MEDICAL NEGLIGENCE:

Tort is a common law remedy accessible in India for civil wrongs committed by one person against another, although it is not codified. Medical negligence falls under the ambit of “negligence,” which includes the same components as negligence. Negligence is defined as “omission to do something which a prudent and reasonable man would do, or doing something which a prudent and reasonable man would not do, and is actionable whenever, as between the plaintiff and the defendant, there is a duty cast upon the latter not to be negligent and there is a breach of this duty which causes damages to the plaintiff”.[1]

In India, there is no statute that defines the term “medical negligence.” In layman’s terms, medical negligence refers to a doctor’s carelessness when treating a patient. When a medical practitioner serves a patient, he is supposed to follow a certain standard of care. Medical negligence is defined as a failure to provide this level of care to a patient. When considering medical negligence as a tort, it’s important to grasp what this standard of care is. Negligence can be little, causing no harm to the patient, or it can be severe, causing serious harm to the patient. As a result, it is critical to resolve it legally.

Committing errors or being negligent in the health profession can result in small injuries or even catastrophic injuries, and these errors can even result in death. Because no one is flawless in our world, even someone who is educated and knowledgeable about a subject can make mistakes. It is human to make mistakes, but it is neglect to repeat the same error due to carelessness. The basic reason for medical negligence is that doctors’ or medical professionals’ carelessness is frequently demonstrated in a variety of situations where reasonable care is not taken, like during diagnosis, procedures, or the injection of anaesthetic, for example.

FUNDAMENTALS OF MEDICAL NEGLIGENCE:

“Medical negligence” is made up of two words: ‘medical’ and ‘negligence’. ‘Negligence’ is defined as the failing to take necessary precautions. Medical malpractice is no exception. It’s only that in cases of medical malpractice, the offender is the practitioner. The perquisites of a medical negligence in law of torts are;

1. “The defendant owed a duty of care to the plaintiff.”
2. “The defendant made a breach of that duty.”
3. “The plaintiff suffered damage as a consequence of that breach.”

Existence of a legal duty: Anytime an individual approaches another individual, believing him to have a specific skill or unique understanding about an issue, the other party is under an implicit legal obligation to conduct due care and behave in a way that is anticipated in the usual course from his peers. So it isn’t true that a legal obligation can only be based on a contract. Inability on the behalf of that very individual to accomplish anything that was required of them, something that was just and fair, is considered carelessness.

 Breach of legal obligation: If the individual using the ability does something that a regular reasonable man would not have done or fails doing something that a regular reasonable man would have performed in a similar scenario, it is unquestionably a violation of legal obligation. The standards are not supposed to be of a particularly high calibre, but rather of the kind that would be anticipated of a guy in the regular course of therapy.

Damages resulting from the breach: The wrongdoing, the damage created by such carelessness, is liable to be reimbursed in financial terms, and the authorities utilise well-established criteria to determine the exact recoverable value. It’s important to keep in mind that there’s no such thing as a universally applicable norm. The consumer forum must consider all relevant circumstances and determine reimbursement in accordance with recognised jurisprudence of proportionality when granting reimbursement. As per the evidence and circumstances of the crime, it is up to the consumer court to determine if the recompense granted is appropriate, just, and suitable.

According to the injury inflicted by the wrongdoer to the injured man, the responsibility of the wrongdoer might be one of 3 kinds:

1. “Civil liability” -As previously stated, an individual who has exceptional knowledge and expertise in a subject and applies that expertise to heal another person bears the other individual a duty of care. If he commits a wrong within this time, he will be held accountable for penalties in the sort of payment. In some cases, medical professionals or hospital administrators may be found vicariously accountable for the wrongdoings of young doctors.
2. “Criminal liability”: The victim may expire post-treatment, and a criminal investigation may be launched per section 304A of the IPC for supposedly killing a person by reckless or careless action. The initiation or continuation of a murder proceeding does not exclude concurrent civil procedures for financial recapture or a consumer grievance, nor may it be stopped.
3. However, there are numerous instances in which criminal and civil laws can coexist. The two cures are not inherently incompatible; rather, they are plainly co-extensive and fundamentally vary in situation and outcome. The goal of criminal procedure is to prosecute a perpetrator who has committed recklessness, whereas the goal of common law is to obtain restitution from the opposing party.

[1] Laski, Harold J. “The Basis of Vicarious Liability.” The Yale Law Journal, vol. 26, no. 2, 1916, pp. 105–135. JSTOR, www.jstor.org/stable/786314. Accessed 1 Jan. 2021.

Aishwarya Says:

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