What is professional negligence
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Oct 17, 2017
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About This Presentation
Professional negligence by Doctors, Medical negligence, Malpraxis, Malpractice, Reasons for charges of negligence against Doctors, Tort, 4 D's of negligence, Civil negligence, Criminal negligence, Ethical negligence, Doctrine of Res ipsa loquitur, Corporate negligence, Contributory negligence, V...
Slide Content
PROFESSIONAL
NEGLIGENCE
Dr Gaurav Aggarwal
MBBS, MD, DNB (Forensic Medicine)
Medicolegal Consultant
& Ex-Professor
+91-9811154655
[email protected]
www.divineassociates.net
NEGLIGENCE
Dr Gaurav Aggarwal
MBBS, MD, DNB (Forensic Medicine)
Medicolegal Consultant
& Ex-Professor
+91-9811154655
[email protected]
www.divineassociates.net
What is the commonest reason
for a charge of medical
negligence against a Doctor ?
— think of an answer —
1. Communication failure
2. Documentation improper
3. Wrong treatment
4. Diagnosis error
5. Delay in treatment
6. Failure to refer in time
for a charge of medical
negligence against a Doctor ?
— think of an answer —
1. Communication failure
2. Documentation improper
3. Wrong treatment
4. Diagnosis error
5. Delay in treatment
6. Failure to refer in time
What is the commonest reason
for a charge of medical
negligence against a Doctor ?
1. Communication failure Y
2. Documentation improper
3. Wrong treatment
4. Diagnosis error
5. Delay in treatment
6. Failure to refer in time
for a charge of medical
negligence against a Doctor ?
1. Communication failure Y
2. Documentation improper
3. Wrong treatment
4. Diagnosis error
5. Delay in treatment
6. Failure to refer in time
is an injury
caused by an
act of another
Intentional Unintentional
Battery
contact injury
Negligence
caused by an
act of another
Intentional Unintentional
Battery
contact injury
Negligence
Professional Negligence
Malpractice = Professional negligence =
Malpraxis
1. Breach of a duty caused by the omission
to do something which a reasonable man
would do or doing something which a
dent and reasonable man would not
O.
Malpractice = Professional negligence =
Malpraxis
1. Breach of a duty caused by the omission
to do something which a reasonable man
would do or doing something which a
dent and reasonable man would not
O.
Professional Negligence
2. Medical negligence or malpractice is
defined as lack of reasonable care and
skill or wilful negligence on the part of a
doctor in the treatment of a patient whereby
the health or life of a patient is endangered
and causes bodily injury or death.
2. Medical negligence or malpractice is
defined as lack of reasonable care and
skill or wilful negligence on the part of a
doctor in the treatment of a patient whereby
the health or life of a patient is endangered
and causes bodily injury or death.
Professional Negligence: 4 D's
In a case of negligence, the consumer must
be able to establish to the satisfaction of the
court that :
(i) the Doctor owed patient a duty to
conform to a particular standard of care i.e.
the duty exists
(ii) the doctor was derelict and breached
that duty- Doctor failed to maintain that
standard of care and skill
In a case of negligence, the consumer must
be able to establish to the satisfaction of the
court that :
(i) the Doctor owed patient a duty to
conform to a particular standard of care i.e.
the duty exists
(ii) the doctor was derelict and breached
that duty- Doctor failed to maintain that
standard of care and skill
Professional Negligence: 4 D's
(ili) the doctor's conduct was the direct or
proximate cause of the damage i.e. the
Doctor failed to exercise that duty of care
and skill
(iv) the patient suffered actual damage- the
injury or disability must be foreseeable .
(ili) the doctor's conduct was the direct or
proximate cause of the damage i.e. the
Doctor failed to exercise that duty of care
and skill
(iv) the patient suffered actual damage- the
injury or disability must be foreseeable .
Professional Negligence
> In legal terms, damage means physical,
mental or functional injury to the patient AND
it must be quantifiable.
> Damages are assessed by courts in terms
of money on the basis of :-
> In legal terms, damage means physical,
mental or functional injury to the patient AND
it must be quantifiable.
