Medical negligence

Medical negligence

Q. 1 In civil negligence, onus of proof lies on
 A

Judicial first degree magistrate

 B

Police not below the level of sub inspector

 C

Doctor

 D

Patient

Q. 1 In civil negligence, onus of proof lies on
 A

Judicial first degree magistrate

 B

Police not below the level of sub inspector

 C

Doctor

 D

Patient

Ans. D

Explanation:

Patient [Ref- Reddy’s Forensic 29/e p30; Parikh 6/e p1.441

“Generally speaking, it is for the patient in an action for negligence to establish the guilt of the doctor, whose innocence is otherwise assumed.”- Parikh

However, in cases where the rule of res ipso loguitur is applied, the patient need not prove negligence. Res ipso loquitur means that “the thing or fact speaks for itself.” The patient has to merely state what according to him was the act of negligence.

The 3 essential conditions considered necessary for res ipsa loquitur are:

  1. The nature of injury suggests by common knowledge or expert evidence that without negligence it does not occur.
  2. The patient must not contribute to his own injury
  3. The doctor had exclusive control over the injury producing instrument or treatment.

Professional negligence

  • Professional negligence is defined as absence of reasonable care and skill, or wilful negligence of a medical practioner in the treatment of a patient, which causes bodily injury or death of the patient. The word negligence is defined as the omission to do something (act of omission) which a reasonable person would do, or doing something (act of commission) which a reasonable person would not do.
  • To prove an act of negligence the onus lies on the patient (or his relative if the patient has died). Following conditions must be proved by the patient (4Ds):
  1. Duty- the doctor (defendant) owed him a duty of care.
  2. Dereliction- the doctor failed to perfonn that duty.
  3. Damage- the patient suffered actual damage due to negligence of the doctor.
  4. iv.      Direct causation- the doctor’s negligence directly led to the damage without any other intervening cause.
  • Professional negligence can be of 2 types: Civil negligence and Criminal negligence.

Civil negligence

  • Civil negligence arises

– when a patient (or his relative, in case of patient’s death) files suit in a civil court to get compensation from his doctor for the injury or death of the patient due to doctor’s negligence.

a doctor files civil suit to get fees from his patient, who refuses to pay alleging negligence.

Criminal negligence

  • Criminal negligence arises when the degree of negligence is so grave that it goes beyond matters of comensation. Case is filed in a criminal court.
  • Criminal negligence occurs when the doctor shows gross lack of competence, or gross inaction, gross recklessness, gross negligence in selection and application of remedies. It involves extreme departure from the ordinary standard of care.
  • Criminal negligence cases are very rare.
  • Note that- A doctor will not be criminally liable if a patient dies due to an error of judgement or carelessness or want of due caution, though lie can be liable to pay compensation.
  • Examples of criminal negligence?

Amputation of wrong limb or digit or of the wrong patient.

– Leaving instruments, tubes, sponges or swabs within the body.

– Gross mismanagement under the influence of alcohol or drugs

– Performing criminal abortion

– Administration of a wrong substance into the eye causing loss of vision.

– Giving wrong or infected blood.

– Gangrene after too tight plastering.

Note that?

  • Even if a doctor is negligent, a patient is not entitled for any compensation if no damage has occurred.
  • An error in diagnosis or treatment is not negligence provided proper care and skill has been exercised.
  • Contributory negligence is not a defence in criminal negligence. (Contributory negligence is any negligence on the part of the patient or his attendant, which along with the doctor’s negligence, contributed to the injury)
  • Criminal negligence cases are dealt under I.P.C. section 304A.

Q. 2 Contributory negligence is by:
 A Doctor
 B Patient
 C Both
 D Attendant
Q. 2 Contributory negligence is by:
 A Doctor
 B Patient
 C Both
 D Attendant
Ans. C

Explanation:

Both


Q. 3

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:

 A

Inadvertent negligence

 B

Negligence as per doctrine of res ipsa loquitor

 C

Negligence in corporate hospital

 D

Gross medical negligence

Q. 3

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:

 A

Inadvertent negligence

 B

Negligence as per doctrine of res ipsa loquitor

 C

Negligence in corporate hospital

 D

Gross medical negligence

Ans. D

Explanation:

A doctor is punishable under IPC 304 A if there is evidence of gross medical negligence / criminal negligence.

