Medical negligence occurs when a medical professional deviates from the accepted standard of care in treating a patient, potentially causing injury. It is the basis for medical malpractice lawsuits seeking compensation. To succeed, a plaintiff must prove: (1) a duty of care was owed by the medical professional; (2) this duty was breached by failing to meet the standard of care; (3) this breach caused injury; and (4) damages resulted from the injury. Common types of negligence include misdiagnosis, surgical errors, medication errors, and failure to properly follow up on treatment. Plaintiffs can establish negligence through expert testimony on the standard of care and whether the medical professional's actions deviated from this standard.

1. MedicalNegligence
o Medical negligence is the act or omission in treatment of a patient by a medical
professional, which deviates from the accepted medical standard of care. medical
standard of care
o Medical negligence is often confused for medical malpractice, when in fact, negligence is
only one aspect of a meritorious medical malpractice claim.
o In terms of medical malpractice tort law, medical negligence is usually the basis for a lawsuit
demanding compensation for an injury caused a patient by a doctor or other medical
professional. While negligence on it's own does not merit a medical malpractice claim,
compensation for an injury
o Medical negligence occurs when a doctor, dentist, nurse, surgeon or any other medical
professional performs their job in a way that deviates from the accepted medical standard of
care.
o If a doctor breaks the rules regarding how to treat a patient, and does something that is
"against the rules", then that doctor has failed to perform is duty, and is said to be negligent.
Medical Malpractice
 Professional liability for personal injury
 When physician agrees to diagnose & treat a patient, assumes a duty of care toward that patient
 Medical Negligence: failure to meet that duty of care
To provide the standard of care
 May include criminal negligence, malicious intent, or strict liability
 May also be subject to disciplinary sanctions By State Medical Boards
Types and Examples of Medical Negligence
a) Civil (minor personal injury and property damage)
a) Criminal (results in death where there was no intention of injury)
Medical negligence can occur in an infinite number of ways, but many instances of medical negligence can be
grouped into one of the following categories:
 Misdiagnosis
 Failure to Timely
 Diagnose Surgical
 Error Failure to Follow Up with Treatment
 Failure to Treat in a Timely Manner
 Anesthesia Error
 Medication or Prescription Error

2. MISDIAGNOSIS
 The first step after admittance to a hospital, medical clinic, emergency room, dental
office or any other professional medical establishment is diagnosis. Correctly diagnosing
symptoms is critical to proving medical care to any patient, however sometimes an error
in diagnosis can occur in cases where symptoms may not be readily apparent or telling.
 Common types of misdiagnosis include:
Failure to diagnosis cancer
Misdiagnosis of symptoms of impending heart attack
Misdiagnosis of stroke etc
Delayed Diagnosis
 A delayed diagnosis can be a form of medical negligence if another doctor would have
reasonably diagnosed the same conditions in a timely fashion. Adelay in diagnosis can
lead to an undue injury to the patient if the illness or injury is allowed to progress rather
than being treated.
 Commonly a diagnosis will not be made in a timely manner due to a doctor having a
workload that diminishes his or her capacity to properly administer for any damages
resulting from the delay in diagnosis and treatment.
 Some more serious examples are:
Delay diagnosis of Heart Attack
Delay diagnosis of Cancer
Failure to timely diagnosis Appendicitis
Delay in diagnosis and treatment of Stroke etc
SURGICAL ERRORS
 Medical negligence during a surgical procedure can often result in further surgeries,
infection and sepsis, internal organ damages, immune system failure and even death.
 Surgical procedures require an enormous level of skill, and even the slightest mistakes
can have profound effects on the patients
 Surgical errors can occurs in a variety of forms ranging from wrong site surgery,
unintentional lacerations of an internal organ, uncontrolled blood loss, perforation of an
organ or a foreign object being left in the patients body.
WRONG SITE SURGERY
 Wrong site surgery is type of surgical errors, usually involving a mis communication or
errors in hospital records which leads to a surgeon operating on the wrong organ or
exteral appendage.
 In some of the worst cases of wrong site surgeris, patients requiring amputation of an
arm or leg will have the wrong a one amputated, which results in the loss of both
appendags instead of just one.