> Damages are assessed by courts in terms
of money on the basis of :-
Professional Negligence
(1) Loss of earning— present and future
earnings
(2) Expense incurred
(3) Reduction in expectation of life
(4) Reduced enjoyment of life such as loss
of functions of limb
(1) Loss of earning— present and future
earnings
(2) Expense incurred
(3) Reduction in expectation of life
(4) Reduced enjoyment of life such as loss
of functions of limb
Professional Negligence
(5) Pain and suffering- physical / mental
(6) Loss of potency
(7) Death
(5) Pain and suffering- physical / mental
(6) Loss of potency
(7) Death
Professional Negligence
> The burden of establishing all four
elements- Duty, Dereliction, Direct
causation, Damage- is upon the patient /
consumer.
> Failure to provide substantive evidence
on any one element may result in no
compensation.
> The burden of establishing all four
elements- Duty, Dereliction, Direct
causation, Damage- is upon the patient /
consumer.
> Failure to provide substantive evidence
on any one element may result in no
compensation.
Professional Negligence
The doctor may be liable to both civil &
criminal negligence by a single
professional act ¡.e. in civil court for
damages and in criminal court for
punishment.
The law considers the doctor negligent
only when- (1) he did not consider that
such a complication might occur, (2) that
he failed to watch for it diligently and to
recognize it promptly, (3) failed to treat in
a timely & appropriate manner.
The doctor may be liable to both civil &
criminal negligence by a single
professional act ¡.e. in civil court for
damages and in criminal court for
punishment.
The law considers the doctor negligent
only when- (1) he did not consider that
such a complication might occur, (2) that
he failed to watch for it diligently and to
recognize it promptly, (3) failed to treat in
a timely & appropriate manner.
Professional
negligence
Criminal Civil Ethical
negligence negligence negligence
negligence
Criminal Civil Ethical
negligence negligence negligence
Criminal Negligence
> Here the negligence is so great as to go beyond
matter of mere compensation. Not only has the doctor
made a wrong diagnosis and treatment, but also that
he has shown such gross ignorance, gross
carelessness or gross neglect for the life and safety
of the patient that a criminal charge is brought against
him.
> For this he may be prosecuted in a criminal court for
having caused injury to or the death of patient by a
rash and negligent (=gross) act amounting to
culpable homicide under Section 304A |.P.C.
> Here the negligence is so great as to go beyond
matter of mere compensation. Not only has the doctor
made a wrong diagnosis and treatment, but also that
he has shown such gross ignorance, gross
carelessness or gross neglect for the life and safety
of the patient that a criminal charge is brought against
him.
> For this he may be prosecuted in a criminal court for
having caused injury to or the death of patient by a
rash and negligent (=gross) act amounting to
culpable homicide under Section 304A |.P.C.
Criminal Negligence
Some examples :
1) Injecting anesthetic in fatal dosage or in
wrong tissues
2) Amputation of wrong finger, operation on
wrong limb, removal of wrong organ, or error
in ligation of ducts
3) Operation on wrong patient
4) Leaving instruments or sponges inside
the part of body operated upon
Some examples :
1) Injecting anesthetic in fatal dosage or in
wrong tissues
2) Amputation of wrong finger, operation on
wrong limb, removal of wrong organ, or error
in ligation of ducts
3) Operation on wrong patient
4) Leaving instruments or sponges inside
the part of body operated upon
Criminal Negligence
Some examples :
5) Leaving tourniquets too long, resulting in
gangrene
6) Transfusing wrong blood
7) Applying too tight plaster or splints which
may Cause gangrene or paralysis
8) Performing a criminal abortion
Some examples :
5) Leaving tourniquets too long, resulting in
gangrene
6) Transfusing wrong blood
7) Applying too tight plaster or splints which
may Cause gangrene or paralysis
8) Performing a criminal abortion
Doctrine of Res ipsa loquitur
> The patient need not prove negligence in case
where the thing or fact speaks for itself. The
following conditions should satisfy:-
That in the absence of negligence the injury
would not have occurred normally
That the doctor had exclusive control over the
injury producing instrument or R,
That the patient was not guilty of contributory
negligence
It is applicable in both criminal & civil
negligence
> The patient need not prove negligence in case
where the thing or fact speaks for itself. The
following conditions should satisfy:-
That in the absence of negligence the injury
would not have occurred normally
That the doctor had exclusive control over the
injury producing instrument or R,
That the patient was not guilty of contributory
negligence
It is applicable in both criminal & civil
negligence
Doctrine of Res ipsa loquitur
Examples :-
(1) Failure to give anti-tetanus serum in
injury, causing tetanus
(2) Burn from application of hot-water bottles
or from X- ray therapy
(3) Prescribing an overdose of medicine
producing ill-effect
(4) Giving poisonous medicine carelessly
Examples :-
(1) Failure to give anti-tetanus serum in
injury, causing tetanus
(2) Burn from application of hot-water bottles
or from X- ray therapy
(3) Prescribing an overdose of medicine
producing ill-effect
(4) Giving poisonous medicine carelessly
Doctrine of Res ipsa loquitur
Examples :-
(5) Breaking of needles
(6) Blood transfusion misadventure
(7) Failure to remove swab during operation
causing death
(8) Loss of use of hand due to prolonged
splinting
Examples :-
(5) Breaking of needles
(6) Blood transfusion misadventure
(7) Failure to remove swab during operation
causing death
(8) Loss of use of hand due to prolonged
splinting
Civil Negligence
When a patient dies, any relative can bring
suit in civil court for realisation of
compensation from his Doctor if he has
suffered injury due to negligence.
