Tsher

94Lsols

CONTRACTUAL AND CRIMINAL

LLABILITYFORPROFESSIONAL NEGLIGENCE: TORTIOUS,
their
professional fails
t0 perforn
is when a
h e detinmtion of professional negligence This poor
conduct

to the required standard or duty of care.

brcaches a
o r customer.
Sposibilities of their elient
Sbsequcntly results in a finaneial loss. physical damage or injury

considered t0 have
Claim of professional negligence can be made against anyone
A consultant, a
technology or management
pertise in the services they provide; for example, a
that the service
there must be evidence
For the claim to be successful
o c t o r . surveyor, etc. consequences
resulting in negative
proVIded fell below the standards of their profession,

WHAT IS MEDICAL NEGLIGENCE?

let us understand what is

efore going into the details of what is "Medical Negligence"
Negligence" as a term.

when he says someone has been

What exactly does one mean
So. what is negligence?
negiigent?

EGLIGENCE
not to do something under
egligence be termed as an omission to do something or
can

certain circumstances which an ordinary

man having reasonable prudence would do.

to avoid of Care which should have been taken

a Duty
n other words, "Negligence" mcans
not take care or to
work. In simpler words "Negligence would mean to
while discharging the
behave irresponsibly.
What may not be negligence to me, might
The "Negligence" is far too broad to explain. circumstantial
term
in nature and depends upon
is
be negligence to you and vice versa. Negligence
season and *X" does not lock the windows before
the situation. For example: If it is a rainy
would be held to be
result of which his bed gets wet. "X"
going out of the house as
a
windows. However, under the
shown a duty of care to close the
negligent as he shouid have termed negligent.
summer cday, *X" would not be
same circumstances had it been a dry

let us
that wve have aderstood the concept of Negligence
Having said that and now
must be
understand what constitutes Negligence.
So, to say what are the factors which
to a conclusi0n of an act of negiigence.
taken into consideration before coming

consideration of these
constitute negligence. lt is upon the
There are 5 basic elements that not. The
decide whether an act includes negligence or
elements that one can conciusively
elements have been discussed below.

. Duty to take care

towards the plaintiff. If

whether or not the defendant owed a duty
Negligence depends upon
there was no duty there cannot be Negiigence.
 take care of its patient and as such is
1 Case of Duty
Doctors. every doctor has a to

subject to being negligent if he fails to do so.

There should be a Breach of Duty

breach of duty one means to

g e n c e cannot be determined without a breach of duty. By he Was
not do something which
Omething which he was not supposed to do or to
if it had not been him then. any
Supposed to do under the given circumstances which.
Teasonabie man having ordinary prudence would do.

of his
Doctor should be aware duty and should discharge the
in case of Doctors, every
would not be taken in the ordinary
a m e in similar manner. Any deviation which
course of action| shall be held to be breach of such duty.

two different
However, it must be stated that If a particular patient can be treated in
and
follows such mode of treatment with due diligence
ways and a particular doctor
such a case the doctor shall not
standard of care and even thcn. the patient suffers. |In
be held liable for choosing option 2 over option 1

Cause in Fact

order to prove the negligence, the plaintiff

This is the traditional rule of negligence that. in
in nature is the
detendant which is said to be negligent
uch prove that the action of the action not been taken. the
such
dfual c a u s e or the cause in fact
for the plaintift's injury. Had
1s directly related to the
That such injury
would never have suffered such injury.
plaintrtt
defendant's act

action
must be able to prove
that the action or course of
In of Doctors, the plaintiff he she has
reason for which
case or
o r medication of such patient was the
for the treatment the Doctor shall not
fails to establish the same.
However. if the plaintiff
suffered injury.
be held liable for negligence.

Establishment of Proximate Cause

in a negiigent case The
defendant's responsibility
to the of the scope of a
extent cause of them
This reiates
acts and the proximate
tor his negligent
etendant is only and only
respons1ble nature
connectIon with
such act of negligent
in direct
hich r u l d inyure
the plaintitt suttered by he
be held liable only for those damages
shall
Furthermore. the detendant suttered by the plaint:tr
the detendant. Any damage
antitt hich e T e toreseeable by be proved is i
which the defendant could
have toreseen cannot
a i e the scope of the risks

act of the
the negligent
of Doctors, the 9nus is un the piainiff to prove that should bave
Tn case him. Such eause

Aefendant has proximate cause in

the injury suffered by
ETE Yorrereaible ihy the
defendant while diseharging his duty.
 D a g e s Caused important
cssential and most
It is an to
be provcd. the plaintiff
is not enough by
must
negligece.
Damage It
be proved. In fact,
In order to prove which ncgligence c a n n o t to prove
negligencc.
without reasonable care actual
clement, not take result in s o m e
d e l e n d a n t did must
that the of the
defendant
of
merely prove on the part defendant owed
such duty
reasonable care
a v o d n c e of to whom the
such
BodyProperty of a person
or
to either
damage
carc.
harm o r physical injury
be showed as bodily is
damage must defendant which
of Doctors, the act done by the
In of s o m e negligent
case
was
as a result and the same
plaintiff
suffered by the plaintiff
suffered by the
connection with the injury
in direct
the defendant.
toresecable by
to say:
it would be appropriate
To sum up trom the above,
Practitioner who happens to owe a duty of
Doctor/Medical
"Medical Negligence" is when a misconduct or negligent act,
as

towards his Patient, breaches the same by way of some nature,

care of physical
which the Patient has suffered
damages/injuries which are
aresult of foreseeable.
caused thereof were
proximate cause and such damages/injuries
which establish

NEGLIGENCE:
DOCTORSLIABILITY IN MEDICAL
the acts done in the
are both jointly
and severely liable for
It is needless to say that Doctors then they should be
which if the patient is the ultimate sufferer
theatre as a result of
operation
scrutinized for the samne.
penalized and
negligence under
one
such
not easy to pack
of such service it was the
Looking at the complexity a variety of options whereby
tab. Therefore, the courts have opened
head or one
relief.
can get the
aggrieved persons

classified into 3 heads.

doctor is broadly
The liability of a
1) Tortious Liability
2) Contractual Liability
3) Criminal Liability.