3. UNINTENTIONALLACERATION or PERFORATION
 One of the mostdangerousrisksinany surgical procedure isthatof cutting,laceratingor
perforatinganartery,organ or vessel.There are severalwaysasurgeoncan make a potentially
fatal mistake duringanoperation.
 It ispossible toperforate abowel orveesl whichmaygounnoticedcausingbile toleakinto the
bodycavity.
Unnecessary Surgery
 Unneccessary surgery is often related to a misdiagnosis of patient symptoms or a
medical decision without proper consideration of other options or risk.
 Alternatively sometimes surgery is choosen over more conventional treatments for their
expendlency and case compared to other altenative. Some of the most common
unnecessary surgical procedure include:
Pcemaker implant
Coronary bypass surgery
Hysterectomy
Ceasearian section
 While there are certainly cases where these surgeries are necessary and save lives,
many times the patients conditions does not warrant such dramatic and invasive
procedures.
Needless surgery
Is often related to a misdiagnosis of patient symptoms or a medical decision without proper
consideration of other options or risks.
Errors in anesthesia
 Anesthesia is the risky part of any major medical operation, and requires a specialist, an
anesthesiologist, to administer and monitor the effect on the patient.
 Anesthesia malpractice can happen either during the pre-operation medical review, or
during the procedure itself.
Childbirthmalpractice
 Childbirth is a difficult event for the new born child, and even worse, if not handled
properly by the doctor and nurses.
 Instances of medical negligence during childbirth can take place in several ways,
including failure to perform a c-section, mishandling of a difficult birth, complications
with induced labor, misdiagnosis of newborn medical condition or failure to monitor
fetal vital signs.
 Any variation from the established medical standard of care is considered to be medical
negligence, and if it leads uncalled-for injury to a patient the doctor, staff and/or hospital may be
held liable.

4. Negligenceinpatient treatmentfollowup
 Once a course of treatment for illness or injury has been chosen, it is critical that the
doctors follow up regularly to keep abreast of the performance of the treatment.
 Often times,a nurse will be called upon to help administer treatment, but is not qualifed
to make medical decisions regarding continuation, cessation or adjustment of the
treatment plan.
 If the doctor orders a treatment and then allows it to go on without regular follow up,
this can be a form of medical negligence.If the treatments causes any side effects or
other damage to the patient, the doctor may be held liable.
Medical Negligence inGeneral
 While medical negligence can occurs in many different ways, the genneral themes is
that a medical professional deviates from the level of care that is required by his or her
duty to patients.
 Any deviation from the accepted medical standards of care is considered to be medical
negligence, and if it causes undue injury to a patient the doctor, staff and / hoapital may
be held liable.
TYPES OF NEGLIGENCE
1. Civil Negligence.
2. Contributory Negligence.
3. Third Party Negligence.
4. Criminal Negligence.
CIVIL NEGLIGENCE
o Failure to exercise reasonable degree of care and skill on part of doctor in the treatment
of and skill on part of doctor in the treatment of patient and as a result, health of patient
and as a result, health of patient suffers. The negligent act must be proved bysuffers. The
negligent act must be proved by claimant.
For example:
 Extraction of healthy teeth.
 Failure to give ATT.
 Failure to take X-Ray in case of injury.
CONTRIBUTORY NEGLIGENCE
 In this, patient also contributes to the damage caused by negligent act of doctor.
 The award of damages will be reduced accordingly.
 Burden damages will be reduced accordingly.
 Burden of proof lies on the doctor of proof lies on the doctor.
For example: Patient tampers with his dressing and induces infection or removes a plaster cast
or ignores instructions to return for further treatment / follow up.
THIRD PARTY NEGLIGENCE
 Negligence of paramedical staff, nurses and students working under supervision of a
doctor.