When a patient dies, any relative can bring
suit in civil court for realisation of
compensation from his Doctor if he has
suffered injury due to negligence.
Corporate Negligence
It is the failure of those persons who are
responsible for providing the
accommodation and facilities necessa
to carry out the purpose of the corporation,
to follow the established standard of conduct.
Examples :-
= when hospital provides defective
equipment or drug
= retains incompetent employee
= fails to maintain standard of care which
results in injury
It is the failure of those persons who are
responsible for providing the
accommodation and facilities necessa
to carry out the purpose of the corporation,
to follow the established standard of conduct.
Examples :-
= when hospital provides defective
equipment or drug
= retains incompetent employee
= fails to maintain standard of care which
results in injury
Contributory Negligence
It is any unreasonable conduct or absence
of ordinary care on the part of the patient
or his personal attendants which
combined with Doctor's negligence,
contribute to injury complained of as a direct,
proximate cause and without which injury
would not have occurred.
> Good defence for Doctors in civil
negligence but not in criminal negligence.
It is any unreasonable conduct or absence
of ordinary care on the part of the patient
or his personal attendants which
combined with Doctor's negligence,
contribute to injury complained of as a direct,
proximate cause and without which injury
would not have occurred.
> Good defence for Doctors in civil
negligence but not in criminal negligence.
Contributory Negligence
Examples :-
Failure to give the doctor accurate history
Failure to carry all reasonable and proper
instructions
Refusal to take suggested R,
Leaving the hospital against medical
advice
Failure to seek further medical R, if
symptoms persist
Examples :-
Failure to give the doctor accurate history
Failure to carry all reasonable and proper
instructions
Refusal to take suggested R,
Leaving the hospital against medical
advice
Failure to seek further medical R, if
symptoms persist
Vicarious Liability
= Liability for act of others.
An employer is responsible not only for
his own negligence but also for the
negligence of his employee by the
principle of respondent superior (let the
master answer).
Must be employer-employee relationship,
while on the job,
employee conduct within the job of
employment.
= Liability for act of others.
An employer is responsible not only for
his own negligence but also for the
negligence of his employee by the
principle of respondent superior (let the
master answer).
Must be employer-employee relationship,
while on the job,
employee conduct within the job of
employment.
Borrowed Servant Doctrine
An employee may serve more than one
employer, e.g. a nurse employed by a
hospital may be the “borrowed servant” of
the operating surgeon during the operation
and the servant of the hospital for all other
purposes.
In this case, the lending employer
temporarily surrenders control over his
employee and the borrowing surgeon
temporarily takes over control.
Negligence charge is maintainable on both-
the surgeon and hospital in such cases too.
An employee may serve more than one
employer, e.g. a nurse employed by a
hospital may be the “borrowed servant” of
the operating surgeon during the operation
and the servant of the hospital for all other
purposes.
In this case, the lending employer
temporarily surrenders control over his
employee and the borrowing surgeon
temporarily takes over control.
Negligence charge is maintainable on both-
the surgeon and hospital in such cases too.
