4. Ingredients
• Duty to act or not to act
• Breach of duty
• Breach has resulted into a damage
Scope of Medical Negligence
5. 1.Care of Patient
• Presumption
• Agreement or implied contract between doctor
and patient --- Responsibility to treat
• Situations
1. Private practice
2. Government employment / others
3. Emergency room
• Termination of duty
Duties of a doctor
6. 2. Duty to respond in emergency /
night calls
• Personal or family physician
Duties of a doctor
7. 3. Possession of skill and knowledge
required to treat patient
1. Commensurate with his claim
2. General practitioner / specialist
3. Situations encountered by junior doctors while
rendering specialist treatment
• When expert / specialist advice available
• When expert / specialist advice not available
Duties of a doctor
8. 4. Duty to show skill and care
5. Duty to keep himself abreast with
recent advances in techniques /
procedures and knowledge about
drugs
6. Duty to obtain informed consent
7. Duty to maintain professional
secrecy
Duties of a doctor
9. Arises by virtue of ethical standards accepted in
the medical profession
Three principles:
1. No disclosure
2. Partial disclosure
3. Complete disclosure
Professional Secrecy
10. Privilege Communication
Arises by virtue of legislatively created protections.
Sometimes the public duty overcomes the
professional duty and professional secrecy can not be
maintained.
Communications made in these situations are called
privilege communication
11. Breach of duty is protected if certain conditions are
observed
• Not malicious
• In good faith
• To a party having duty to receive it
Qualified Privilege
12. Professional dictates are ignored in Toto as all
courts enjoy absolute privilege over all secrets
involved between doctor and patient
Nothing said in these circumstances can be used
for any action liable or slender
Absolute Privilege
13. Professional Confidence
may be broken
• With consent of the patient
• As a statuary duty laid down by law
• By order of the Court / Parliament
• In the larger interest of the community
14. No statuary definition
Chief Justice Lord Tindal 1838 – Doctor, who
has a relationship of professional attendance
with a patient, undertakes to practice his
profession with a reasonable degree of care and
skill and when he fails in this respect, he may
have shown professional negligence
Professional Negligence
16. Five elements of common law “Tort”— Civil
Wrong
1. Plaintiff’s right to be free from illness
(physical / mental)
2. Defendant’s duty to plaintiff to conform to a
standard
3. Breach of this duty
4. Breach resulting into damage to plaintiff
5. Determination of damage in terms of money
Ingredients to be proved
for medical negligence
17. 1. Integrity of his person or part affected
2. Doctor owe a duty of care to patient
3. Doctor was in breach of duty by his negligent
act
4. Breach has caused patient to suffer damage
5. Patient proves the loss / damage in terms of
money
Patient has to Prove
18. Doctrine of common law of negligence – “Thing speak
for itself”
• Patient has in no way contributed to his
own injury
• Instrument causing injury was in sole
control of doctor
• Damage would not have occurred in the
absence of negligence
Res-ipsa-loquitur
19. Situation in our country
Implicit loyalty of patient to doctor hence no
claim for damages – Doubles the
responsibility
21. Reckless, wicked attitude showing
complete disregard for the safety of the
patient’s life culminating into his death
“Manslaughter”
Criminal Negligence
23. • Extraction of wrong / healthy tooth
• Amputation of wrong / healthy limb
• Failure to give anti-tetanus vaccine
following injury causing disease to the
patient
• Failure to x ray the fractured part
Malpraxis
25. Paramedic’s
“Master-Servant Doctrine”
“Doctrine of “Respondent Superior” or
“Captain Ship theory”
“Vicarious liability” – Liability without direct
fault
“Borrowed Servant Doctrine”
Third Party Negligence
26. • Doctrine of “informed consent”
• Doctrine of “volunti-non-fit-injuria” -- Assumption of
risk – Patient insists upon the course of treatment in
spite of the fact that doctor was reluctant
• Negligence of third party
• Contributory negligence or Delegation of duties
(patient’s share of responsibility)
Defense against
Allegations of Negligence