5.  The doctor is held equally responsible doctor.
 The doctor is held equally responsible by virtue of by virtue of doctrine of “respondent
superior ”doctrine of (let the master answer) or “caption of the ship” now a days .doctrine
of “borrowed servant”
For example: Failure to check swabs, paralysis during
Failure to check swabs, paralysis during spinal anesthesia or failure to check drug and spinal
anesthesia or failure to check drug and its expiry
CRIMINAL NEGLIGENCE
 It is described as gross ignorance, gross carelessness or gross neglect for the life
carelessness or gross neglect for the life which may amount to criminal offence.
 It reflects disregard for life and safety of others. reflects disregard for life and safety of
others. Mere monitory compensation is not sufficient, wrong doer should also be
punished.
 Cases wrong doer should also be punished.
 Cases are dealt in criminal courts.
For example:
o Injecting anesthetic, in fatal dose.
o Amputation of wrong finger, wrong limb, wrong organ.
o Operation on wrong patient.
Elements ofaCause of ActioninNegligence (Malpractice)
1. Duty of Care (towards a plaintiff)
2. Negligent Breach of Duty (on the part of the defendant
3. Causation (between the breach and the harm
4. Damages (injury or harm as a consequence of the breach)
When the Malpractice occurs
Medical malpractice occurs when a health-care provider deviates from the recognized “standard
of care” in the treatment of a patient.
The “standard of care” is defined as what a reasonably prudent medical provider would or would
not have done under the same or similar circumstances. In essence, it boils down to whether the
provider was negligent.
India takes on Consumer ProtectionAct 1986
 After the Consumer Protection Act, 1986, has come into force some patients have filed
legal cases against doctors, have established that the doctors were negligent in their
medical service, and have claimed and received compensation. As a result, a number of
legal decisions have been made on what constitutes negligence and what is required to
prove it.
What Negligence Means to patient
In medical negligence cases it is the duty of the patient or his/her relatives to establish that:
1. There was a duty which the medical practitioner owed to the patient;
2. There was a breach of duty;
3. The breach resulted in injury to the patient;
4. The injury resulted in causing damages.

6. Patients too Should support his/her allegations
 A person who alleges negligent medical malpractice must prove four elements:
(1) a duty of care was owed by the physician;
(2) the physician violated the applicable standard of care;
(3) the person suffered a compensable injury;
and (4) the injury was caused in fact and proximately caused by the substandard conduct.
The burden of proving these elements is on the plaintiff in a malpractice lawsuit.
Tort Law
 Tort = a civil wrong
o Sometimes also considered crimes (intent)
o Governed by state law, common law doctrines
 Designed to prevent harm or compensate for harm to a person
 Primary aim = to provide relief through compensation to injured parties for the
damages incurred

7. Medical Malpractice Lawsuits: How are plaintiffs successful?
A licensed physician attends four years of medical school and completes up to seven
years of residency training to learn how to effectively and safely treat patients. Not only is the
educational process rigorous, but state medical boards closely oversee physicians’ conduct to
prevent harm to patients.
When, despite these systemic protections, patients are harmed, one recourse for an injured
patient is to file a medical malpractice claim.
An injured patient must prove the following four elements to be successful in a medical
malpractice claim:
(1) That the doctor owed the patient a duty of care;
(2) That the doctor breached the duty to provide adequate care owed to the patient;
(3) That the doctor’s action caused the patient’s injury; and
(4) That the patient suffered an injury that resulted in damages
 Doctor-Patient Relationship
The first element an injured patient must prove is that the physician owed a duty to
provide adequate care to the patient. This is established by the existence of a doctor-patient
relationship.
These relationships aren’t necessarily formal, as they don’t require contracts.
In one case, an appeals court reasoned that a physician doesn’t even need to have physical
contact with the patient for a relationship to be established and for the physician to owe the
patient a duty of care. For example, if an ill individual calls a physician on the phone and talks to
him about her symptoms and the physician then recommends a course of treatment, a doctor-
patient relationship has been established because he has taken affirmative action to treat her
illness and prescribe a course of treatment.
 Breach of Duty
Once a doctor-patient relationship exists, the second element is that her doctor breached his duty
to provide adequate care by failing to exercise the degree of care, skill, and learning expected of
a reasonably prudent doctor in the profession to which he belongs.
State laws dictate how courts will determine whether a physician failed to exercise the degree of
care, skill and learning expected of a reasonably prudent doctor. Courts in many jurisdictions
will determine whether one doctor’s actions demonstrated the necessary care and skill by
examining the conduct of other physicians practicing within the borders of that state.
Furthermore, several states provide that physicians must demonstrate the skills of a comparable
specialist rather than those of general practitioners.
Both the plaintiff and defendant may rely on expert testimony. Experts describe what
physicians typically do when treating patients and can shed light on whether one physician’s
conduct was atypical.
In one case, United States, a doctor successfully defended a medical malpractice lawsuit by
proving that he did not breach a duty owed to a patient by only requiring him to undergo one x-
ray for lung pains and coughing. During his defense, he relied on experts who testified that
almost all physicians who treat patients complaining of these symptoms will only prescribe one
x-ray.
 Causation
Third, the patient must establish a causal link between the doctor’s conduct and the
patient’s resulting injury. A medical malpractice case requires both “cause in fact,” which means