According to this act, whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment upto 2 years or with fine or both.

Criminal negligence occurs when the doctor shows gross lack of competence or gross inattention or inaction, gross recklessness, or wanton difference to the patients safety or gross negligence in the selection and application of remedies.

Quiz In Between


Q. 4

Contributory negligence is by the part of:

 A

Doctor

 B

Patient

 C

Both of the above

 D

Paramedics

Q. 4

Contributory negligence is by the part of:

 A

Doctor

 B

Patient

 C

Both of the above

 D

Paramedics

Ans. C

Explanation:

Contributory negligence is defined as a concurrent negligence by the patient and doctor resulting in delayed recovery or harm to the patient.

The negligence of both parties has contributed to this harm.

Contributory negligence is good defense for the physician in civil cases but not in criminal cases.


Q. 5

Criminal negligence is punishable under :

 A

306 IPC

 B

307 IPC

 C

304-A IPC

 D

304-B IPC

Q. 5

Criminal negligence is punishable under :

 A

306 IPC

 B

307 IPC

 C

304-A IPC

 D

304-B IPC

Ans. C

Explanation:

C i.e. 304 A


Q. 6

Criminal negligence is punishable under Section 304A for a maximum of:

 A

1 year

 B

2 year

 C

3 year

 D

5 year

Q. 6

Criminal negligence is punishable under Section 304A for a maximum of:

 A

1 year

 B

2 year

 C

3 year

 D

5 year

Ans. B

Explanation:

B i.e. 2years

Quiz In Between


Q. 7

Which is Not a medical negligence act:

 A

37 IPC

 B

304 A

 C

351 IPC

 D

312 IPC

Q. 7

Which is Not a medical negligence act:

 A

37 IPC

 B

304 A

 C

351 IPC

 D

312 IPC

Ans. C

Explanation:

C i.e. 351 IPC


Q. 8

Law does not consider the following doctrine in a charge of criminal negligence :

 A

Vicarious liability

 B

Contributory negligence

 C

Resipsa loquitur

 D

Novus actus interveniens

Q. 8

Law does not consider the following doctrine in a charge of criminal negligence :

 A

Vicarious liability

 B

Contributory negligence

 C

Resipsa loquitur

 D

Novus actus interveniens

Ans. B

Explanation:

B i.e. Contributory negligence


Q. 9

All of the following conditions of defence available to a doctor against allegation of negligence except

 A

Medical maloccurrence

 B

No fee for treatment charged

 C

Therapeutic misadventure

 D

Res Judicata

Q. 9

All of the following conditions of defence available to a doctor against allegation of negligence except

 A

Medical maloccurrence

 B

No fee for treatment charged

 C

Therapeutic misadventure

 D

Res Judicata

Ans. B

Explanation:

B i.e. No fee for treatment charged

Quiz In Between


Q. 10

In civil negligence, onus of proof lies on:

 A

Judicial first degree magistrate

 B

Police not below the level of sub inspector

 C

Doctor

 D

Patient

Q. 10

In civil negligence, onus of proof lies on:

 A

Judicial first degree magistrate

 B

Police not below the level of sub inspector

 C

Doctor

 D

Patient

Ans. D

Explanation:

D i.e. Patient

In case of malpractice, punishment is given by civil or criminal courtQ (depending on type of negligence).

Generally, the innocence of doctor is assumed and in cases where negligence is alleged, the plantiff (complainant, patient) has to establish the guilt. The patient is expected to prove that the defendant (doctor) was negligent; there fore the onus (responsibility) of proof lies on patient. But when the doctrine of res ipsa loquitor (ie thing speaks for itself) is applied such as in case of surgery on wrong patient / side / organ etc, the doctor will have to prove that what has happened is not due to his negligenceQ. This means onus of proof lies on patient in negligence (all civil & most criminal case) except in cases where doctrine of res ipsa loquitor appliesQ.

Therapeutic misadventure (mischance / disaster / accident) is death or injury of a patient due to some unintentional act by doctor /nurse /hospitalQ during treatment (therapeutic), diagnosis (diagnostic) or experimental study.

