GITARATTAN INTERNATIONAL BUSINESS SCHOOL

DELHI-110085
Batch (2016-2021)

Research paper of Health care Law

Submitted by: Dhruv Sharma

Roll No: 01319103516
Submitted to: Mrs Shivangi Sharma
Professional negligence
Professional negligence is defined as absence of reasonable care and skill, or wilful
negligence of a medical practitioner, in the treatment of a patient which causes his
bodily injury or death.
It is the “the act of omission or commission”.
Act of omission: failing to do something that one is supposed to do
Act of commission: doing something one is not supposed to do
• In criminal wounding operation should not be performed unless absolutely necessary.
• Keep yourself informed of technical advances and use of standard procedures.
• No experimental method should be adopted without consent of the patient.
• No procedure should be undertaken beyond one’s skill.
• Frequently check condition of equipment and use available safety guidelines.
• Proper instructions should be given to the patient and proper post operative care should
be taken.
• No female patient is to be examined unless third person is present.
• Do not order a prescription over telephone, because of possibility of misunderstanding
as to the drugs or dosage.
• Anesthesia should be given by a qualified person.
• Exercise care in selection of assistants and entrusting of duties to them.
• Depending upon the court to which the case of professional negligence is taken,
it is of two types -
1. Civil professional negligence
2. Criminal professional negligence
 Civil negligence
The question of civil negligence arises-
• When a patient or in case of death, any relative brings suit in a Civil court for
getting compensation from his doctor, if he has suffered injury due to negligence
• When a doctor brings a civil suit for obtaining his fees from the patient or his
relatives, who refuse to pay the same alleging professional negligence.
Elements of negligence
1. DUTY: existence of a duty of care by the doctor
2. DERELICTION: the failure in the part of the doctor to maintain applicable
standard of care and skill
3. DIRECT CAUSATION: the failure to exercise a duty of care must lead to damage.
The patient must show that a reasonable close and causal connection exists
between the negligent act and the resulting injury without any intervening
cause. This is known as Legal Cause or Proximate Cause.
4. DAMAGE: the damage should be of a type that would have been foreseen by a
reasonable physician.
The doctrine of res ipsa loquitur
• The patient need not prove negligence in cases where the rule of “res ipsa loquitor”
applies, which means the thing or fact speaks for itself.
Conditions to be satisfied –
1. That in the absence of negligence, the injury would not have occurred ordinarily
2. That the doctor had exclusive control over the injury-producing instrument or treatment
3. That the patient was not guilty of contributory negligence
Examples- Prescribing an overdose of medicine producing ill effects.
Failure to remove swabs during operation, which may lead to complications or
death.
CALCULATED RISK CASES
The theory of the calculated risk doctrine is that res ipsa loquitor should not be
applied when the injury complained is of a type that may occur even though
reasonable care has been employed.
This doctrine is an important defence to any doctor sued for professional
negligence, who can produce expert evidence or statistics demonstrating that the
accepted method of treatment he employed involved unavoidable risks.
Contributory negligence
• Contributory negligence is any unreasonable conduct or absence of ordinary care, on the
part of the patient, which combined with the doctor’s negligence contributed to the
injury as a direct, proximate cause and without which the injury would not have
occurred.
• Examples:
i. Failure to cooperate with his doctor in carrying out all reasonable and proper
instructions.
ii. Failure to give the doctor accurate medical history.
• Liability of the doctor: The doctor cannot plead contributory negligence if he fails to give
proper instructions.
• The burden of proof lies entirely on the doctor.
CRIMINAL NEGLIGENCE
Criminal negligence occurs if any one of the following are satisfied:
• Indifference to an obvious risk of injury to health.
• Actual foresight of the risk, but continuation of the same treatment.
• Appreciation of the risk and intention to avoid it, but show high degree
of negligence in the attempted avoidance.
• Inattention or failure to avoid a serious risk
It occurs when the doctor shows gross lack of competence or inaction, or recklessness or indifference to
patient safety, gross negligence in selection and application of remedies or utter disregard for life and
safety of the patient, as to amount to a crime against state and conduct deserving punishment.
It involves an extreme departure from the ordinary standard of care.
It is practically limited to cases in which the patient has died.
examples
• Amputation of wrong finger or operation on wrong limb or wrong patient.
• Leaving instruments, tubes, sponges or swabs in the abdomen.
• Performing criminal abortion
• Administration of wrong substance into eye causing loss of vision
• Grossly incompetent administration of anesthetic by a doctor addicted to inhalation of it.
• Gross mismanagement of the delivery of a woman, especially by a doctor under influence of
drinks or drugs.
• Death resulting from an operation or injection of any drug producing anaphylaxis by a quack is
considered criminal negligence.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL NEGLIGENCE
ETHICAL NEGLIGENCE

• Ethical negligence is the violation of the Code of Medical Ethics

• In this no financial compensation is payable, unless there is also civil negligence
• If a complaint is made and the facts proved, the name of the doctor may be
erased from the medical register.
• This term should be better avoided.
PRECAUTION AGAINST NEGLIGENCE

To prove that reasonable care and skill has been exercised, the following precautions
should be taken:
• Obtain informed consent of the patient. (operation and giving anesthesia)
• Establish good rapport (relationship or communication) with patient
• Keep full accurate and legible medical records.
• Employ ordinary skill and care at all times.
• Confirm diagnosis by laboratory tests.
• Take skiagrams in bone or joint injuries if diagnosis is doubtful.
• Immunisation should be done whenever necessary.
• Sensitivity tests should be done before injecting preparations likely to cause anaphylactic
shock
.

• In suspected cases of cancer, all laboratory investigations should be done without delay
for early diagnosis.
• Seek consultation where necessary.
• Do not criticize or condemn the professional ability of another doctor, especially in
presence of the patient.
• Do not make a statement constituting or admitting fault on your part.
• Avoid over-confident prognosis and promising too much to the patient.
• Never guarantee a cure.
• The patient must not be abandoned.
• Inform the patient of any intended absence from practice or recommend or make
available a qualified substitute.
• Transfer the patient if facilities are inadequate to handle his problem
• The drug should be identified before being injected or used otherwise.
DEFENCES AGAINST NEGLIGENCE

• No duty owed to the plaintiff.

• Duty discharged according to prevailing standards.
• Misadventure(mischance or accident or disaster).
• Error of judgement.
• Res judicata i.e. if a question of negligence against a doctor has already been decided by
the Court, the patient cannot contest the same in another proceeding on the same set of
facts. Only appeal can be made.
• Limitations: A case should be filed within 2 years from date of alleged negligence. Where
breach of duty to provide care as per a contract between a patient and a doctor is
committed, legal action can be initiated upto 3 years from date of alleged negligence.