MEDICAL NEGLIGENCE :

NEGLIGENCE :
Negligence is the breach of a duty caused by omission to do something which a
reasonable man would do or refrain from doing some act which a reasonable man would
not do.
Reasonable meaning : prudent person/ordinary person who normally exercises due
care while avoiding extremes of both audacity and caution.

Essentials :
Plaintiff has to prove the following essentials in an action of negligence :
1. Defendant owed duty of care to the plaintiff
2. The defendant had made a breach of that duty
3. The plaintiff suffered damage as a consequence thereof.

1. Duty of care to the plaintiff :

It means a legal duty rather than a mere moral, religious or social duty.The
plaintiff has to establish that the defendant owed to him a specific legal duty to take care ,
of which he has made a breach.
2. Breach of that duty :
Non observance of due care which is required in a particular situation.
3. Damage:
Defendants breach of duty must cause damage to the plaintiff. The plaintiff has also
to show that the damage thus caused is not too remote a consequence of the defendants
negligence.
Medical negligence :
Any reasonable man entering into a profession which requires a particular level of

learning to be called a professional of that branch, impliedly assures the person dealing
with him that the skill which he professes to possess shall be exercised and exercised with
reasonable degree of care and caution. Such a person when consulted by a patient owes
certain duties :
1.Duty of care in deciding whether to undertake the case.
2. Duty of care in deciding what treatment is to be given.
3. Duty of care in the administration of that treatment.
A breach of any of these duties gives a right of action to the patient for the negligence.
This is called as medical negligence. Hence the doctors must bring to the task a
reasonable degree of care.Neither the very highest or the very low degree is wanted. Such
ordinary care and competence judged in the light of the particular circumstances of each
case is what the law requires. In Jacob Mathew case, the SC has dealt with this.
In Acchutrao Haribhau Khodwa vs. State of Maharashtra(AIR 1996) , the plaintiffs
wife was hospitalized in a govt hospital and was operated.The doctors while performing a
sterilization operation left the mop in the body of the patient which resulted in the
formation of puss and eventually leading to death subsequently.Hence the court held the
surgeon who performed that operation was held liable.
In Poonam Verma vs.Ashwin Patel and others(AIR 1996),
A doctor registered as Medical Practitioner and entitled to practice in
Homeopathy only, prescribed an Allopathic medicine to the patient .As a result the patient
died. The doctor was held to be negligent and liable to compensate the wife of the
deceased for the death of the her husband.
DEGREES OF NEGLIGENCE:
1.Gross neglect
2. Ordinary neglect
3.Slight neglect
Every act of negligence by the doctor shall not attract punishment. It depends upon the
degree of negligence as stated above.Slight neglect will surely not be punishable and

ordinary neglect, as the name suggests, is also not to be punished. If we club these two,
we get two categories: negligence for which the doctor shall be liable and that negligence
for which the doctor shall not be liable. In most of the cases, the dividing line shall be
quite clear, however, the problem is in those cases where the dividing line is thin.
Medical negligence - A CIVIL WRONG OR CRIMINAL OFFENCE?
To term negligence as civil wrong or criminal offence is difficult as it relates to
breach of his duty and resultant damage.
To constitute negligence as criminal wrong it is not the amount of damages but the
amount and degree of negligence which matters. Element of mens rea must be shown to
exist. Negligence which is neither gross/of a higher degree may provide a ground for
action in civil law but not in criminal law. To prosecute a medical professional for
negligence under criminal law it must be shown that the accused did something or failed
to do something which in the given facts and circumstances no medical professional in
his ordinary sense would have done or failed to do.
MEDICAL NEGLIGECE AND HOSPITALS:
Hospitals may be held liable for their services individually or vicariously. They
can be charged with negligence and sued either in criminal/civil courts.Further hospital
liability with respect to medical negligence can be direct liability or vicarious
liability.Direct liability refers to the deficiency of the hospital itself in providing safe and
suitable environment for treatment as promised.Vicarious liability means liability of an
employer for negligent act of its employees.(so long as the act occurs within the course
and scope of their employment)
MEDICAL NEGLIGENCE - WHETHER UNDER COSNUMER PROTECTION ACT:
In INDIAN MEDICAL ASSOCIATION VS. V.P.SHANTHA(AIR 1995)
SC held that the advice rendered by the medical practitioner to their patient and
diagnosis and treatment of patient is a service under sec 2(1) (o) of the consumer
protection act 1986 and if there is any deficiency in it the doctors will be liable except
where a doctor offers service to patient under personal contract of service.

But when a doctor is appointed by a hospital to render service free of charge it will
not be service under sec 2(1) (a) of the act.
CONCLUSION :
The idea of negligence can be understood only when there is clarity about the duty of
the doctor, assisting staff and the hospital as a whole. In several cases, there is a problem
of overlapping duties and thus, it becomes difficult to draw a line between the duty of A
and B. In any case, the doctor is under an obligation and is directly liable for the acts
performed by him. For the assisting staff, it is the duty of the hospital and the person
himself. Both have a joint and several liability. Thus, it is advisable to have clear-cut
duties laid down for different persons. But, in practice, this is not so easy. It cannot be
done perfectly. The choice is to try doing it in an imperfect manner or not doing it at all.
As of now, the judgments leave a lot of room for discretion, which at times may be
exercised by different persons, including doctors and judicial officers, in an undesirable
manner. The law on the subject needs to be more precise and certain. That will surely
give a better understanding about the reasonable man.