Medical Negligence in Tort:

Negligence is simply the failure to exercise due care. It occurs when a doctor fails to perform to the standards of his or her profession. Medical Negligence in tort is the negligence committed by medical healthcare professional. Medical negligence (or medical malpractice) is a specific type of negligence that applies to the conduct of healthcare professionals.

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Vicarious Liability in Medical Negligence:

A doctor or hospital is responsible for the tortuous acts of his subordinates.

Ahaluwaliavs Spring Meadow Hospital Case: Hospital had to pay over 15 lacs as compensation. Injection was wrongly administered to a boy of 1 year by unqualified nurse though no such order was given by doctor.

Burdon of Proof:

Generally on patient alleging negligence.
But shift to the defendant (Doctor or hospital) where no free access to the patient example: OT, ICCU etc.

Examples of Medical Negligence in Tort

Misdiagnosis: Failing to correctly diagnose a condition, leading to incorrect treatment or lack of necessary treatment.
Surgical Errors: Performing surgery on the wrong site, leaving surgical instruments inside the body, or other serious mistakes during surgery.
Medication Errors: Prescribing the wrong medication, incorrect dosage, or failing to account for potential drug interactions.
Birth Injuries: Causing harm to a newborn or mother during childbirth due to negligent care.
Failure to Obtain Informed Consent: Not adequately informing a patient about the risks of a procedure, leading to an uninformed decision by the patient.

Essentials of Medical Negligence in Tort:

Establishment of doctor-patient relationship.
A legal duty of care by doctor towards the patient
Breach of Legal duty
Causation & Damages

Establishment of doctor-patient relationship:

This can either be direct or indirect
This can either be implied or created though a contractual element.
Direct discussion between patient and doctor may not happen.

(Example: anaesthetist of doctor’s choice is also part of relationship though never known to patient)

Only relationship between patient and doctor not sufficient to establish medical negligence.

A legal duty of care by doctor towards the patient

There must be a legal duty of care of doctor towards the patient.
A duty of care includes:
Whether to undertake the case
What treatment to give.
In Administration of the treatment (Proper monitor by staff etc.)

Breach of Legal duty:

Doctor is expected to show a reasonable degree of skill and knowledge
Must exercise reasonable degree of care neither very high nor very low degree of care.
A breach of duty could either act of commission or omission.

How to check whether there was a breach of legal duty?

Bolam Test:

Bolam Test is the test with regard to the negligence of a doctor which was laid down in Bolam V. Friern hospital Committee Bolam Case (1957). This test is also accepted in India, whenever there is a case of medical negligence in India, this is the test which helps the court to identify whether the negligence was there in the act done by the doctor or not. This helps us to identify whether the doctor acted negligently or not? But this test is also criticized due to some reasons that we will discuss in detail.

In Bolam test, if a doctor or medical professional has acted in accordance to the medical practice accepted by a body a medical body skilled in that act, the person cannot be said that he has acted negligently.

Bolam test is accepted in India and was used in Jacob Mathew V. State of Punjab Caseto determine medical negligence of Doctor Mathew.

Causation

The breach of duty directly caused injury or harm to the patient. This involves proving both:

Causation in Fact: The harm would not have occurred “but for” the provider’s actions.
Proximate Cause: The harm was a foreseeable result of the provider’s actions.

Damages

The patient suffered actual harm or loss due to the breach of duty. This can include physical injuries, emotional distress, additional medical expenses, lost income, and other damages.

Option available for the victim:

Can claim damages under civil suit, wherein he can demand for compensation.
Can file a criminal suit under Sec. 304 IPC if the degree of negligence is high, presence of mens rea must be shown in these cases.
Covered under Consumer Protection Act 1986, can file a complaint under this Act.
If Malpractice is going on i.e. any breach of morality ethics of duty in performing professional work then complaint can be filed in Medical council.

Case Laws:

Achutra oHaribhauKhodwa and other v. State of Maharastra: A towel was left in the women cavity, it was a clear case of medical negligence.

VP Shanta and others vs IMA: Medical negligence was treated as service and was included in Consumer Protection Act.

Archana Sharma Suicide Case: In this case, a doctor Archana Sharma was tortured in a medical negligence case and due to which her carrier was ruined and owing to this reason she suicide. This case give the other picture or side of medical negligence wherein the doctors are also getting tortured due to false medical negligence cases.