8. that the injury would not have occurred “but for” the doctor’s negligence. and “proximate
cause,” meaning that the injury is a foreseeable consequence of the negligent act.
Example a hospital admitted a patient who said he suffered from anxiety and was having
suicidal thoughts. Immediately after admission, doctors placed him on suicide precautions status,
but after an initial consult with a psychiatrist, he was transferred to a less stringent active
observation status, allowing him some freedom of movement to go off hospital grounds. During
one such visit, he committed suicide.
The patient’s widow sued the psychiatrist for medical malpractice and successfully established
that the psychiatrist’s actions were both the cause-in-fact and proximate cause of her husband’s
death. She established cause-in-fact by proving that her husband would not have died “but for”
the psychiatrist’s diagnosis and decision to transfer him to a less closely monitored status. She
also successfully established proximate cause because suicide is a foreseeable consequence of
not actively monitoring a person who exhibits these tendencies.
 Damages
Finally, a patient in a medical malpractice case must prove that her injury resulted in
economic or physical harm.
There are three types of damage awards available in a medical malpractice case:
(1) compensatory damages for economic loss, such as past and future medical costs, out-of-
pocket expenses related to the injury, and lost wages;
(2) non-economic damages for “pain and suffering;” or
(3) punitive damages, which are designed to punish the offending doctor and dissuade other
doctors from making similar mistakes.
Compensatory damages, such as lost wages, can be easily calculated, but non-economic
damages are more difficult to calculate because of their uncertain nature. For example, how can a
hiker who permanently loses her ability to hike and scale mountains due to an orthopedist’s
inadequate treatment of her knee injury receive compensation for her not being able to partake in
her favorite pastime?
While non-economic damages may be difficult to calculate, they account for a significant portion
of the patients’ injury-related damages. Some states, such as California, limit a patient’s ability
to recover non-economic damages.

9. Negligenceduty of care
Duty of Care
o The first consideration is to establish whether the claimant was owed a duty of care by
the defendant.
o The category of duty of care owed
 Traditional Categories (patient/doctor relationship, driver and passenger, driver and
other road users, manufacturer and consumer, lawyer and consumer)
 Novel Cases, not yet categorized then the test for determining duty of care must be
applied, establishing that one or more of the three factors is present. – foresight,
proximity and justice/fairness
o In a negligence lawsuit, the plaintiff must demonstrate the defendant owed him or her
a duty of care—a specific legal obligation to not harm others or their property.
o Duty of care can be highly specific or apply more generally to the public.
Example: each motorist owes everyone a duty of care while driving. • If the court
decides the defendant did not meet his or her duty of care, the defendant can be found
in “breach of duty of care.”
o The Reasonable Person
• When determining if a defendant is in breach of duty of care, the court uses the
“reasonable person test” to determine the level or standard of care that should be
expected.
• A reasonable person is defined as an “ordinary adult” without any disabilities. Although
this person does not actually exist, the reasonable person is thought to be careful and
considerate.
• The definition of a reasonable person may also depend on location.
For example, what is considered reasonable in a rural area may not be so in an urban area
and vice versa.
Youths
• Similar to the Youth Criminal Justice Act, a young person is not judged in the same
manner as an adult for negligence.
• There is no legislation regarding youth and torts in Canada. Courts deal with torts that
involve youth on a case by case basis.
• Children who are 6 or 7 years old are not held liable for any negligent actions.
• However, if youth participate in an adult activity, such as hunting, they are generally
held to an adult’s standard of care.
Foreseeability & Causation
• Part of the reasonable person test involves foreseeability—a person’s ability to
anticipate the specific result of an action.
• If a court decides that a reasonable person should have been able to predict, or foresee,
the injury created, defendant can be found the liable, or in breach of his or her duty of
care.
• Causation occurs when the defendant was in breach and the defendant’s actions
directly led to the plaintiff’s injuries or loss.
Proving Harm or Loss