It provides defence against neglince because a doctor can’t be held responsible for injuries resulting from adverse reaction of drug. However, the doctor must warn patient about possible side effects (eg death during surgery or transfusion). And ignorance of the possibility of reaction to drug prescribed to patient amounts to negligence (ie it is not 100% = absolute defence).

At times it is not possible to explain every thing to the patient (who may be scared of procedure). Under such circumstances doctor can reveal the details to any one of close relatives of patient. This is called doctrine of therapeutic privilege. Doctrine of emergency says that doctor can provide the treatment without taking prior consent from a patient who is gravely sick, (critically ill), unconscious, or not able to understand the suggestion, or when mentally ill (IPC section 92). In emergency situation involving children, when their parents are not available, a/t doctrine of locoparentis, consent can be obtained from accompanying person (eg teacher or relative). On certain occasions, despite all proper care given by doctor during treatment, the patient might suffer severe injuries or permanent deformity. This is k/a medical maloccurance, inevitable act or Act of God. If doctor proves this before court, it will be an absolute defence against malpractice.

Free (charity) treatment of patient does not give doctor immunity (defence) against negligenceQ. Whereas judgemental (diagnostic) error, therapeutic misadventure, medical maloccurance, calculated risk doctrine, contributory negligence (on part of patient), product liability, and res judicata (complain already tried once in court) provide defenses to a doctor against charges of negligence. Law does not consider doctrine of contributory negligence & consent in charges of criminal negligence; whereas these provide defence in civil negligence.


Q. 11

A patient died and relatives complain that it is due to negligence of doctor. According to a recent Supreme Court judgement, doctor can be charged for Medical Negligence

under section 304-A, only if:

 A

If he is from corporate hospital

 B

If negligence is from inadvertent error

 C

Gross negligence

 D

Res Ipsa Loquitor

Q. 11

A patient died and relatives complain that it is due to negligence of doctor. According to a recent Supreme Court judgement, doctor can be charged for Medical Negligence

under section 304-A, only if:

 A

If he is from corporate hospital

 B

If negligence is from inadvertent error

 C

Gross negligence

 D

Res Ipsa Loquitor

Ans. C

Explanation:

C i.e. Gross negligence

A/t recent supreme court judgement, doctor can be charged for medical negligence under section 304-A IPC (ie criminal negligence), only if he shows gross lack of competence/ skills, gross inattention, or inaction or recklessness or wanton (gross) indifference to the patient’s safety or gross negligenceQ


Q. 12

If death of a patient occurs during surgery due to the negligence of the surgeon, then he can be charged under:  

COMEDK 07; DNB 09; NEET 14

 A

299 IPC

 B

300 IPC

 C

304-A IPC

 D

304-B IPC

Q. 12

If death of a patient occurs during surgery due to the negligence of the surgeon, then he can be charged under:  

COMEDK 07; DNB 09; NEET 14

 A

299 IPC

 B

300 IPC

 C

304-A IPC

 D

304-B IPC

Ans. C

Explanation:

Ans. 304-A IPC

Quiz In Between


Q. 13

In civil negligence cases against the doctor, the onus of the proof lies with:     

AIIMS 11

 A

Doctor

 B

Patient

 C

First class judicial magistrate

 D

Police not below the rank of sub-inspector

Q. 13

In civil negligence cases against the doctor, the onus of the proof lies with:     

AIIMS 11

 A

Doctor

 B

Patient

 C

First class judicial magistrate

 D

Police not below the rank of sub-inspector

Ans. B

Explanation:

Ans. Patient


Q. 14

Contributory negligence is related with:      

DNB 08

 A

Eggshell skull rule

 B

Master-servant rule

 C

Avoidable consequence rule

 D

Common knowledge rule

Q. 14

Contributory negligence is related with:      

DNB 08

 A

Eggshell skull rule

 B

Master-servant rule

 C

Avoidable consequence rule

 D

Common knowledge rule

Ans. C

Explanation:

Ans. Avoidable consequence rule


Q. 15

Medical negligence in which the patient contributed to the injury complained of:          

