Introduction

Indian Society is experiencing growing awareness about the patients rights. This can be concluded by the increasing number of litigation relating to medical profession, many of which are related to ‘Negligence’ by Doctors. So there is a need to look into what exactly ‘Negligence’ is from the point of  view of ‘Law of Torts’ and different provisions related to ‘Negligence’.

Definitions & meaning of Negligence

The term Negligence is derived from the Latin word ‘negligentia’, which means ‘failing to pick up’. In the general, the term negligence means the act of being careless and in the legal sense, it signifies the failure to exercise a standard of care which the doer as a reasonable man should have exercised in a particular situation.

Negligence is the breach of legal duty to take care and caused by the omission to do something which a prudent or reasonable man Would not do.

Negligence is a state of mind. There may not be any intention nor incompetence but the attention required is missing.

Concise law dictionary : Negligence in law signifies a coming short of the performance of duty.

Oxford dictionary : The failure to give someone or something enough care or attention.

Components of Negligence in medical profession :

1. The doctor should owe a duty to treat patients with proper care .

Doctors have a right to choose patient except in the cases of emergency. But as soon as the doctor accepts the patient, his duty starts and continue to taking proper care, use competence till the patients are cured except in the cases where patient dies on his own medical condition or not following doctor’s instructions, or patient changes the treating doctor, or patient is referred or transferred to a more qualified specialist on request.

2. There must be a breach of duty.

3.  There must be a damage as result of breach of duty.

4. The damage or harm should be immediate cause of breach of duty.

2. Breach of Duty.

It is not necessary that doctor can cure each and every patient but, he has to ensure that he maintains a reasonable degree of care and competence. It is said to be a breach of duty when standard care is not taken prescribed by or taken by medical fraternity. The standard care may differ from doctor to doctor but there is a minimum expected standard of management of patient in the given situation. When a standard pear group of medical individuals defines, a minimum standard care for a particular situation, that care becomes standard to compare the action taken by the individual doctor. And that becomes standard to compare the action taken by the individual doctor. And that becomes a guideline to decide whether there is a breach of the duty to care or not or whether the care given to the patient was standard or not.

To see whether the doctor breached the duty of care one has to see whether the doctor has failed to take reasonable care while performing in that area of expertise or field. This is also known as the “Bolam test”.

The Bolam Test was first implemented following the 1957 case of Bolam vs Friern Hospital Management Committee. The case was related to an incident at the hospital whereby the patient – Mr. Bolam – received Electro Convulsive Therapy (ECT) which caused him serious fractures. Mr. Bolam argued that his doctor has not taken proper care. Mr. Bolam failed in this case as it was deemed that the doctor had followed the medical protocol at the time. The Bolam Test is based on the assumption of determining whether the actions of the doctor are in line with the actions of other doctors who are in their position.

3. Harm caused due to the breach in the duty of standard care.

This is an important ingredient. It is not negligent, if harms is not done. It was held in Sidhraj Dhadda v. State of Rajasthan that, if the complainanat proves that the doctor was negligent but fails to prove that, any loss or injury was caused thereby, then he will not be entitle to claim any compensation.

4. The harm should be immediate cause of the breach of duty and not the remote .

It is very essential so that the association of the harm to the breach of duty can be easily identifiable.

Different Types of Negligence

Negligence can be differentiated as,

Active & Passive Negligence : Active negligence is an action which causes damage.  In contrast, passive negligence is negligence due to inaction, omission, or the failure to do something that you are legally obligated to do.

Gross Negligence : It occurs when there is a total lack of care, safety. This is much more serious and may result in jail punishment if found guilty.

Comparative Negligence : Comparative negligence occurs when two parties are at fault and have partially contributed to their damages and injuries. As a result, the damages are split between the two according to their responsibility for the injury or damage.

Contributory Negligence : Contributory negligence occurs when the plaintiff contributed to their own damages or injury. 

Hazardous Negligence : Hazardous negligence is a type of negligence that involves careless or reckless conduct that exposes someone to extreme danger of injury or imminent peril.

Criminal negligence : It refers to conduct in which a person ignores a known or obvious risk, or disregards the life and safety of others. This is very much similar to Willful or Reckless Negligence.

Law of Torts and Negligence

The concept of tort law is to redress a wrong done to a person and provide relief from the wrongful acts of others, usually by awarding monetary damages as compensation. The original intent of tort is to provide full compensation for proved harms.

Negligence – A duty is imposed on a person by law to act with care towards others, if this duty exists and there is a failure to act carefully and another suffers loss, then the tort of negligence is committed.

In order to pursue legal action, the victim must be able to prove:

• The defendant owed them duty of care
• The defendant did not provide that duty of care
• The lack of care was the legal cause of the victim’s injuries
• The victim suffered an injury or some sort of damage

Four major types of Negligence :

Gross Negligence : It occurs when there is a total lack of care, safety.

