MEDICAL NEGLIGENCE

Negligence:-

Negligence as a tort is an actionable wrong which consists in the neglect of use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill and because of that neglect the plaintiff has suffered injury to his person or property.

The word Negligence is derived from the Latin term “negligentia”, which means ‘failing to pick up’. In legal term negligence means, failure to perform the basic of care which the performer as a reasonable man of ordinary prudence should have performed in all situation.

Winfield defines negligence as the breach of a legal duty to take care, which results in damage, undesired by the defendant to the plaintiff.

In Blyth vs Birmingham Waterworks[i], negligence is defined as an omission to do something which reasonable man under those circumstances would do or not doing that which a prudent and reasonable man would not do.

Medical Negligence:-

Medical Negligence basically refers to the misconduct done by a medical practitioner or doctor by not taking reasonable care which he was bound to do and which resulted in breach of their duties and cause harm to their patients. Generally, a patient expects that he will be healed after getting treatment from the doctor and as they are professional in their field then they are bound to take reasonable care while performing their duty. Negligence on the part of medical practitioners may cause death as well as adverse result on a patient’s health. Examples of medical negligence include improper administration of medicines, doing inappropriate surgery, giving improper medical advice.

In Jacob Mathew v. State of Punjab[ii], SC explained that a professional entering into certain profession is deemed to have knowledge regarding that profession and it is assured impliedly by him that a reasonable amount of care shall be taken to profess his profession. The person can be held liable under negligence if he did not possess the required skills to profess or he failed to take essential amount of care to profess the said profession.

Medical negligence does not always result in injury to the patient. And when it causes injury to the patient it turns into medical malpractice.

Essentials of Medical Negligence

In order to claim damages for negligence the plaintiff need to prove following elements:

• 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 of that breach

In Kusum Sharma v. Batra Hospital[iii], the Supreme Court held that if a doctor honestly believes that by taking higher risk, he would be able to cure the suffering of the patient and has taken a higher risk to redeem the patient out of his/her suffering and it did not yield the desired result, this may not amount to medical negligence.

In Jasbir Kaur v. State of Punjab[iv], the court held the hospital authorities for negligence. In this case a newly born baby was missing from the hospital and found bleeding near a wash-basin. The court held that the hospital authorities were negligent and had not taken due care and precaution. The compensation of Rs. 1 lakh was given to the victim.

Custom Test

It is one of the important tests to determine medical negligence. the following points need to be proved:

• It must be proved that the hospital and its staff were negligent in performing their duties and they haven’t taken reasonable care.
• It must be proved that the method that was adopted by the medical practitioner was not ethical.
• Generally, the burden of proof lies on the complainant but in some cases it shifts to the defendant.

Kamli Devi vs State of Himachal Pradesh[v], in this case the plaintiff gave birth to a child despite sterilization operation. She was clearly told that even after the operation there are 2-3% chances of getting pregnant. The respondent admitted that he had performed the operation of the plaintiff in a family planning camp in village Katindi on 31^st Jan, 1987. But she failed to take post-operative care and even she took no steps to terminate the unwanted pregnancy thus she is not entitled to any relief. The court held that compensation for maintenance and upbringing of child cannot be claimed from the doctor.

 Dr. M.K. Gaudakutty vs M.K. Raghavan, in this case due to the negligence of the doctor in laproscopic operation, the plaintiff remained in coma for over 30 years and was leading a lifeledd life. The court held the State Government, the operating doctor and the anaesthetician jointly and severally liable for breach of duty towards the patient and awarded compensation of Rs. 3,80,944/- to the suffering woman.

In Shanta vs State of Andhra Pradesh, the petitioner was admitted in a Government Hospital for caesarean operation and due to the negligence of the doctor the plaintiff suffered injuries and had to undergo two major operations in subsequent months. Though the doctors refused to accept their negligence but a small piece of cotton left inside the abdomen of the lady was a sufficient proof to held the doctors liable for negligence, hence both the state as well as the doctor were held liable for the negligence.

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[i] (1856) 11 Ex 781 (784)

[ii] A.I.R. 2005 S.C. 3180

[iii] 2010

[iv] 1995 ACJ 1048

[v] AIR 2010 HP 69