Download - Medical Negligence Group 21
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Medicalnegligence
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Definition
Negligence is the breach of aduty caused by the omissionto do something which a
reasonable man, guided bythose considerations whichordinarily regulate the
conduct of human affairswould do, or doing somethingwhich a prudent and
reasonable man would not do
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Duty & Obligationof DoctorDuties to patient
Duties to public
Duties towards law enforcersDuties not to violate
professional ethics.
Duties not to do anythingillegal or hide illegal act.
Duties to each other.
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Negligence &
Deficiency of Service
Deficiency in medical practice hasbeen equated with medicalnegligence in CPA.
However where there is nonegligence in treatment but onlydeficiency of service is seen likeloss of path samples, wrong
billing, delay in investigations etc.However the same principle has
been applied for both.
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Civil law and
negligence A doctor can be held liable for negligence only if one can
prove that she/ he is guilty of a failure of if acting withreason that no doctor with ordinary skills would beguilty in resonanable care.
If the doctor has adopted the right course of treatment,if she/ he is skilled and has worked with a method andmanner best suited to the patient, she/ he cannot beblamed for negligence if the patient is not totally cured.
The complainant must prove the allegation against thedoctor by citing the best evidence available in medicalscience and bypresenting expert opinion .
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INFORMED CONSENT
Informed consent is a legal procedure toensure that the patient knows all of therisks and costs involved in a treatment.
This includes informing about the natureof treatment, possible alternativetreatments, and possible risks andbenefits of the treatment.
For the informed consent to beconsidered valid , the patient must becompetent and the consent should begiven voluntarily.
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TORT
A breach of any of the duties gives a rightof action for negligence to the patient- Acivil action for tort of negligence
To establish Tort of negligence threeingredients are essential-
X owed a Duty of care to Y Xs acts or omissions constituted breach
of those duties Leading to an injury or damage to Y Must be shown that there was a causal
link between the breach of duty andharm.
it must be shown that the harm was nottoo remote.
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The Bolam Test
The standard of care which is requiredfrom a medical practitioner as laiddown by McNairJ in Bolam v FriernHospital Management Committee(1957)1 WLR 582-
the test is the standard of the ordinaryskilled man exercising and professing tohave that special skill. A man need notpossess expert skill, it is well established
law that it is sufficient if he exercisesthe ordinary skill of an ordinarycompetent man exercising thatparticular article.
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CASE LAW
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(1) Where services are rendered free of
charge to everybody availing of the said service;
(2) Where charges are required to be paid by
persons availing of services, but certain
categories of persons who cannot afford to pay
are rendered service free of charge, and
(3) Where charges are required to be paid by
persons availing of services, but certaincategories of persons who cannot afford to pay
are rendered service free of charge.
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Dr Laxman Joshi vs. DrTrambak godboleThe Supreme Court held
that the duty of a doctor will include (a) a
duty of care in deciding whether to
undertake a case and
(b) a duty of care in deciding what
treatment to give or
(c) a duty of care in administration of that
treatment.Any breach of these duties gives a rise of
action for negligent acts towards the
patient.
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The court observed that the doctor has the
discretion in choosing the treatment, which
he proposes to give to the patient in one way
or the other. The discretion of the doctor is relatively
wider in cases of emergency.
In this way the Supreme Court of India has
affirmed the English law on the subject, viz.that the breach of duty of care is the basis for
liability for negligence and secondly it lays
down the standard of care i.e. the doctor must
bring to his task a reasonable degree of skilland knowledge and must exercise a
reasonable degree of care.
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Criminal negligence
Section 304A of the Indian Penal Code of 1860 states thatwhoever causes the death of a person by a rash ornegligent act not amounting to culpable homicide shallbe punished with imprisonment for a term of two years,or with a fine, or with both.
the Supreme Court has pointed out that liability in civillaw is based upon the amount of damages incurred; incriminal law, the amount and degree of negligence is afactor in determining liabilityie gross negligence.However, certain elements must be established to
determine criminal liability in any particular case is the motive of the offence
the magnitude of the offence
the character of the offender
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Negligence, Rashness,and Recklessness
A negligent person is one who inadvertentlycommits an act of omission and violates apositive duty.
A person who is rash knows the
consequences but foolishly thinks that theywill not occur as a result of her/ his act.
A reckless person knows the consequencesbut does not carewhether or not they result
from her/ his act. Any conductfalling short of recklessness and
deliberate wrongdoing should not be the subjectof criminal liability
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Non-Allopath
practicing AllopathyIf a person practices medicine without
possessing either the requisite qualification
or enrolment under Indian Medical Council
Act, 1956, he/she becomes liable to bepunished with imprisonment or fine or both
The Honble Supreme CourtinPoonam
Verma Vs A. Patel & Ors:I (1996) CPJ 1 (SC)
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BURDEN OF PROOF Generally accepted by the Common Law (English
Law), the Burden of Proof lies with the plaintiff orcomplainant or the patient during the courtproceeding i.e. the patient has to show the fourelements necessary to show negligence:
Duty of care
Breach of duty
Injury
Proximate cause The medical professional has to or can bring his
own account the facts to disprove plaintiff orpatient.
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RES IPSA LOQUITUR RES IPSA LOQUITUR is it speaks for
itself or thing speaks for itself.
This doctrine is accepted in cases thatclearly show the defendant to be on the
wrong side of the law .
The incident itself is sufficiently evidentand the court requires no other proof orevidence. This is an exception to thegeneral principle of Burden of proof,
which lies with the plaintiff orcomplainant.
eg. :Operating on wrong part of the body,leaving foreign material in the body.
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Compensation
Fine
Cancellation of license
Imprisonment.
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Apart From CPA Patient CanComplain To
a) Medical Council of India and DentalCouncil of India.
b) Civil Courts.
c) MRTP (Monopolies and RestrictiveTrade Practices Commission)
d) Public Interest Litigation.
e) Sections of Indian Penal Code, 1860
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