MEDICAL NEGLIGENCE

AND
MEDICAL MALPRACTICE:
DANGER TO HUMANKIND
Sumita Shibanee Sahu
BBA LLB 9
03719103517
MEDICAL NEGLIGENCE

 Medical Negligence is an act of negligence which occurs when doctors fail to take reasonable
duty of care causing injury to their patients.
 In other words, it means a doctor’s breach of duty to take care of his patients because of
which the patients suffered an injury.
 These are the following ways by where doctors act negligently:
1. Failure to attend or treat patients,
2. Make error in diagnosis,
3. Make error in treatments,
4. Failure to take full medical history into consideration,
5. Performing wrong surgery,
6. Failure to communicate and advice etc.
MEDICAL MALPRACTICE
 It is an intentional negligence committed by a medical professional like doctor, nurse, technician,
hospital worker, etc. It is an intentional breach of duty of care by medical professionals. Unlike
medical negligence, it has the element of ‘intent’.
 If a doctor is performing an activity over the patient, knowing that this could cause harm to the
patient, would be considered as a malpractice. Thus, medical malpractice means failure of taking
required actions or taking inappropriate actions.
 Some common types of medical malpractices are:
1. Wrongful death,
2. Prescribing unnecessary tests,
3. Treatment by non-professionals with fake professional documents,
4. While undertaking operation to a patient on one organ, taking out other important organs
from the body and selling them for making money,
5. Directing the patient to go and purchase medicines from a specific pharmacist, etc.
ESSENTIAL ELEMENTS OF MEDICAL
NEGLIGENCE AND MALPRACTICE
 Elements that need to be present for  Following are the four elements of a
medical negligence: tortious act must be established for a
malpractice claim:
 a) Existence of a professional
relationship between the medical  i) A legal duty was owed whenever the
practitioner and the patient doctor undertakes the care or treatment
of a patient
 b) The medical practitioner must have
acted beneath the standard of level of  ii) Such a duty was breached
care that any other medical practitioner  iii) The breach of duty caused an injury
would have used in the same situation.
to the patient
 c) This care must have caused harm to  iv) Damages, emotional, monetory and
the patient in some way
physical were done.
WHEN DOES MEDICAL NEGLIGENCE
BECOME MEDICAL MALPRACTICE
 Medical negligence becomes medical malpractice when the doctor’s negligent
treatment cause undue injury to the patient and when such a doctor fails to do what
competent doctors would have done in the same situation. Medical malpractice means
that you DID something wrong that you should have known was wrong. When
negligence is not proved when a patient suffers complications, injury, or death because
of a health care professional‘s or health care facility‘s medical intentional or wanton
negligence, then it becomes a medical malpractice.
TORT/CIVIL LAW AND MEDICAL
NEGLIGENCE
 The concept of medical negligence has been accepted in jurisprudence. ‘Tort’ means to hurt. Negligence is a part
of tort law and the idea of hurt is an important consideration in establishing negligence.1 It is the breach of a duty
caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would
not do.
 The Court in Calcutta Medical Research Institute vs Bimalesh Chatterjee said that burden of proof against
negligence and deficiency in service clearly lies on the complainant. Thus, to prove negligence, the plaintiff has to
prove:
 1. That the defendant owed a duty of care towards the plaintiff
 2. That the defendant is responsible for breaching that duty
 3. That the plaintiff has suffered damage as a consequence thereof
 Therefore, a liability will not arise when the patient has suffered an injury, but it will arise when that injury is a
result of the conduct of the doctor which has fallen below that of reasonable care. And as said before, a doctor
does not have to ensure that every patient who seeks help is cured. He is liable only when he makes a breach of
duty which results into consequences. Hence, the plaintiff while proving negligence has to prove at first what is
considered as reasonable under those particular circumstances and then has to prove by showing that the conduct
of the doctor was below his degree.
Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability to the plaintiff. If at
the time of the 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.

Res Ipsa Loquitur: “The thing speaks for itself”

The injured person must prove that the doctor breached his duty of care and failed to set standards of care. By
applying this doctrine the judge accepts that that negligence took place. If the doctor fails to rebut, medical
negligence is proved

This doctrine comes into force only when there is proof that the occurrence was unexpected and couldn’t have
happened without negligence on the part of the doctor.

