PROFESSIONAL NEGLIGENCE

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
• 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.
Burden of proof- The patient should all four elements of negligence by preponderance
of evidence.

The patient cannot sue a doctor for negligence if no damage has occurred. The patient
must suffer some loss, which can be measured and compensated in terms of money.

LIABILITY – The amount of damage done is a measure of the extent of liability.

Example: Medical expenses including medical rehabilitation, transportation, daily nursing
care, etc.
Loss of earning, due to absence from work.
EXAMPLES OF MEDICAL NEGLIGENCE

 Refusal to admit patients requiring urgent hospitalisation.

 Failure to obtain informed consent
 Not ordering x-ray examination when there is a possibility of fracture
 Failure to warn the patient of side effects
 To cover up an error of judgement
A doctor is not liable for
• An error of judgement or diagnosis, if he has secured all necessary data on which to base a
sound judgement.
• Failure to cure or for bad results that may follow, if he has exercised reasonable care and
skill.
No doctor ensures success either in his diagnosis or his treatment.
The law considers the doctor negligent only, when
1. He did not consider that such a complication might occur
2. That he failed to watch for it carefully or to recognise it promptly
3. To treat in a timely and appropriate fashion
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.
NOVUS ACTUS INTERVENIENS

 A person is responsible not only for his actions, but also for the logical consequences of
those actions.
 This principle applies to cases of assault and accidental injury. Sometimes, such a continuity
of events is broken by an entirely new and unexpected happening due to the negligence of
the other person. In such cases, the assailant will not be fully responsible for the ultimate
harm.
 Example: leaving a swab or a surgical instrument in the abdomen after the repair of an
internal injury.
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.
PROSECUTION

Criminal negligence is more serious than civil negligence.

Section 304-A, I.P.C. deals with criminal negligence.
“Whoever causes death of any person, by doing any rash or negligent act not amounting to
culpable homicide, shall be punished with imprisonment up to 2 years, or with fine or both”
For criminal negligence, the doctor maybe prosecuted by the police and charged in criminal court,
with having caused death of the patient by rash or negligent act.
The prosecution must prove all the facts to establish civil negligence(except monetary loss), and
gross negligence and disregard for the life and safety of the patient.
A physician may become liable to both civil and criminal negligence by a single professional act,
example-if a physician performs an unauthorized operation on a patient, he may be sued in civil
Court for damages and in criminal Court for assault.
A doctor will not be criminally liable if a patient dies due to an error of judgement or carelessness
or want of due caution though he can be liable to pay compensation.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL NEGLIGENCE
CORPORATE NEGLIGENCE
 The theory of corporate liability is typically applied in cases involving hospitals and their staff
physicians.
 Hospitals have independent duty to their patients to investigate adequacy and review the
competence of staff physicians. This theory is based on the principle that hospitals are in far
better position than their patients to supervise a physician’s performance and provide quality
control.
 This legal theory has been used to attack the allegedly negligent section, retention or
supervision of its participating physicians, that is negligent credentialing.
It is the failure of those persons, who are responsible for providing accommodation, facilities,
and treatment to follow the established standard of conduct.
 It occurs when hospital provides defective equipment or drugs, selects or retains
incompetent employees, or fails in some manner to meet the accepted standard of care, and
such failure results in injury to the patient to whom the hospital owes a duty.
.

 Here the treating doctor and other category of persons who were negligent and
hospital administrators will be held responsible.
 If a hospital knows or should have known, that one of the patient is likely to be
victim of professional negligence by a doctor or its staff, the hospital is liable even
though that the doctor is an independent with staff privileges at the hospital.
 If the doctor is employed by a patient in his private capacity and the hospital only
provides facilities for treatment, the doctor alone is held responsible for any
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
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 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.
 .

 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.
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.
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