CONDUCT
OF
A
PERSON
LEADING
TO
DAMAGES/INJURY
TO
A
PERSON
THE
PERSON
WHO
CAUSED
THE
DAMAGE/INJURY
IS
LIABLE
FOR
DAMAGES
CAUSED
MEDICAL
NEGLIGENCE
IS
WHEN
DUE
TO
ABSENCE
OF
REASONABLE
SKILL
AND
CARE
OF
A
DOCTOR
RESULTS
IN
BODILY
INJURY/DEATH
OF
A
PATIENT
MEDICAL
NEGLIGENCE
IS
CLASSIFIED
AS;
A)
CIVIL
MEDICAL
NEGLIGENCE
B)
CRIMINAL
MEDICAL
NEGLIGENCE
CIVIL
MEDICAL
NEGLIGENCE
TO
PROVE
CIVIL
MEDICAL
NEGLIGENCE
1. DOCTOR
OWED
A
DUTY
OF
CARE
2. THERE
WAS
A
BREACH
IN
THE
DUTY
OF
CARE
3. PATIENT
SUFFERED
DAMAGE/DEATH
4. DAMAGE/DEATH
WAS
A
RESULT
OF
THE
BREACH
OF
DUTY
(
Reasonable
proximate
connec2on
between
conduct
of
duty
and
damage)
• BEGINS
WHEN
A
DOCTOR
ACCEPTS
A
PATIENT
UNDER
HIS
CARE
• EVEN
IN
AN
EMERGENCY
SITUATION
• WITH
OR
WITHOUT
A
FEE
BEING
PAID
• DOCTOR
SHOULD
EXERCISE
A
REASONABLE
DEGREE
OF
SKILL
&
CARE
• DEGREE
OF
SKILL
AND
CARE
DEPENDS
ON
THE
DOCTOR’S
QUALIFICATIONS
(STANDING)
&
EXPERIENCE
1.
DOCTOR
OWED
A
DUTY
OF
CARE
• A
paFent
is
seen
at
the
OPD,
Clinic
in
a
state
or
private
hospital
• A
paFent
is
seen
by
a
GP
• A
paFent
at
the
A
&E,
ward,
OT
• A
doctor
aWends
to
an
emergency
situaFon
outside
hospital
2.
THERE
WAS
A
BREACH
IN
THE
DUTY
OF
CARE
?
• The
breach
in
the
duty
of
care
arises
when
the
doctor
fails
to
exercise
reasonable
degree
of
skill
and
care
• Degree
of
skill
and
care
to
be
given
depends
on
the
qualificaFons
and
experience
of
the
doctor
THERE
WAS
A
BREACH
IN
THE
DUTY
OF
CARE
?
• What
an
intern
medical
officer
could
do
in
a
given
situaFon
is
different
to
that
of
a
specialist
• Therefore
the
acFon
taken
by
the
doctor
will
be
decided
by
his
standing
THERE
WAS
A
BREACH
IN
THE
DUTY
OF
CARE
?
Contd.
• STANDARD
OF
CARE
GIVEN
BY
THE
DOCTOR
WILL
BE
COMPARED
WITH
THE
STANDARD
OF
AN
AVERAGE
&
COMPETANT
DOCTOR
OF
HIS
STATUS.
IF
THERE
IS
DEPARTURE
FROM
STANDARD
PRACTICE
• IN
DECIDING
THE
CASE
WILL
TAKE
INTO
ACCOUNT
AVAILABLE
RESOURCES;
personnel,
equipment
etc.
and
physical
surroundings
THERE
WAS
A
BREACH
IN
THE
DUTY
OF
CARE
?
Contd.
• Negligence
can
result
from
doing
something
which
an
average
doctor
wouldn’t
have
done
ex.
giving
a
wrong
drug
or
failure
to
do
something
which
would
have
been
done
by
an
average
doctor
in
a
given
situaFon
ex.
Failure
to
take
X-‐ray
and
missing
a
fracture
leading
to
a
deformity
The
doctor
will
not
be
found
negligent
for
failure
to
diagnose
a
disease/
failure
to
cure/ended
up
in
a
complicaFon
if
he
has
exercised
reasonable
degree
of
care
and
skill
and
followed
accepted
pracFce
There
are
complicaFons
and
risks
inherent
in
certain
procedures.
