Man is the only animal who believes in keeping order in his world. This was one of the reasons that he invented the concept of law.
Man is the only animal who believes in keeping order in his world. This was one of the reasons that he invented the concept of law. Law helped every man who suffered from an injury due to the acts committed by others, to seek remedy by means of compensation or punishment to the person committing that act. It was in this time that the field of medicine was developing. Since no man is perfect in this world, it is evident that a person who is skilled and has knowledge over a particular subject can also commit mistakes during his practice. Such mistakes in the medical profession may lead to minor injuries or some serious kinds of injuries and sometimes these kinds of mistakes may even cause death. In such situations there arises a need for a remedy to the injured people so that justice is upheld and this gave rise to the concept of medical negligence.
Professional negligence, more specifically, medical negligence is, as the term suggests, relates to the medical profession and is the result of some irregular conduct on the part of any member of the profession or related service in discharge of professional duties. But first of all it is essential for us to analyze what the terms remedy, legal right, legal duty and most importantly negligence mean.
Negligence is the breach of a legal duty to care. Thus legal duty of a person means the duty the law gives to every person to respect the legal rights of the other. Therefore the legal right of a person can be defined as the provisions provided by law to protect the interests of its citizen. We must remember then that where there is a legal right, there is a legal remedy for it. This is inferred from the maxim “ubi jus ibi remedium”.
Medical negligence can be seen in various fields like when reasonable care is not taken during operations, during the diagnosis, during delivery of the child, with issues dealing with anesthesia etc. Since this field is very vast we will limit ourselves in understanding the basic concepts which are essential for the negligence to be committed. We shall also look into the remedies that the law provides to these patients and on whom the burden of proof lies and when this burden of proof shifts to the other party. We would also be discussing in the following pages the defenses used by doctors to rescue themselves from the liability and also compare all these things with the English law and also look into the similarities that the Indian law and English law share.
