A brief presentation on negligence and its defences

1. Medical negligence and its defense
• Dr. Mahender Singh
Resident

2. PROFESSIONAL
NEGLIGENCE
(Malpraxis)
• It is the failure to execute reasonable
degree of skill and care or willful
negligence of a medical practitioner which
causes some harm or bodily injury or death
of a patient.
• Negligence may be act of omission i.e. not
doing something that a reasonable man
under the circumstances would do or Act of
commission i.e. Doing something a
reasonable man would not do.
• Medical negligence is a part of the law of
torts. A tort is a civil wrong for which the
sufferer can seek compensation through
legal action.

3. Types of
Professional
Negligence 1. Civil
2. Criminal

4. Others:
Contributory
negligence
Composite
negligence
Corporate
negligence

5. Civil negligence
• Question of civil negligence arises:
• A. when a patient, or in case of his
death, any relative brings suit in a
civil court for getting compensation
from his doctor, if he has suffered
injury due to negligence.
• B. When a doctor brings a civil suit
for the realization of his fees from
the patient or his relatives, who
refuse to pay the same, alleging
professional negligence.

6. CIVIL
NEGLIGENCE
Elements of
Negligence:-
• Duty
• Dereliction
• Direct causation
• Damage

7. • Duty: Existence of a duty of care by his doctor
• Dereliction: The failure on the part of the doctor to
maintain applicable standard of care and skill.
• Direct Causation: The failure to execute a duty of
care must lead to a damage. The patient must
show that a reasonably close and casual
connection exists between the negligent act or
omission and the resulting injury without any
intervening cause. This is referred as Legal cause
or proximate cause.
• Damage: The damage should be of type that
would have been foreseen by a reasonable
physician.

8. Amount of damage done Is a measure of the extent
of the liability
Loss of earning, either due to absence from work or prevention or
impairment of his ability to carry out his occupation.
Medical expenses including medical rehabilitation, vocational
rehabilitation, retraining or other incidental expenses like transportation ,
additional surgical procedures, daily nursing care and medications for a
severely brain damaged baby for the remainder of baby’s life.
Reduction in expectation of life.
Reduced enjoyment of life, such as loss of function of limb or sense

9. Pain and suffering, either physical and mental. Suffering
includes fright, humiliation, mental anguish, grief and
embarrassment.
Loss of potency
Aggravation of a preexisting condition.
Death

10. Criminal negligence
• The question of criminal negligence may arise:
• (1) When a doctor shows gross absence of skill or care during treatment
resulting in serious injury to or death of the patient, by acts of omission or
commission.
• (2) When a doctor performs an illegal act.
• (3) When an assaulted person dies, the defence may attribute the death
to the negligence or undue interference in the treatment of the deceased
by the doctor.

11. Cont..
• Cases of criminal negligence can be classified as follows:
• A. When no injury to patient occurs (S. 336 IPC)
• B. When injury occurs to the patient
• B(i) When hurt is caused to the patient(S. 337 IPC)
• B(ii) When grievous hurt is caused to the patient( S. 338
IPC)

12. CIVIL NEGLIGENCE CRIMINAL NEGLIGENCE
1. Lack of reasonable care and skill in
the professional behaviour.
2. A dispute between two parties in
their individual capacity.
3. The injured party has an option to
sue specific person or those falling
in the chain of events.
4. There can be no civil action for
negligence if the negligent act or
omission has not been attended by
an injury/harm/damage to the
patient.
1.Gross carelessness and scant regard for
patient’s welfare.
2. A case between the State and the accused
doctor.
3. Every person is responsible for his own
act. And, there must be some personal act.
4. Bare negligence involving the risk of
injury is punishable criminally, though
nobody is actually hurt.

13. CIVIL NEGLIGENCE CRIMINAL NEGLIGENCE
5. Contributory negligence can be
cited as a defence.
6. The standard of proof rests upon
the balance of probabilities, i.e.
was it more likely than not that
the condition/damage/harm was
caused by negligence rather than
by some complication.
7. Accused doctor is liable to pay
damages.
5. Contributory negligence does not
constitute defence.
6. The standard of proof requires
establishment of guilt ‘beyond reasonable
doubt’.
7. Accused doctor is punishable with
imprisonment or fine or both as per
provisions of the IPC.

14. Contributory Negligence
• Is any unreasonable conduct, or absence of ordinary care on the part of
patient or his personal attendant, which combined with the doctor's
negligence, contributed to injury complained of , as a direct, proximate
cause and without which injury would not have occurred.
• Proximate cause means , that which in natural and continuous
sequences, unbroken by any efficient intervening cause produces the
injury, and without which the result would not have occurred.
• It a good defense in civil cases but cannot be taken as a defense in
criminal cases.