Doctor
should
take
appropriate
acFon
to
recFfy
it.
If
no
acFon
is
taken
he
will
be
guilty
of
negligence
When
a
doctor
goes
beyond
his
level
of
competence
and
a
paFent
develops
a
complicaFon
resulFng
in
injury/death
then
he
is
liable
for
medical
negligence.
Ex.
A
house
officer
decides
to
do
a
laparotomy
by
himself
without
calling
the
surgeon
When
a
doctor
knows
that
a
parFcular
condiFon
should
be
handled
by
a
different
specialist
he
should
refer
the
paFent
to
him
immediately
• Doctors
are
expected
to
keep
abreast
of
new
developments
but
it
is
impossible
to
read
all
new
literature
• But
specialist
doctor
is
expected
to
be
aware
of
new
well
established
means
of
therapy
or
operaFve
procedures
• Doctor
is
expected
to
take
a
detailed
history,
complete
physical
examinaFon,
order
relevant
invesFgaFons
and
arrive
at
a
reasonable
diagnosis
• Failure
to
make
a
diagnosis
does
not
amount
to
negligence
provided
he
has
used
reasonable
degree
of
skill
and
care
• Failure
to
do
a
relevant
invesFgaFon
such
as
X
-‐ray
in
trauma
case
and
paFent
ends
up
with
a
mal-‐united
fracture
will
amount
to
negligence,
not
doing
a
laparotomy
when
there
is
obvious
signs
of
bowel
rupture,
transfusing
HIV
or
HepaFFs
B
posiFve
blood
• Failure
or
delay
in
referring
a
paFent
to
another
specialist
may
result
in
serious
injury
or
death
ex.
When
EDH
or
ruptured
ectopic
pregnancy
is
suspected
by
a
physician
he
should
refer
to
neurosurgeon
or
gynaecologist
3.
PATIENT
SUFFERED
DAMAGE
• Damage
suffered
could
be;
A.
diminished
chances
of
recovery
B.
Prolonging
his
illness
C.
Increasing
his
suffering
D.
PaFent’s
death
If
the
paFent
didn’t
suffer
a
damage
then
the
doctor
cannot
be
guilty
of
negligence
Damages
suffered
by
patients
include;
• Physical
injury
or
mental
trauma
• Loss
of
earning
• Expenses
incurred
for
medical
treatment
• ReducFon
of
expectaFon
of
life
• Reduced
enjoyment
of
life
• Pain
and
suffering
• Death
4.
DAMAGE
WAS
DUE
TO
MEDICAL
NEGLIGENCE
• PATIENT
(PLAINTIFF)
MUST
PROVE
THAT
DOCTOR
FAILED
TO
PROVIDE
REASONABLE
DEGREE
OF
SKILL
AND
CARE
• AND
IT
WAS
THE
CAUSE
OF
THE
DAMAGE
SUFFERED
AND
NOT
ANY
OTHER
EVENT/ CAUSE
DAMAGES
CAN
RESULT
FROM;
• Failure
to
adopt
standard
pracFce
• If
there
was
no
informed
consent
• Fails
to
aWend
on
a
paFent
in
Fme
• Fails
to
review
the
paFent
frequently
as
required
by
his
condiFon
• If
he
fails
to
arrive
at
diagnosis
due
to
absence
of
skill
and
care
• If
fails
to
give
proper
instrucFons
• If
the
paFent
is
discharged
prematurely
CASE
OF
CIVIL
MEDICAL
NEGLIGENCE
• IS
FILED/HEARD
IN
A
CIVIL
COURT
• BURDEN
OF
PROOF
IS
ON
PLAINTIFF/ PATIENT
• NO
VIOLATION
OF
LAW
BUT
ABSENCE
OF
SKILL
AND
CARE
• DECIDED
ON
BALANCE
OF
PROBABILITIES
• LIABLE
TO
PAY
COMPENSATION
TO
PATIENT/NEXT
OF
KIN
CASE
OF
CIVIL
MEDICAL
NEGLIGENCE
WILL
REQUIRE
• Hospital
documents
BHT/Diagnosis
cards/ Clinic
cards/prescrip7ons
• Inves7ga7on
reports
CT
scan/X-‐ray/
angiograms/laboratory
test
etc.
