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In this article we are going to discuss about the meaning,components and types of medical negligence. The legal consequences and the compensation granted by court has also mentioned in this article. This article has been written by Ashutosh Nath, a student of Symbiosis Law School, Hyderabad.
1)
WHAT IS NEGLIGENCE?
In this article, we will try to understand the concept of medical negligence. In layman’s language, the term negligence means the
carelessness activity which has been conducted by one person as a result other
person suffers a lot of losses. Many of the time negligence is connected with
bad intention i.e., mens rea. So, we can also remark the negligence as culpable
i.e. (punishable).[1]
1.1. NEGLIGENCE
IN LEGAL TERM-
In legal
terms, negligence means the act or omission by a person towards another person,
when he has a legal duty to do something. Meaning here by when a person has a
legal duty to do something and the person is not doing the same then it will
amount to negligence on the part of the duty holder. Similarly, if a person is
legally entitled not to do something but he is doing the work then it will also
amount to negligence.[2]
1.2) MEDICAL
NEGLIGENCE-
When there
is a duty on the part of a medical practitioner to take reasonable care of a
patient and due to the absence of such reasonable care or wilful negligence the
patient suffers losses, then it amounts to a case of medical negligence. Sometimes
the patient dies due to such negligence activity on the part of the doctors.
This category of negligence is called as medical negligence.
1.3)
COMPONENTS OF MEDICAL NEGLIGENCE-
Mainly four
things constitute medical negligence. These 4 things are called four “D” of
medical negligence. They are 1) legal duty 2) Dereliction Duty 3) Breach of
duty (Damages) 4) Direct causation. All of these elements are mentioned in
detail hereinafter.[3]
1)
Duty- As soon a doctor agrees to treat a patient, an
onus of legal duty comes on the solder of a doctor. After that, the doctor is bound to conduct
the legal duty.
Similarly, during the times of emergence, a doctor always has a legal
duty towards his patient. This duty comes from the doctor-patient relationship.
If there is no emergence then there is no legal duty toward the patient.
2)
Dereliction Duty-
When there is a duty on the part of the doctor then he/she is bound to do
that duty. The breach of such duty will amount to negligence. In the cases of
medical negligence, there must be a breach of duty on the part of the medical
practitioners.
3)
Damages-
It is very much important that some of the damages have occurred on the
part of the patient. If no damages have occurred then this will not amount to
negligence.
4)
Direct causation-
In the cases of medical negligence, the damages must be the result of the
breach of legal duties, which has been imposed on the part of the doctor. If
the damage is not the direct result of the breach of legal duty then it will
not amount to medical negligence. On the other hand, we can also say, the
damages must be the result of the proximate cause.[4]
1.4) TYPES
OF MEDICAL NEGLIGENCE-
Medical
negligence has been divided into different types by considering different
factors. The main types of medical negligence are as follows.[5]
1)
Doctors’
negligence (civil or criminal negligence)
2)
Patient
negligence
3)
Contributory
negligence
4)
Composite
negligence
5)
Corporate
negligence.
1.5) LEGAL
CONSEQUENCES-
Depending on
the types of negligence the consequence of medical negligence has been divided
into 3 categories. They are 1) civil consequences) criminal Consequences and 3)
Disciplinary actions.[6]
1)
Civil- Monetary
compensation is considered to be the only result under civil negligence. In the
cases of civil negligence, the decision can be taken by civil courts or
consumer court.
2)
Criminal-
The Indian penal code provides provisions regarding general medical negligence.
As per section 304A, a person can be imprisoned for up to 2 years if, it has
been founded that the deceased person has been died due to the negligence
activity of the medical practitioner.[7]
3)
Disciplinary Actions- Under this segment a disciplinary action can be
taken by either the central or state government as per the “Indian Medical Council (IMC) (Professional
Conduct, Etiquette, and Ethics) Regulations, 2002”.[8]
[1]
Bag RK. “Law of Medical Negligence and Compensation”. (1 ed New Delhi,
Eastern Law House Pvt. Ltd.; (2001)
[2]
Ibid
[3]
Lavlesh Kumar, “Medical negligence-
Meaning and Scope in India” JNMA;
journal of the Nepal Medical Association · March 2011
[4]
Ibid
[5]
Supra Note-11
[6]
Supra Note-09
[7]
Indian Penal Code$ 304A
[8]
“The Indian
Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics)
Regulations, 2002”
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