15. Example of contributory Negligence
Ex: (i) Patient does not give correct history
(ii) Starts an alternative form of treatment without informing
doctor
(iii) Does not follow doctor's instructions.
(iv) Discontinues the suggested treatment.
(v) Refuses to take treatment
(vi) LAMA

16. • LIMITATIONS TO CONTRIBUTORY NEGLIGENCE :
• (a) THE LAST CLEAR CHANCE DOCTRINE : Under this rule, a person
who has negligently placed himself in a position of danger may recover
damages, if the doctor discovered the danger while there was stilI time to
avoid the injury or failed to do so.
• (b) THE AVOIDABLE CONSEQUENCES RULE: This is applicable where
the negligence of the injured person occurs after that of the doctor being
sued and increases the severity of injury. In such cases, the patient is not
guilty of contributory negligence, since his actions were not a cause of the
injury.
• CASE: A surgeon was sued for not removing a swab from the vagina of
patient. The patient complained about pain in the vagina to a nurse some
time after the operation. The nurse examined the vagina and removed the
swab. The patient did not inform the surgeon about the swab in the vagina.
The Court held that the doctor was guilty of contributory negligence.

17. Composite negligence
• Is said to occur, when a patient suffers injury as a result of the
combined negligence of two or more doctors.
• Salient features:
• 1. Damages are not distributed: only the total sum is awarded. It’s
the sufferer who, if he wishes, can even claim all the damages
from a single person.
• 2. If a specialist feels he has been asked to pay more than justified
, he can claim contribution from other specialists.

18. Corporate Negligence
• Negligence of a hospital.
• The individual doctor may or may not necessarily be liable in this
case.
• Ex. 1. Hospital uses defective or poorly maintained equipment or
drugs.
• 2. Selects or retains incompetent employees
• 3. Doesn’t keep oxygen cylinders in ICU
• 4. Does not maintain sterile OT.

19. Instances of
medical
negligence
• 1. When patient makes a request to
doctor
• 2. In doctor’s clinic
• 3. Special tests and consultations
• 4. Before patient leaves clinic
• 5. Admitted patients
• 6. During operation
• 7. Post operative, post discharge
• 8. Preventive
• 9. General

20. Test for Medical
Negligence
• Bolam Test

21. Important
Terms related
to negligence 1. Vicarious Liability
2. Borrowed servant
doctrine
3. Res Ipsa Loquitor

22. Vicarious liability
• Liability for act of another
Conditions to be satisfied:
A. There must be an employer employee relationship
B. The employee’s conduct must occur within scope of his
employment.
C. While on his Job

23. Borrowed servant doctrine
• Lending employer temporarily surrenders control over his
worker and the borrowing employer temporarily takes over
the control.

24. Res Ipsa Loquitor
• Means the thing or facts speaks for itself.
• The patient has to merely state what according to him was an act of
negligence.
• Conditions to be satisfied:
1. That in 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.
This doctrine applied to both criminal as well as civil negligence.

25. Defenses
against
negligence
1. Actual Denial
2. Calculated risk doctrine
3. Contributory negligence
4. Emergency
5. Law of limitation/ Res Indicata
6. Medical misadventure
7. No duty owed towards the
patient
8. Novus actus interveniens
9. Res Judicata
10. Volenti non fit injuria

26. SUPREME COURT OF INDIA GUIDELINES ON MEDICAL
NEGLIGENCE
The Court collated a 11-point guidelines for the courts to adjudicate
complaints against doctors. They are :
(1) Negligence is a breach of duty or an act which a prudent and reasonable
man will not do.
(2) Negligence to be established by the prosecution must be culpable or
gross and not merely based upon an error of judgment.
(3) Medical professional is expected to bring a reasonable degree of skill
and knowledge along with a reasonable degree of care but neither the
highest nor the lowest degree of care and competence.

27. Contd..
(4) A doctor would be liable only where his conduct fell below
the standard of a reasonably competent practitioner.
(5) Difference of opinion cannot be cited as negligence.
(6) Just because a professional looking at the gravity of illness
had taken a higher element of risk to redeem the patient out of
his suffering which did not yield the desired result, it may not
amount to negligence.
(7) Merely because a doctor chooses one course of action in
preference to the other one available, he would not be liable if
the action chosen by him was acceptable to the medical
profession.

28. • 8) it would not be conducive to the efficiency of the medical profession if no
doctor could administer medicine without a halter round his neck.
• (9) It is our duty not to harass or humiliate medical professionals unnecessarily
so as to allow them to perform their duties without fear and apprehension.
• (10) Doctors at times have to be saved from such class complaints who use
criminal process as a tool for pressurising them or hospitals and clinks for
extracting uncalled for compensation.
• (11) Doctors are entitled to get protection so long as they perform their duties
with reasonable skill and competence and in the interest of the patients.

29. According to the guidelines of supreme court of India:
• (I) A private complaint against a doctor may not be entertained unless the
complainant has produced prima facie evidence before the court in the
form of credible opinion given by another competent doctor to support the
charge of rashness or negligence.
• (2) The investigating officer before proceeding against the doctor accused
of rash or negligent act, should obtain an independent medical opinion
preferably from a doctor in government service. A doctor accused of
rashness or negligence might not be arrested routinely, unless his arrest is
necessary for furthering investigation or for collecting evidence or the I.O
is satisfied that the doctor would not make himself available to face
prosecution.

30. • Thank you