Comparative Negligence : Comparative negligence occurs when two parties are at fault and have partially contributed to their damages and injuries.

Contributory Negligence : Contributory negligence occurs when the plaintiff contributed to their own damages or injury. 

Vicarious Negligence : Vicarious Negligence is when someone is indirectly responsible.

Major Types of Negligence in Medical Practice

(A) Composite Negligence :

When the harm is done to the patients by contribution of two or more persons and not contributed by the patient himself, it is said to be ‘Composite Negligence’. In this type of negligence, patient has a choice of proceeding against all or anyone or more than one of the wrong doers.

In Arunaben D. Kothari v. Navadeep Clinic, patient was referred by surgeon to cardiologistfor pre-operative assessment. Cardiologist took ECG and declared him fit for surgery. He developed cardiorespiratory arrest during surgery. He was again seen by the same cardiologist but the patient was then dead. The court awarded a compensation of Rs. 4.15 L with sharing of liability as surgeon 30%, cardiologist 60% and anesthetist 10%.

(B) Contributory Negligence :

Sometimes the alleged damage suffered by the patient or the negligent act of the treating physician is related to some undesirable or negligent act of the patient himself. If the patient would have acted in the way as is expected, or desirable from patient, the doctor either would not have committed the mistake or the damage would have not been caused to the patient.

Contributory negligence means that when the immediate cause of the damage is the negligence of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the defendant can use it as a defense. This is because the plaintiff in such a cause is considered to be the author of his own wrong. It is based on the maxim volenti non fit iniuria which states that if someone willingly places themselves in position which might result in harm, they are not entitled to claim for damages caused by such harm.

Hence in Contributory Negligence there is

1. Some contribution by patient and /or complainant to the damage suffered by him.

2. The doctor will not be responsible if the negligent act is of patient.

3. Doctor will be responsible only if he is partly responsible.

Contributory Negligence as a defence by the doctor :

To establish contributory negligence as defense for action against him for negligence the doctor or the defendant must prove :

1. Plaintiff failed to take ordinary care of himself.

2. Patient’s failure to take care has resulted in harm.

3. The doctor explained all the mode of administration, side effects and wanings.

4. The patient has changed the dose schedule, time schedule and mode of administrationleading to harm.

Case Laws of Contributory Negligence :

1. Md. Aslam v. Ideal Nursing Home (1997)

The patient underwent hysterectomy operation for removal of Uterus and ovaries. The patient developed infection and wound was not healing as she did not follow the instructions of the doctor. The patient has to undergo emergency operation under general anesthesia and she died of cardiac arrest during the operation.The doctor was not held liable as damage was considered to be due to contributory negligence.

2. Hans Raj v. Dr.K.S. Chugh (2000)

The patient was taking extra dose of steroids without contacting the doctor for three months and thereby suffered a disability. The doctor was not held negligent or liable as damage was considered to be due to contributory negligence.

(C) Corporate Negligence :

This comes up in cases if hospitals or nursing homes where patient care is under the responsibility of many like doctors, nurses, paramedical staff etc.

If a health-care facility fails to maintain a clean and safe environment, hire competent and properly trained employees, oversee care and implement safety policies, it can be held liable for any harm to patients.

V.P. Shanta v. Cosmopolitan Hospital (P) Ltd. (1997)

The patient had undergone an operation for fracture hip and also for removing sakivary gland. The patient remained unattended by any doctor for aboutnone hour during the post operative period when the patient had experienced breathing trouble. Ultimately the patient died of massive heart attack’ The State commission of Kerala did not hold the Surgeon as negligent but the hospital was held liable for deficiency in service.

The Doctrine of Res Ipsa Loquitor

A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligence The general purpose of the doctrine is “things speak for itself or tells his own story”.

When Does Res Ipsa Loquitur Apply to a Medical Malpractice Case?

In a medical malpractice case, res ipsa loquitur will usually apply if the injured patient proves that:

*the harm ordinarily would not have happened unless someone was negligent

*the harm occurred while the injured party was under the care and control of the health care provider, and

*the injured patient did not contribute to the harm.

Where res ipsa loquitur applies, the jury can presume that the health care provider was negligent without requiring further proof from the injured party. It then falls on the provider to disprove any wrongdoing.

Medical negligence/Malpractice can be charged under the following laws

1. Civil Laws under Tort compensated by paying damages.

2. Civil Laws under the breach of contract compensated by paying damages.

3. Statutory Laws : e.g. compulsory registration of the medical practitioner or healthcare institutions so as to check qualifications, standard of treatment etc

4. Criminal action under section 304A and 337, 338 related to rash and negligent acts resulting into grievous hurt or death.

5. Consumer Protection Act.

Burden of Proof

1. Usually it is on complainant i.e. patient and/or his relative. In criminal cases, it is to be proved beyond doubt.

2. Sometimes the burden of proof shifts on to the defendant in the conditions called Res Ipsa Loquitor