Professional Negligence (Malpraxis)
Negligence
- Doing something that one is not supposed to do, or failing to do something that he is supposed to do
Professional negligence/Malppaxis
- Absence of reasonable care and skill, or willful negligence of a medical practitioner in the treatment of patient which causes bodily injury or death of patient
Civil Negligence
- Following conditions should be satisfied for proving liability of negligence-
- Duty-existance of duty of care by the doctor
- Dereliction-failure on the part of doctor to maintain applicable standard of care and skill
- Direct causation- any damage was caused by breach of duty
- Damage – lost wages, medical expenses and mental duress
- Res ipsa loquitur
- “the thing or fact speaks for itself”
Elements
- Injury could not have occurred without negligence
- Defendant had full control over the agency/treatment causing injury
- Plaintiff did not contribute to the injury
Defence to negligence
- No duty owned to plaintiff
- Duty was discharged according to the prevailing standard
- Case of misadventure
- Medical maloccurrence
- Therapeutic misadventure
- Res Judicata
- It was error of judgment
- Contributory negligence
- Intervention of third party
- Limitation of 2 years
Contributory negligence
- Concurrent negligent act or unreasonable conduct on the part of the patient and doctor.
- Not defence in case of criminal negligence
Misadventure
- Dangerous unforeseeable effects, following use of some procedure, measures or drugs
- Therapeutic
- Diagnostic
- Experimental
Criminal malpraxis
- Medical practitioner prosecuted in criminal court on the charge of having caused death of his patient
- By a rash or negligent act not amounting to murder
- Gross carelessness in the treatment
- Sec 304A IPC
Exam Question
- Contributory negligence is by the part of Both Doctor & Patient
- After the unexpected death of a 17 year old boy on the ward the relatives claimed that it is due to the negligence of doctor. According to recent ruling of supreme court he is punishable under IPC 304 A only if there is Gross medical negligence
- Professional negligence means malpraxis
- Conditions of defence available to a doctor against allegation of negligence are Medical maloccurrence, Therapeutic misadventure & Res Judicata
- According to a recent Supreme Court judgement, doctor can be charged for Medical Negligence under section 304-A, only in Gross negligence
- If death of a patient occurs during surgery due to the negligence of the surgeon, then he can be charged under 304-A IPC
- In civil negligence cases against the doctor, the onus of the proof lies with Patient
- Contributory negligence is related with Avoidable consequence rule
- Medical negligence in which the patient contributed to the injury complained of Contributory negligence
- Contributory negligence is negligence due to Both doctor and patient
- Contributory negligence is a defense in Civil negligence
- Apex body dealing with medical negligence cases National Consumer Commission
- Doctor liable to get sued by patient till what time limit from alleged negligence 2 years
- A person undergone appendisectomy. On post op day 10 he died, postmortem patholigst found gossypiboma. It is a case of Criminal negligence
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