TORTIOUS LIABILITY

Consumer
The Law of Tort starts
from the point where The
fact that
It is again well stated
-

Protection Act ends.

are also
medical practitioners who give free service to the patients
Under The Law of Tort, services
found guilty of negligence. Those
and subject to liability if
brought under the cover do not fall under the meaning of
medical practitioners which
provided by doctors or Consumer Protection Act, 1986
have all the liberty to take
Service" as defined in The the
The Law of Tort and can claim compensation. However,
recourse [if aggrieved]
under
has to prove the negligence of the Doctor.
onus is on the Patient and it is he who
of proof
 CONTRACTUAL LIABILITY/SERVICE LIABILITY

term "Service" as specified under

Doctor is restricted to
the meaning of the
The liability of a
Protection Act, 1986.
the Consumer
a Doctor to its patient
comes

been discussed above, the services provided by in

As it has already Service". However, such
contracts are personal
of "Contract for
under the ambit and scope service. Therefore, bringing the
be treated as a contract for personal
nature but still cannot it
of Consumer Protection Act, 1986. Having that said
the scope
services ofa Doctor under ambit of
that a "Contract for Service" is beyond
the scope and
should also be mentioned here
Section 2(1)(o) of the said Act.

any doctor shall not be allowed to

Therefore, any patient who has been treated free of cost by
there consideration. Even if there was a nominal
sue the doctor for being negligent as was no

for the it is disallowed to get relief here.

registration charge same a

CRIMINAL LIABILITY

Under certain circumstances a Doctor can also be held Criminally Liable for his acts.
Criminal Liability is attracted in cases of [Gross Negligence, or Recklessness].

The Doctors can be punished under the following provisions of The Indian Penal Code,
1860

Under Section 304A [IPC| - For causing death of a patient by rash or negligent
act.

U n d e r Sections 319 to 338 For Causing Hurt/Grievous Hurt/Miscarriage etc.

Doctor cannot be brought about so easily as the

However, criminal proceedings against a
in and out on a daily
are the professionals who work
judiciary finds it fit to state that Doctors them
such they can never have such intentions to hurt
basis to give life to their patients and as
their death. The Doctors are presumed to be
leave apart killing them or being the cause of
in
good faith in the best of the interest of their patients. As
bona fide who are always acting
entitled to certain immunity from criminal proceedings under the following
such they are

sections of The Indian Penal Code, 1860

Sections87 to 92 of the Code provide immunity to those doctors who have acted in good
faith must be proved as and
faith for the benefit of the patient. However, such good
when required.

LIABILITY OF HOSPITALS

Doctor/Doctors.
When wetalk about medical negligence, we do not only mean negligence by
It sometimes may also happen that the Hospitals are responsible for negligence as a result of
which the patient could not be treated properly.

The liability of the Hospitals can be

 Dircct where there is a delicieney of service
by the Hospital during the course
of the
treatment, as such making it unfit for treatment. OR

Vicarious
L1ability of the Hospital [Employer) for the wrongful
Employee] who are working for the Employer [Hospital).
acts of its workers

The latin maxims *qui facit per alium facit per se" and "respondent superior" shall be
applicable here which means

guifacit _per alium fucit per se" - He who acis through another does the act himseli_
"respondent superior Letthe nnaster answer.
Some conditions where the Hospitals are directly liable are given below:

1. Improper maintenance of Hospital

2 Not being able to provide safe and healthy environment

3. False elaims of available facilities, malfunctioning equipment's, incompetent staff,

deficiency in service, malpractice etc.

with the regulations of The Medical

Improper maintenance of records by not complying
Council of India Regulations, 2002.

CONCLUSION

massive growth and awareness relating

to
In the recent the Indian society has seen a
times, the
the most noble of all
Medical Profession is seen to be
the rights of a patient. The
the world as it is only after
GOD that a Doctor can give a new life to a Patient.
professions in human as
a Doctor is as much a
"God is unerring". But in reality,
As the known idiom goes the s a m e "to e r r is human". Hence, they
we are and again
as this idiom very truly justifies

will commit mistakes.

rate of 400%!!!!! In the

have increased by an astounding
The cases of medical negligence
India.
past few years in
lost its license for declaring an alive new-
Hospital, Shalimar Bagh,
In the c a s e of Delhi Max
born child to be stillborn.

the death of a 7-year old girl who

suffered
Fortis Memorial Research Institute for
Gurgaon's in India in
the issue of rampant medical negligence
from dengue, have once again brought up
private and public hospitals.
for the
become a dire need to establish standards of practice
In the light of the above it has
same. It is very complex to determine how do you hold a
Doctors and also safeguard the from the
is doing his best to save you
responsible for your losses when he himself
person
same.
Having said that the law in force has tried to keep both the interests of the doctors and the
patients very wcll-defincd compromising none when it comes to litigation. On one hand it
gives the Patients the right to sue a doctor for its
wrongful acts and on the other hand it also
immune's a Doctor knowing well that his act is a humane once
natures going to the extent of
relating to the most complex of
"bringing one back from the dead". Nevertheless, they are
humans who are bound to make mistakes and as such tlhe
provisions should not be too harsh
on them only because they belong o certain
a
prolession.