PROFESSIONAL

NEGLIGENCE
PROFESSIONAL
NEGLIGENCE = MALPRAXIS
Professional negligence is defined as absence of
reasonable care and skill, or wilful negligence of a
medical practitioner in the treatment of a patient,
which causes bodily injury or death of the patient.
TYPES:
(1) Civil
(2) Criminal
(3) Corporate
(4) Contributory
 CIVIL NEGLIGENCE
• When a patient, or in case of death, any relative brings suit in a civil
Court for getting compensation from his doctor, if he has suffered
injury due to negligence.
• When a doctor brings a civil suit for getting his fees from the
patient or his relatives, who refuse to pay the same alleging
professional negligence.
ELEMENTS OF NEGLIGENCE: (4D’s)
1.Duty-existance of duty of care by the doctor
2.Dereliction-failure on the part of doctor to maintain applicable
standard of care and skill
3.Direct causation- any damage was caused by breach of duty
4.Damage – lost wages, medical expenses and mental duress
BURDEN OF PROOF
The patient should prove all four elements of negligence by a
preponderance of the evidence.
LIABILITY
The amount of damage done is a measure of the extent of the
liability.
E.g.:
• Loss of earning
• Medical expenses
• Pain and suffering
• Loss of potency
• Aggravation of a pre-existing condition
• Death
A DOCTOR IS NOT LIABLE :
(1) If he exercises reasonable care and skill
(2) For an error of judgement or of diagnosis
(3) For failure to cure or for bad result that may follow, if he has
exercised reasonable care and skill.
THE LAW CONSIDERS THE
DOCTOR NEGLIGENT ONLY
WHEN:
(1) he did not consider the possibility that such a complication
might occur
(2) that he failed to watch for it carefully or to recognise it
promptly
(3) that he failed to treat in a timely and appropriate fashion.
THE DOCTRINE OF RES IPSA
LOQUITUR
“the thing or fact speaks for itself”
The patient has to merely state what according
to him was the act of negligence .
Conditions to be satisfied:
(1) that in the absence of negligence the injury
would not have occurred ordinarily
(2) that the doctor had exclusive control over
the injury producing instrument or treatment
(3) that the patient was not guilty of
contributory negligence.
EXAMPLES:
• Prescribing an overdose of medicine producing ill-effects.
• Burns from application of hot water bottles or from X-ray
therapy.
• Breaking of needles.
• Failure to remove the swabs during operation which may
lead to complications or cause death.
• Blood transfusion misadventure.
INTERVENIENS
(An unrelated action intervening)
A person is responsible not only for his actions, but also for the
logical consequences of those actions. This principle applies to
cases of assault and accidental injury..
E.g.:
 leaving of a swab or a surgical instrument in the abdomen
after he repair of an internal injury
 accidental substitution of a poisonous drug for therapeutic
drug, etc.
CONTRIBUTORY
NEGLIGENCE
Contributory negligence is any unreasonable conduct,
or absence of ordinary care on the part of the patient, or his
personal attendant, which combined with the doctor's
negligence, contributed to the injury complained of, as a
direct, proximate cause and without which the injury would not
have occurred.