10. • For a negligence suit to be successful, plaintiffs must prove they suffered real injury or
economic loss. The following questions are asked to prove negligence and harm:
1. Does the defendant owe the plaintiff a duty of care?
2. Did the defendant breach the standard of care?
3. Did the defendant’s actions cause the plaintiff’s injury or loss?
4. Was there a direct connection between the defendant’s actions and the plaintiff’s injury
or loss (causation)? Furthermore, was it foreseeable?
5. Did the plaintiff actually suffer harm or loss?
Burden of Proof
• In a civil trial, the plaintiff is responsible for proving that negligence occurred.
• Similar to a criminal trial and any other civil trial, defendants do not have to actually prove
anything, though many decide to present evidence on their behalf regardless.
• Proof is determined using the balance of probabilities.
• If a plaintiff successfully meets the burden of proof for negligence, it means the court believes
the plaintiff’s version over the defendant’s.
Defences for Negligence
• There are three common defences to negligence:
1. Contributory negligence
2. Voluntary assumption of risk
3. Inevitable accident
The best possible defence to negligence is to argue that no negligent action occurred at all.
1. Contributory Negligence
• If both the plaintiff and defendant are found to be negligent, any damages or blame will be
divided between them.
• Contributory negligence occurs when the alleged victim created at least part of the harm that he
or she ended up suffering.
• This defence is often used in lawsuits involving motor vehicle accidents. For example, if one
driver was speeding and another ran a stop sign, both drivers are negligent.
• Courts use actual percentages to determine responsibility in contributory negligence cases.
 In this, patient also contributes to the damage In this, patient also contributes to the
damage caused by negligent act of doctor.
 The award of caused by negligent act of doctor. The award of damages will be reduced
accordingly.
 Burden damages will be reduced accordingly. Burden of proof lies on the doctor.of proof
lies on the doctor.
 For example: Patient tampers with his dressing and inducesPatient tampers with his
dressing and induces infection or removes a plaster cast or ignoresinfection or removes a
plaster cast or ignores instructions to return for further treatment /instructions to return
for further treatment / follow up.follow up.
What is “contributory negligence”ina Medical Malpracticecase?
When a medical malpractice claim is presented, it is usually a one-sided case because if a
patient brought on a medical malpractice lawsuit, that must mean that the medical professional
was negligent and that they were the cause of the patient’s injuries. While this evidence must
be present in order to file a lawsuit, there are certain medical malpractice cases that can derive

11. from the patient’s own doing, which refers to contributory negligence (contributing to the
negligence).
When a patient can be at fault for their own personal injury, the defense will use contributory
negligence. Even though medical professionals require a high level of care to their patients, the
patient is also responsible for certain matters about their own health. For example, when a
doctor asks a patient about their medical history, the patient has to ensure that they tell their
physician about their full medical history. If they omit anything, that one thing could be the
cause for the doctor prescribing a wrong medication. In that case, the patient would have
contributed to their own harm because the patient did not disclose every aspect of their
medical history. The lack of information provided to the doctor was what caused him or her to
be negligence in their care.
Physicians tend to emphasize the need to learn the full medical history of a patient no matter
how irrelevant the person may think an operation or reaction that they underwent is. When a
patient does not disclose every detail of their medical history, this can not only affect their
future treatment, but it can also be deadly. If a doctor is unaware of a reaction that a patient
has when taking a certain medication, that same doctor could prescribe that medication at a
high dose, unknowingly, and possibility being the cause of the patient’s death. In that case, the
doctor would not be found liable for a wrongful death.
Another great example of contributory negligence is after a patient has undergone a surgery
and the physician instructs them on what they can do and what they cannot do. If the patient
does not follow these rules they can seriously harm themselves. For example, a woman who
undergoes a C-section is instructed to not lift more than the weight of her baby for at least 6
weeks. If the pregnant woman starts lifting her 4-year old son and suddenly has her wound
open which leads to an infection, the doctor would not be found liable for that infection. The
mother has a duty to ensure that she would not lift more weight than her baby.
There is a defendant and a plaintiff in a medical malpractice lawsuit. While more emphasis is
placed on the plaintiff party, the defendant is as equally as important because the plaintiff
could have contributed to their own harm.