ARTICLE - MEDICAL NEGLIGENCE

The medical profession is considered a noble profession because it helps in

preserving life. We believe life is God given. Thus, a doctor figures in the
scheme of God as he stands to carry out His command. A patient generally
approaches a doctor/hospital based on his/its reputation. Expectations of a
patient are two-fold: doctors and hospitals are expected to provide medical
treatment with all the knowledge and skill at their command and secondly
they will not do anything to harm the patient in any manner either because
of their negligence, carelessness, or reckless attitude of their staff. Though
a doctor may not be in a position to save his patient's life at all times, he is
expected to use his special knowledge and skill in the most appropriate
manner keeping in mind the interest of the patient who has entrusted his
life to him. Therefore, it is expected that a doctor carry out necessary
investigation or seeks a report from the patient. Furthermore, unless it is an
emergency, he obtains informed consent of the patient before proceeding
with any major treatment, surgical operation, or even invasive
investigation. Failure of a doctor and hospital to discharge this obligation
is essentially a tortious liability. A tort is a civil wrong (right in rem) as
against a contractual obligation (right in personam) – a breach that attracts
judicial intervention by way of awarding damages. Thus, a patient's right
to receive medical attention from doctors and hospitals is essentially a civil
right. The relationship takes the shape of a contract to some extent because
of informed consent, payment of fee, and performance of
surgery/providing treatment, etc. while retaining essential elements of tort.

Examples Of Medical Negligence:There are some errors that are more frequently reported
than others. The five most common examples of medical negligence cases are:

Misdiagnosis
The most common example of medical negligence is misdiagnosis or delayed diagnosis
or failure to diagnose. Perhaps due to a loss of focus, incompetence, or unavailability of
the right tools, some medical practitioners diagnose their patients wrongly, thereby
hindering them from getting the right treatment they need for their condition. Failing to
diagnose a patient correctly can prolong an ailment, cost the patient more money, and
 even cause a permanent injury to the person.

Improper or wrong medication

Prescribing incorrect medication is one of the common cases of medical negligence reported.
This may happen when a doctor write an incorrect dosage for a patient or prescribing of wrong
drug for the patient's illness or receives the medication of another patient.
Anesthesia Administration:
Anesthesiologists Not only do they provide pain relief for the patients, they also have control over
the patient's life functions, including breathing, body temperature, blood pressure, and heart rate.
Anesthesiologists are responsible for the safe delivery of anesthesia to the patients. They are
responsible for pre-operative evaluation, consulting with the surgical staff and post-operative
management of the patients. Anesthesia mistakes happen with major operations as well as with
common elective procedures. An anesthesia error can cause severe permanent brain damage or
death to a patient. Anesthesia errors happen every day in hospitals, doctor's offices, and surgical
centres. Anesthetists and Anesthesiologists play a vital role in surgeries.
Surgical Error
Negligence during surgery is the most common case of medical negligence. Surgical errors may
occur due to various reasons it includes improper preparation, Lack of skills, Taking shortcuts
during surgery to save time or resources. Communication failures may include surgical staff not
communicating properly with one another, mistakes such as the doctor marking the wrong site for
the surgery, and miscommunication about medication dosage that the patient should have after
surgery, performing the incorrect procedure, performing unnecessary surgery. Damaging other
organs, nerves, or tissues during surgery, Leaving medical equipment and foreign objects inside
the patient, providing inadequate post-operative care, including failing to recognize and treat the
symptoms of surgical complications. Reasons may differ but the outcome does not provide any
good to the patient.