Products Liability
The physical agent which caused the
injury or death of the patient during R, by
the doctor, the injury or death of patient may
result from the unexpected byproduct or
faulty, defective or negligently designed
medical or surgical instruments or
inadequate operating instructions.
In such cases the manufacturer becomes
responsible for injury or death.
The physical agent which caused the
injury or death of the patient during R, by
the doctor, the injury or death of patient may
result from the unexpected byproduct or
faulty, defective or negligently designed
medical or surgical instruments or
inadequate operating instructions.
In such cases the manufacturer becomes
responsible for injury or death.
Products Liability
Examples :-
If doctor proves-
(1) The manufacturer departed from
standard of due care
(2) Negligent design, manufacture, assembly,
packing, failure to test, inspect for defects or
failure to warn or give adequate instructions
Examples :-
If doctor proves-
(1) The manufacturer departed from
standard of due care
(2) Negligent design, manufacture, assembly,
packing, failure to test, inspect for defects or
failure to warn or give adequate instructions
Novus actus interveniens
= an unrelated action intervening
A person is responsible not only for his
own action but also for the logical
consequences of those actions. The
principle Replies to cases of assault and
accidenta litres ? This plea is rarely
accepted by the courts.
eg. leaving a swab or instrument in the
abdomen after repair of an internal injury,
accidental substitution of poisonous drug for
therapeutic drug, etc.
= an unrelated action intervening
A person is responsible not only for his
own action but also for the logical
consequences of those actions. The
principle Replies to cases of assault and
accidenta litres ? This plea is rarely
accepted by the courts.
eg. leaving a swab or instrument in the
abdomen after repair of an internal injury,
accidental substitution of poisonous drug for
therapeutic drug, etc.
ETHICAL
NEGLIGENCE
NEGLIGENCE
Ethical Negligence
This amounts to neither criminal nor civil
negligence.
The patient is not directly affected i.e. there
is no damage to the patient directly.
These are the acts of violation/ breach of
ethics of medical practice.
Breach of MCI's Code of Medical Ethics
(Rules & Regulations), 2002.
This amounts to neither criminal nor civil
negligence.
The patient is not directly affected i.e. there
is no damage to the patient directly.
These are the acts of violation/ breach of
ethics of medical practice.
Breach of MCI's Code of Medical Ethics
(Rules & Regulations), 2002.
Ethical Negligence
In such a case no compensation is to be
paid.
These are cases of unethical acts of Doctors
or at times cases of professional
misonduct.
Action on Doctors is taken by the medical
councils.
In such a case no compensation is to be
paid.
These are cases of unethical acts of Doctors
or at times cases of professional
misonduct.
Action on Doctors is taken by the medical
councils.
DEFENCES AGAINST
NEGLIGENCE
NEGLIGENCE
Defences Against Negligence
a) When the Doctor has no duty towards the
patient
b) Duty discharged according to prevailing
standards
c) Therapeutic Misadventure = Medical
maloccurence
d) Error of judgement / error of diagnosis
e) Contributory Negligence
f) Res judicata - case already decided in
another court
g) Limitation - of medical treatment
h) Time limit of 2 years of filing a civil suit
has elapsed
a) When the Doctor has no duty towards the
patient
b) Duty discharged according to prevailing
standards
c) Therapeutic Misadventure = Medical
maloccurence
d) Error of judgement / error of diagnosis
e) Contributory Negligence
f) Res judicata - case already decided in
another court
g) Limitation - of medical treatment
h) Time limit of 2 years of filing a civil suit
has elapsed
CD Oil gee ES
Common circumstances under
which a patient sues a physician
for negligence
Hurt ego / Communication failure
Excessive billing
Sick patient / Poor outcome
Uncooperative / Aggressive patient
Failure to supply medical records
Death
Common circumstances under
which a patient sues a physician
for negligence
Hurt ego / Communication failure
Excessive billing
Sick patient / Poor outcome
Uncooperative / Aggressive patient
Failure to supply medical records
Death
Circumstances under which a
Doctor cannot be sued
. Error of judgment or error in diagnosis
. Even when there was negligence of the
physician but the patient suffered no
damage
Doctor cannot be sued
. Error of judgment or error in diagnosis
. Even when there was negligence of the
physician but the patient suffered no
damage
Thank you !
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