DNB 09

 A

Civil negligence

 B

Corporate negligence

 C

Contributory negligence

 D

Criminal negligence

Q. 15

Medical negligence in which the patient contributed to the injury complained of:          

DNB 09

 A

Civil negligence

 B

Corporate negligence

 C

Contributory negligence

 D

Criminal negligence

Ans. C

Explanation:

Ans. Contributory negligence

Quiz In Between


Q. 16

Contributory negligence is negligence due to:

NEET 13

 A

Doctor only

 B

Patient only

 C

Both doctor and patient

 D

Hospital administrator and doctor

Q. 16

Contributory negligence is negligence due to:

NEET 13

 A

Doctor only

 B

Patient only

 C

Both doctor and patient

 D

Hospital administrator and doctor

Ans. C

Explanation:

Ans. Both doctor and patient


Q. 17

Contributory negligence is a defense in:

AP 08; Delhi 08; Odisha 11

 A

Civil negligence

 B

Criminal negligence

 C

Corporate negligence

 D

Composite negligence

Q. 17

Contributory negligence is a defense in:

AP 08; Delhi 08; Odisha 11

 A

Civil negligence

 B

Criminal negligence

 C

Corporate negligence

 D

Composite negligence

Ans. A

Explanation:

Ans. Civil negligence


Q. 18

Apex body dealing with medical negligence cases:    

Maharashtra 11

 A

MCI

 B

State Medical Council

 C

Supreme Court

 D

National Consumer Commission

Q. 18

Apex body dealing with medical negligence cases:    

Maharashtra 11

 A

MCI

 B

State Medical Council

 C

Supreme Court

 D

National Consumer Commission

Ans. D

Explanation:

Ans. National Consumer Commission

Quiz In Between


Q. 19

Doctor liable to get sued by patient till what time limit from alleged negligence:

JIPMER 10; Maharashtra 09, 11

 A

1 year

 B

2 years

 C

3 years

 D

4 years

Q. 19

Doctor liable to get sued by patient till what time limit from alleged negligence:

JIPMER 10; Maharashtra 09, 11

 A

1 year

 B

2 years

 C

3 years

 D

4 years

Ans. B

Explanation:

Ans. 2 years


Q. 20

A patient died during surgery. The relatives allege that death was due to negligence. According to a recent Supreme Court judgment, doctor can be charged for Medical Negligence under section 304-A, only if:

 A

There is corporate negligence

 B

Negligence is from inadvertent error

 C

There is gross negligence

 D

It falls under the doctrine of Res Ipsa Loquitor

Q. 20

A patient died during surgery. The relatives allege that death was due to negligence. According to a recent Supreme Court judgment, doctor can be charged for Medical Negligence under section 304-A, only if:

 A

There is corporate negligence

 B

Negligence is from inadvertent error

 C

There is gross negligence

 D

It falls under the doctrine of Res Ipsa Loquitor

Ans. C

Explanation:

Ans. c. There is gross negligence

  • A physician can be charged with criminal negligence in Section 304 A, when a patient dies from the effects of anesthesia during, an operation or other kind of treatment, if it can be proved that the death was the result if malicious intention, or gross negligence.
  • “Section 304-A deals with criminal negligence. Criminal negligence occurs when the doctor shows gross lack of competence or inaction, gross recklessness or wanton indifference to the patient’s safety, or gross negligence in the selection and application of remedies. It involves an extreme departure from the ordinary standard of care.”

Inadvertent Negligence (Accidental negligencel:

  • Inadvertent negligence can be called simple negligence.
  • In this case, the harm done is neither foreseen nor willed

Corporate Negligence:

  • It occurs when a health care corporation failed to perform those duties, it owes directly to a patient or anyone else to whom it may extend.
  • If such a duty is breached and patient is injured due to result of the breach, the organization can be held under the theory of corporate negligence.

Res Ipsa Loquitur:

  • Latin meaning of phrase is-the things or facts speaks for itself.
  • This rule is applied when the following conditions are satisfied:
  • That in the absence of negligence the injury would not have occurred ordinarily.
  • That doctor had exclusive control over injury producing instrument or treatment
  • That the patient was not guilty of contributory negligence.

Quiz In Between



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