MEDICAL NEGLIGENCE – A specific TORT by VANDANA YADAV

Medical Negligence: A Specific Tort
The Concept Of Negligence
Negligence implies absence of intention to cause the harm complained of. It means careless or unreasonable conduct. But merely unreasonable conduct without damage is not actionable though it may be a punishable offence. Such conduct when followed can cause harm to another gives rise to liability for negligence. It may be pointed out that negligence may mean a mental element in tortuous liability or it may mean an independent tort.

The Concept of Medical Negligence
Every person who enters into a particular profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He requires a particular level of learning to be a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. A medical professional does not assure his patient of the result.

A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what all, the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in the given case, the skill which he did possess.A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Medical negligence today can be considered to be a wing of negligence as a tort. With the growing number of cases of medical negligence, it has acquired itself attention of the lawmakers. Recently there has been a major increase in the cases of gross medical negligence which calls for some immediate strict laws to be made in this regard.

The Concept of Res Ipsa Loquitor
The maxim is not a principle of liability but a rule of evidence. It means that a thing speaks for itself, i.e., the facts and circumstances which the plaintiff has proved established a prima facie case of negligence against the defendant. The requirement is that mere happening of the accident should tell its own story and raise the inference of negligence on the part of the defendant.
The doctor has discretion in choosing the treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. The doctor “must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”
The maxim res ipsa loquitor acts as a rescuer for the complainant by easing their burden of proving the negligence of the doctor of the hospital authorities in the cases of gross negligence which is manifest in the very act of the doctor itself. It is a relief for the patients who have been a subject of such gross negligence.

The Bolam Test
Under the English Law as laid down in Bolam v. Friern Hospital Management Committee, a doctor, who acts in accordance with a practice accepted as proper by a responsible body of medical men, is not negligent merely because there is a body of opinion that takes a contrary view. The above test laid down by Mc Nair, J has been repeatedly approved by the House of the Lords. The test covers the entire field of liability of a doctor namely liability in respect of diagnosis; liability in respect of a doctor’s duty to warn his patients of risks inherent in treatment, liability in respect of operating upon or giving treatment involving physical force to a patient who is unable to give his consent; and liability in respect of treatment.

The degree of skill and care required by a medical practitioner as explained in Halsbury’s Law of England is:
When a doctor attends to his patient, he owes him certain duties of care like;
1. A duty of care in deciding whether to undertake this case.
2. A duty of care in deciding what treatment to give.
3. A duty of care in the administrating that treatment properly.

A breach of any of these duties gives a right of action for negligence to the patient. A breach of duty is committed by a doctor when he does not perform the standard and degree of care like reasonable doctor of his time or as a member of his class.

Cases of Incapability of Patient Of Giving Consent
At common law, a doctor cannot lawfully operate on adult persons of sound mind or give them any treatment involving the application of physical force without their consent or otherwise he would be liable for the tort of trespass. But when a patient is incapable, for one reason for another, of giving his consent, a doctor can lawfully operate upon or give other treatment provided that the operation or the other treatment concerned is in the best interests of the patient if it is carried out in order to either save his life or to ensure improvement or prevent deterioration in his physical or mental health. The test here also in determining liability would be whether the doctor acted in accordance with the practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of the treatment. Prior consent or approval of the court for giving the treatment is not necessary. But in cases of a patient of unsound mind, the court may entertain a petition for declaration that the proposed operation or the treatment on the patient may be lawfully performed.
Fulfillment of Burden Of Proof – Whose Duty
In a suit for damages against a doctor the onus of proof is upon the plaintiff to prove that the doctor was negligent and that his negligence caused the injury of which the plaintiff complained.
Conclusion
Medical negligence cannot be a considered to be simply a plain category of tort. Medical negligence changes its form, from a simple tort whereby a person is given a wrong treatment and may vomit due to that to a dangerous life harming tort whereby the patient loses his life due to a simple injury of fracture. Medical negligence calls for a comparative high degree of care which is expected from a doctor of a reasonable degree. The standard of care is not of an ordinary prudent man but of an ordinary prudent doctor who belongs to that category to which the doctor belong who is to be judged by that standard.

MEDICAL NEGLIGENCE – A SPECIFIC TORT by VANDANA YADAV at LEXCLIQ

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