The Delhi High Court laid down in 2005 that in civil law, there are three degrees of negligence.
(a) Lata Culpa, i.e. Gross neglect
(b) Levis Culpa, i.e.Ordinary neglect and
(c) Levissima Culpa, i.e. Slight neglect

Doctor will not be punished for every act of negligence. Gross and slight negligent will surely be punished but
ordinary negligence is not to be punished.
Negligence on the part of doctor can only be proved if he is responsible for a failure that no other
doctor with ordinary skills would be guilty of it acting with reasonable care. Errors of judgment do
not necessarily imply negligence. Use of wrong drug, or wrong gas during anesthetic process,
removal of wrong limb, performing an operation with wrong apparatus, delegating a responsibility
to a junior knowing that the junior is incapable of dealing with it, injecting a drug into a patient
when the patient is allergic to it, leaving swabs or other items inside the patients after surgery , etc.
are gross mistakes that would lead to medical negligence. An error of judgement constitutes
negligence only if a reasonably competent professional with the standard skills that the defendant
professes to have, and acting with ordinary care, would not have made the same error.
CRIMINAL LIABILITY AND NEGLIGENCE
1. INDIAN PENAL CODE, 1860
 Medical Negligence is nowhere defined in our statues but is mentioned under section 304 A of the Indian
Penal Code, 1860 which states that whoever causes the death of a person by a rash or negligent act not
amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a
fine, or with both.
 The following are the elements that need to be established to determine criminal liability:
a) The motive of the offence
b) The magnitude of the offence
c) The character of the offence
 In the case of Poonam Verma v Ashwin Patel, the Supreme Court distinguished between negligence,
rashness and recklessness.
● A negligent person in deliberately commits an act and violates a positive duty.
● A rash person is the one who knows about the consequences of his actions but foolishly believes
that they won’t take place if he acts rashly.
● A reckless person is the one who knows about the consequences about his actions but does not
care whether they result from his act or not.
Defenses for doctors who are accused of criminal liability are mentioned in section 80 and 88
of the IPC.

● Section 80: Nothing is an offence which is done by accident or misfortune and without any
criminal intention, which is done in a lawful manner with proper care and caution.

● Section 88: a person cannot be accused of an offence if she/ he performs an act in good
faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the
patient has explicitly or implicitly given consent.

The National Consumer Disputes Redressal Commission and the Supreme Court in several
decisions have said that the doctor is not liable for negligence if he has acted in reasonably
and with care, even if the result will lead into an accident leading to death. In such scenarios,
it is implied that a mutual trust exist between the doctor and the patient and such a risk is a
part of the doctor-patient relationship.
2. CONSUMER PROTECTION ACT 1986

The test to determine Medical Negligence by a medical practitioner is the Bolam’s Test
which was given by McNair J. in Bolam’s case.
‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular art. Putting it
another way round, a doctor is not negligent if he is acting in accordance with such a
practice, merely because there is a body of opinion that takes a contrary view.’

Following are the defenses for medical negligence:

 Doctors were considered as Gods but now the belief has been narrowed down because of the cases of medical negligence
and malpractices. Doctors make mistakes which are so dangerous that it could take the lives of their patients. Such acts are
either done negligently, or intentionally and because of these acts, people have undergo immense sufferings.

 As the patient deaths are increasing day by day, medical negligence and malpractice is becoming a threat to human
mankind. Doctors need to understand that they are used to operate carefully and should be fully aware of all the medical
equipment they use. They are to be used carefully and cautiously because if not, then it might cause injury to the patient
which might lead to his death.

 We are slowly losing faith in medical profession because of certain serious cases of medical negligence and malpractice.
But on the other hand, we need to understand that a doctor would not intentionally kill a patient for vengeance. While
treating patients, they are performing the most sacred duties and we should not blame them for that. Instead, we should
raise our voices so that negligent doctors get punished and proper facts should be considered before accusing doctors of
murder.