of Experts by EMRB, NMC 19
Criminal Negligence

Guidelines for investigating agencies:

• Supreme Court Judgement Jacob Mathew v. State of Punjab (2005)
• A private complaint may not be entertained unless the complainant has
produced prima facie evidence before the court as a credible opinion given by
another competent doctor to support the charge of rashness or negligence by the
accused doctor
• The investigating officer should, before proceeding against the doctor accused of
rash or negligent act or omission, get an independent and competent medical
opinion preferably from a doctor in government service, qualified in that branch
of medical practice who can normally be expected to give an unbiased opinion
applying the Bolam test to the facts collected in the investigation
Thank You