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mukesh gupta (advocate)     24 February 2012

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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 17 Replies

Naim (Clerk)     24 February 2012

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

sridhar pasumarthy (ADVOCATE)     24 February 2012

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.

sridhar pasumarthy (ADVOCATE)     24 February 2012

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

N.K.Assumi (Advocate)     24 February 2012

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

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     24 February 2012

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. 

1 Like

Naim (Clerk)     25 February 2012

 

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

N.K.Assumi (Advocate)     25 February 2012

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?


(Guest)

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

1 Like

N.K.Assumi (Advocate)     26 February 2012

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?

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     26 February 2012

It is criminal negligence.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

N.K.Assumi (Advocate)     26 February 2012

Yes, criminal l;iablity can be fastened on the doctor, so question is, should the State prosecute the doctor and if convicted by the criminal court, should the state pay the compensation on the doctrine of Liability of the Principal to pay the compensation.

N.K.Assumi (Advocate)     26 February 2012

Dear Sir Shonee, the question can be considered in this manner.A filed a criminal complaint against C and C was found guilty of criminal negligence for which A pay a large sum of compensation to B, who suffered due to the negligence of B the servant of A.

N.K.Assumi (Advocate)     26 February 2012

Dear Sir Shonee, the question can be considered in this manner.A filed a criminal complaint against C and C was found guilty of criminal negligence for which A pay a large sum of compensation to B, who suffered due to the negligence of C the servant of A.

Nitish Banka (lawyer)     08 April 2018

Medical Negligence consumer forums Judgements Posted by: Nitish Banka Categories: Uncategorized No comments Medical Negligence How to prove Here are some Medical Negligence consumer forums Judgements V. Krishnakumar vs State Of Tamil Nadu &Ors. One thing is clear about the disease, and this was not contested by the learned counsel for the respondents, that the disease occurs in infants who are prematurely born and who have been administered oxygen and blood transfusion upon birth and further, that if detected early enough, it can be prevented. It is said that prematurity is one of the most common causes of blindness and is caused by an initial constriction and then rapid growth of blood vessels in the retina. When the blood vessels leak, they cause scarring. These scars can later shrink and pull on the retina, sometimes detaching it. The disease advances in severity through five stages – 1, 2, 3, 4 and 5 (5 being terminal stage). Medical literature suggests that stage 3 can be treated by Laser or Cryotherapy treatment in order to eliminate the abnormal vessels. Even in stage 4, in some cases, the central retina or macula remains intact thereby keeping intact the central vision. When the disease is allowed to progress to stage 5, there is a total detachment and the retina becomes funnel shaped leading to blindness. There is ample medical literature on the subject. It is, however, not necessary to refer all of it. Some material relevant to the need for check up for ROP for an infant is: “All infants with a birth weight less than 1500 gms or gestational age less than 32 weeks are required to be screened for ROP.”[1] Applying either parameter, whether weight or gestational age, the child ought to have been screened. As stated earlier, the child was 1250 gms at birth and born after 29 weeks of pregnancy, thus making her a high risk candidate for ROP ”Visit In present case ROP related treatment not performed. In the circumstances, we consider it appropriate to apportion the liability of Rs. 1,38,00,000/- among the respondents, as follows: Rs. 1,30,00,000/- shall be paid by Respondent Nos. 1 and 2 jointly and severally i.e. The State of Tamil Nadu and the Director, Government Hospital for Women & Children, Egmore, Chennai; and Rs. 8,00,000/- shall be paid by Respondent Nos. 3 and 4 equally i.e. Rs. 4,00,000/- by Dr. S. Gopaul, Neo- pediatrician, Government Hospital for Women & Children, Egmore, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e. Dr. Duraisamy, Neo Natology Unit, Government Hospital for Women & Children, Egmore, Chennai. The above mentioned amount of Rs. 1,38,00,000/- shall be paid by Respondent Nos. 1 to 4 within three months from the date of this Judgment otherwise the said sum would attract a penal interest at the rate of 18% p.a. Image result for medical negligence No medical expert consulted Sikha Nayek vs. Dr. Manabesh Pramanik, where Their Lordships have held that ‘a case of medical negligence has to be proved by proper medical expert’s evidence; it cannot be based on mere statements of a patient or patient party.’ In the judgment passed by the Hon’ble National Commission, reported in 2004 CTJ, 175, (CP) (NCDRC), where Their Lordships have held that ‘As per settled law on medical negligence, it has to be alleged as to which action of the doctor was not as per accepted medical practice and what was done should not have been done or what was not done should have been done, this has to be supported by expert evidence or available medical literature on the subject. In the instant case the Complainant has failed to prove by adducing cogent evidence that the OP has failed to provide treatment as per accepted medical practice and what was done by him should not have been done. Moreover the Complainant has failed to prove the negligent treatment of the OP by adducing the expert evidence or by way of production of the standard medical text. Upasana Hospital and Another vs. S. Farook, reported in II (2007) CPJ 235 (NC), where the said Commission have held that without any expert evidence produced by the Complainant for alleged negligence, onus lies on the Complainant to prove the same and in this judgment the Hon’ble National Commission have relied upon the judgment passed by the Hon’ble Supreme Court in the case of Jacob Mathew vs. State of Punjub and Another, reported in 2005 CTJ 1085 (Supreme Court), (CP), where Their Lordships have held that ‘a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another’. “Bolam v Friern Hospital Management Committee”, (1957) 2 ALL ELR 118, which was accepted by the Hon’ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. The Hon’ble Supreme Court in the judgment Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others”, 2010(3) SCC 480 issued the guidelines that the following principles must be kept in mind while deciding whether the medical professional is guilty of medical negligence:- “I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional By-Adv. Nitish Banka 9891549997 nitish@lexspeak.in

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