Upgrad LLM

medical negligence


A doctor left the mop inside the abdomen of patient. whether it is a case of criminal negligence or it isa case of civil negligence only ? whether doctor is liable u/s 304-A ?

 
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Doctrine of Res Ipsa Loquitur : Things or facts speaks for it self.

This doctrine is applied both to Civil and Criminal Negligence.

Thx & Regards

Dr. Naim Nyazi

 
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ADVOCATE

Dear padam,

I would like to name it as "Medical Negligence" for which the remedies are section 304A under IPC and action for damages under civil law against Tortfeasor/Doctor.

 
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ADVOCATE

I would like to add to my reply that 304A applies only if patient dies else 337/338 IPC as the case may be.

 
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Advocate

Refer to the case of Achutrao Haribhau Khodwa Vs state of Maharasthra: AIR 1996SC 2377. the case is similar to your query.

 
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Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)

Res Ipsa Loquitur - is a rule of evidence - in cases where the act of the person is so gross and negligent on the face of it - it speaks for itself that the person was negligent. Here leaving a mop inside the abdomen of Patient is something that no reasonable man would do, he failed to take even observe minimum reasonable care. Here the patient need not prove the traditional requirements of tort of negligence - 1) Duty to take care 2) Breach 3) Resulting Damage. These need not be proved. The presumption of negligence is attracted u/s 114 IEA. Now the burden to disprove negligence would fall on the doctor. 

As regards criminal liability it is always there as sridhar said - in 304A in cases of Death and in 337/338 in case of hurt caused. Both are attracted. As in cases of negligence recklessness is the mens rea - the mental condition. Recklessness coupled with actus reus that is act of leaving mop inside the abdomen - would attribute liability on him. An attitude of mental indifference to obvious risk. 

Civil Liability is always there. Exemplary damages to be awarded. 


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Sir,

Here the Doctor had exclusive control.

Patient not guilty of contributory negligence.

Absence of negligence no damage would have occurred.

It do not come under calculated risk Doctrine and nether it was an unavoidable risk.

So as per my view its a Gross Negligence on the part of Doctor.

Thx & Regards

Dr. Naim Nyazi

 
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Advocate

Consider this, if it is a Government Hospital and the Doctor is criminally prosecuted by the State  and convicted the Doctor, who will pay the cpmpensation? Should the state prosecute and pay the compensation under the principles of liability of the Principal pay the damages?

 
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Practicing Advocate/Legal Consultant/Legal Process Outsourcing 08427414792

It is Criminal negligence apart from Civil Liability.  The distinction between medical negligence which fastens a mere civil liability and the one which has penal consequences is that of the degree of negligence. Criminal Liability for medical negligence can be fastened when the act of the doctor manifests an utter disregard for human life. The doctrine of Res Ipsa Loquitur would operate with full vigour in this case. The decision in the case of Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634 is fully applicable to the facts of this case.

Regards,

Ashish Davessar


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Advocate

Dear Ashish, you know very well that case relates to tortious liability and not criminal with a decree of Rs.36,000/- against the respondents by the trilcourt. Yes, the evidence of Res Ipsa Loquitur was applied. The question is; when the negligence of the doctors manifestly speak itself resulting in lost of life why dont the police booked the doctor for cognizable criminal offence? having said so, if the doctor is held guilty, should the State pay the compensation after prosecuting him is my query? Is there any case of doctors being criminally prosecuted for gross negligence or for hazardous negligence or criminal negligence etc?

 
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