NEGLIGENCE Carelessness or Not to give proper care

NEGLIGENCE “Carelessness” or “Not to give proper care” Conduct without due regard for the safety of others

Law of negligence applicable to the conduct of all whether professional or layman (Privilege / Obligation)

Medical Negligence Treatment without proper care

Scope of Medical Negligence Ingredients • Duty to act or not to act • Breach of duty • Breach has resulted into a damage

Duties of a doctor 1. Care of Patient • Presumption • Agreement or implied contract between doctor and patient --- Responsibility to treat • Situations 1. Private practice 2. Government employment / others 3. Emergency room • Termination of duty

Duties of a doctor 2. Duty to respond in emergency / night calls • Personal or family physician

Duties of a doctor 3. Possession of skill and knowledge required to treat patient 1. Commensurate with his claim 2. General practitioner / specialist 3. Situations encountered by junior doctors while rendering specialist treatment • • When expert / specialist advice available When expert / specialist advice not available

Duties of a doctor 4. Duty to show skill and care 5. Duty to keep himself abreast with recent advances in techniques / procedures and knowledge about drugs 6. Duty to obtain informed consent 7. Duty to maintain professional secrecy

Professional Secrecy Arises by virtue of ethical standards accepted in the medical profession Three principles: 1. No disclosure 2. Partial disclosure 3. Complete disclosure

Privilege Communication Arises by virtue of legislatively created protections. Sometimes the public duty overcomes the professional duty and professional secrecy can not be maintained. Communications made in these situations are called privilege communication

Qualified Privilege Breach of duty is protected if certain conditions are observed • Not malicious • In good faith • To a party having duty to receive it

Absolute Privilege Professional dictates are ignored in Toto as all courts enjoy absolute privilege over all secrets involved between doctor and patient Nothing said in these circumstances can be used for any action liable or slender

Professional Confidence may be broken • With consent of the patient • As a statuary duty laid down by law • By order of the Court / Parliament • In the larger interest of the community

Professional Negligence No statuary definition Chief Justice Lord Tindal 1838 – Doctor, who has a relationship of professional attendance with a patient, undertakes to practice his profession with a reasonable degree of care and skill and when he fails in this respect, he may have shown professional negligence

Doctor’s share of responsibility Patient’s share of responsibility

Ingredients to be proved for medical negligence Five elements of common law “Tort”— Civil Wrong 1. Plaintiff’s right to be free from illness (physical / mental) 2. Defendant’s duty to plaintiff to conform to a standard 3. Breach of this duty 4. Breach resulting into damage to plaintiff 5. Determination of damage in terms of money

Patient has to Prove 1. Integrity of his person or part affected 2. Doctor owe a duty of care to patient 3. Doctor was in breach of duty by his negligent act 4. Breach has caused patient to suffer damage 5. Patient proves the loss / damage in terms of money

Res-ipsa-loquitur Doctrine of common law of negligence – “Thing speak for itself” • Patient has in no way contributed to his own injury • Instrument causing injury was in sole control of doctor • Damage would not have occurred in the absence of negligence

Situation in our country Implicit loyalty of patient to doctor hence no claim for damages – Doubles the responsibility

Types of Negligence • Criminal • Civil 1. Malpraxis 2. Contributory 3. Third party

Criminal Negligence Reckless, wicked attitude showing complete disregard for the safety of the patient’s life culminating into his death “Manslaughter”

Civil Negligence Lack of carefulness administering treatment while

Malpraxis • Extraction of wrong / healthy tooth • Amputation of wrong / healthy limb • Failure to give anti-tetanus vaccine following injury causing disease to the patient • Failure to x ray the fractured part

Contributory Negligence Patient and doctor contribute

Third Party Negligence Paramedic’s “Master-Servant Doctrine” “Doctrine of “Respondent Superior” or “Captain Ship theory” “Vicarious liability” – Liability without direct fault “Borrowed Servant Doctrine”

Defense against Allegations of Negligence • Doctrine of “informed consent” • Doctrine of “volunti-non-fit-injuria” -- Assumption of risk – Patient insists upon the course of treatment in spite of the fact that doctor was reluctant • Negligence of third party • Contributory negligence or Delegation of duties (patient’s share of responsibility)