In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu
Godbole and Anr., AIR 1969 SC 128[1] and A.S.Mittal v. State of U.P., AIR
1989 SC 1570 [2] , it was laid down that when a doctor is consulted by a
patient, the doctor owes to his patient certain duties which are: (a) duty of
care in deciding whether to undertake the case, (b) duty of care in deciding
what treatment to give, and (c) duty of care in the administration of that
treatment. A breach of any of the above duties may give a cause of action
for negligence and the patient may on that basis recover damages from his
doctor. In the aforementioned case, the apex court interalia observed that
negligence has many manifestations – it may be active negligence,

| Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr.,
AIR 1969 SC 128[1]
|A.S.Mittal v. State of U.P., AIR 1989 SC 1570 [2]
collateral negligence, comparative negligence, concurrent negligence,
continued negligence, criminal negligence, gross negligence, hazardous
negligence, active and passive negligence, willful or reckless negligence,
or negligence per se. Black's Law Dictionary defines negligence per se as
“conduct, whether of action or omission, which may be declared and
treated as negligence without any argument or proof as to the particular
surrounding circumstances, either because it is in violation of statute or
valid Municipal ordinance or because it is so palpably opposed to the
dictates of common prudence that it can be said without hesitation or
doubt that no careful person would have been guilty of it. As a general
rule, the violation of a public duty, enjoined by law for the protection of
person or property, so constitutes.”

RES IPSA LOQUITOR

Under the adversary system of litigation parties have to produce all evidence but
when that evidence is so inadequate or so conflicting that neither party can satisfy
the triers of fact as to the truth of his version of the case , some device has to found
whereby someone must loose. That device is the burden of proof . As prosser puts
it , the risk of non persuasion is called the burden of proof . The party having the
burden of proof may be aided by procedural devices known as presumptions . This
sort of presumption is raised by the use of the maxim res ipsa loquitor . Earl , CJ
stated this doctrine for the first time in 1865 in Scott V. London and St. Katherine
Docks Co[3]
It is a common rule that one who alleges must prove and the burden of proof of
negligence is on the plaintiff . But i some cases the mere happening of an accident
affords prima facie evidence that the tort constituting the cause of action is the
result of want of care on the part of the defendant . This is known as the maxim of
res ipsa Loquitor .
The Supreme Court of India in Shyam Sunder case [4] observed that :
The maxim does not embody any rule of substantive law nor a rule of evidence . It is perhaps not a
rule of any kind but simply the caption to an argument on the evidence …. The maxim is only a
convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for
a rebuttal from the defendant ,without having to allege and prove any specific act or omission on the
part of the defendant .

|Scott V. London and St. Katherine Docks Co[3]

| Shyam Sunder case [4]
Clear case of medical negligence (similar to res ipsa loquitor?

An appellant doctor was found by the State Commission to be responsible for

leaving ribbon gauze in the right side of the nose after a septoplasty resulting
in several complications. The complainant suffered and had to be under
treatment all the while the National Commission confirmed the order and
observed that it has no option but to deduce that it was a clear case of
medical negligence on the part of the appellant. The National Commission in
the case of Dr. Ravishankar vs. Jery K. Thomas and Anr, II (2006) CPJ 138
(NC)[5]. held that based on the facts and circumstances, the obvious deduction
is that the appellant doctor is responsible for leaving behind ribbon gauze
resulting in complications. Medical negligence was proved.

|Dr. Ravishankar vs. Jery K. Thomas and Anr, II (2006) CPJ 138 (NC)[5].

CONCLUSION

In these circumstances, deduction is obvious that it was the appellant who

was responsible for leaving behind ribbon gauze in the right side of the
nose after the septoplasty performed by him on August 18, 1999 resulting
in several complications. Because of this, the complainant suffered and
had to be under treatment leaving us with no option but to deduce that it
was a clear case of medical negligence on the part of the appellant.

REFERENCES
Articles from Indian Journal of Urology : IJU : Journal of the Urological Society of India
are provided here courtesy of Wolters Kluwer -- Medknow Publications
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963
Medical Negligence (Truth Revealed): Medical & Law: Dr. Mahendra Josh
Legalserviceindia
Book LAW OF TORTS
AUTHOR - B.M. GANDHI