THESE INCLUDE:
(1) failure to give the doctor accurate medical history.
(2) failure to cooperate with his doctor in carrying out all reasonable
and proper instructions
(3) refusal to take the suggested treatment
(4) leaving the hospital against the doctor's advice
(5) failure to seek further medical assistance if symptoms persist.
 BURDEN OF PROOF:
lies entirely on the doctor.
LIMITATIONS TO CONTRIBUTORY
NEGLIGENCE:
• LAST CLEAR CHANCE DOCTRINE :
If the doctor fails to prevent damage resulting from the
negligent act of the patient, even after getting clear time, he
cannot plead contributory negligence in civil cases.
• AVOIDABLE CONSEQUENCES RULE :
It is the negligence of the patient which aggravated the
damage already caused by negligence of the doctor. which
could have been avoided if the patient was not negligent
afterwards. In such case the doctor cannot plead contributory
negligence in civil cases.
 CRIMINAL
NEGLIGENCE
• When a doctor shows gross absence of skill or care during
treatment resulting in serious injury to or death of the patient,
by acts of omission or commission.
• When a doctor performs an illegal act.
NOTE:
For this, he/she may be prosecuted in criminal court for having
caused injury to or death of the patient by a rash and negligent act
shall be punished with imprisonment up to 2 years, or with fine, or
with both".
 CONDITIONS TO BE
SATISFIED:
(1) indifference to an obvious risk of injury to health
(2) actual foresight of the risk, but continuation of the same treatment
(3) appreciation of the risk and intention to avoid it, but showing high
degree of negligence in the attempted avoidance
NOTE:
A physician may be liable to both civil and criminal negligence
by a single professional act, e.g., if a physician performs an
unauthorised operation on a patient, he may be sued in civil Court for
damages and prosecuted in criminal Court for assault.
 EXAMPLES:
• Amputation of wrong finger or operation on wrong limb or wrong patient.
• Leaving instruments, tubes, sponges or swabs in abdomen.
• Gross mismanagement of the delivery of woman especially by a doctor
under the influence of drink or drugs.
• Performing criminal abortion.
 CORPORATE
NEGLIGENCE
 Involves hospitals and their staff physicians.
 Hospitals have independent duty to their patients to
investigate adequacy and review the competence of staff
physicians.
 Here the treating doctor and also other category of persons
who were negligent will be held responsible.
Examples:
1) When the hospital provides defective equipment or drugs
2) selects or retains incompetent employees
3) fails in some other manner to meet the accepted standard
of care, and such failure results in injury to a patient to
whom the hospital owes a duty.
ETHICAL NEGLIGENCE
 Ethical negligence is the violation of the Code of
Medical Ethics.
 In this, no financial compensation is payable
unless there is also civil negligence.
 If a complaint is made and the facts proved, the
name of the doctor may be erased from the
Medical Register.
 Actions are taken by the medical councils.
MEDICAL NEGLIGENCE
PREVENTION
• Obtain informed consent of the patient
• Establish good rapport (relationship or communication) with
the patient.
• Keep full and accurate and legible medical records.
• Employ ordinary skill and care at all times.
• Confirm diagnosis by laboratory test .
• No female patient should be examined unless a third person
is present.
• Do not exaggerate nor minimise the gravity of the patient's
condition.
• No experimental method should be adopted without the
consent of the patient.
 DEFENCES AGAINST
NEGLIGENCE
(1) No duty owed to the plaintiff.
(2) Duty discharged according to prevailing standards.
(3) Misadventure - Damage caused due to Unintentional act
(4) Error of judgement.
(5) Contributory negligence – Good defence in civil
negligence but not in criminal negligence
(6) Res judicata – The case has been decided by the court.
Only appeal can be made.
(7) Limitation (Res indicata): The case should be filed within
two years from the date of alleged negligence.
LIABILITY
(LIABILITY FOR ACT OF ANOTHER)

An employer is responsible not only for his

own negligence but also for the negligence of his
employees.
Conditions must be satisfied:
(1) There must be an employer-employee
relationship,
(2) the employee's conduct must" occur within the
scope of his employment
(3) while on the job.
 EXAMPLES:
 In general practice, the principal doctor becomes responsible for
any negligence of his assistant. Both may be sued by the
patient, even though the principal has no part in the negligent
act.
 When two or more independent doctors are attending on a
patient, each may be held liable for the negligence of others that
he observes, or in the ordinary course should have observed &
allows it to continue without objection.
 When a doctor recommends another doctor to his patient after
due care, he is not liable for the negligence of the new doctor,
but he becomes liable if he knowingly refers his patient to an
incompetent doctor.
 CONTD…
 If a physician has written a prescription properly, he is not
liable for a pharmacist's negligence in preparing it. But he may
be liable when he orders a prescription over the telephone
resulting in misunderstanding as to the drugs or their dosage.
 Hospitals cannot be held responsible for the negligent acts of
members of the superior medical staff in the treatment of
patients. if it can be proved that the managers exercised the
due care and skill, in selecting properly qualified and
experienced staff.