• Opera7on
notes/charts/blood
transfusion
records
CASE
OF
CIVIL
MEDICAL
NEGLIGENCE
WILL
REQUIRE
contd.
• Evidence
from
doctors
who
treated
the
pa7ent
• Evidence
from
other
categories
of
staff
ex.
Nurses
• Plain7ff/defendant/courts
may
get
independent
medical
experts
to
give
evidence
Therefore
every
ac2on/decision
taken
during
treatment
should
be
recorded
in
BHT
contemporaneously
THE
AWARD
OF
COMPENSATION
If
medical
negligence
is
proved,
the
paFent
or
next
of
kin
is
compensated
monetarily
for;
• Loss
of
earnings
• ReducFon
of
expectaFon
of
life
• ReducFon
of
enjoyment
• AddiFonal
expenditure
incurred
for
hospital,
drugs,
equipment,
diet
etc.
• Pain
and
suffering
(physical
&
mental)
• Death
CASES
OF
NEGLIGENCE
ON
THE
RISE
DUE
TO
• BREAKDOWN
IN
COMMUNICATION
BETWEEN
DOCTOR
AND
PATIENT
• GENERAL
PUBLIC
MORE
AWARE
OF
MEDICAL
ISSUES
• INCREASING/UNREAL
EXPECTATIONS
OF
PATIENTS
• GREATER
AWARENESS
OF
LITIGATION
• INCREASING
COST
OF
MEDICAL
CARE
• MORE
LAWYERS
ENGAGED
IN
LITIGATION
DOCTOR’S
DEFENCE
IN
CASES
OF
MEDICAL
NEGLIGENCE
1. “Volen7
non
fit
injuria”-‐
TREATMENT
WAS
CARRIED
OUT
BECAUSE
THE
PATIENT
GAVE
INFORMED
CONSENT
2. DUTY
DISCHARGED
UNDER
LESS
THAN
IDEAL
CONDITIONS
–
lack
of
staff/equipment/drugs
3. DOCTOR
MAY
BLAME
ANOTHER
DOCTOR/ NURSE
FOR
THE
FAILURE
ex.
Failure
to
inform
the
condi7on
of
the
pa7ent
4. CONTRIBUTORY
NEGLIGENCE
–
there
was
lack
of
coopera7on
from
pa7ent
&
complica7ons
arose
DOCTOR’S
DEFENCE
IN
CASES
OF
MEDICAL
NEGLIGENCE
contd.
5.
INEVITABLE
ACCIDENT/MISADVENTURE
–
no
fault
on
the
part
of
staff
ex.
anaphylac7c
reac7on
to
a
drug
6.
VICARIOUS
LIABILITY
–
Doctor
claims
that
injury
was
due
unavailability
of
other
staff/instruments
/drug/blames
other
staff
7.
DEFENCE
OF
PRODUCTS
LIABILITY
–
Doctor
acributes
injury
to
pa7ent
due
to
a
defec7ve
instrument
or
sub-‐standard
drug
8.
DENIAL
OF
NEGLIGENCE
Doctrine
of
“Res
Ipsa
Loquitur”
• Means
facts
speak
for
themselves
• The
outcome
of
the
negligence
is
so
obvious
there
is
hardly
anything
to
prove
• In
these
types
of
cases
there
is
presumpFon
of
negligence
by
the
doctor/other
staff
• Damage
was
a
direct
result
of
a
negligent
act,
defendant
had
exclusive
control
over
the
act
and
there
was
no
contributory
negligence
• Ex.
Failure
to
remove
swabs
during
a
laparotomy,
mismatched
blood
transfusions
CRIMINAL
MEDICAL
NEGLIGENCE
TO
PROVE
CRIMINAL
MEDICAL
NEGLIGENCE
1. DOCTOR
OWED
A
DUTY
OF
CARE
2. THERE
WAS
A
BREACH
IN
THE
DUTY
OF
CARE
3. PATIENT
SUFFERED
DAMAGE/DEATH
4. DAMAGE
WAS
A
RESULT
OF
THE
BREACH
OF
DUTY
(
Reasonable
proximate
connec2on
between
conduct
of
duty
and
damage)
5.
RASH
AND
NEGLIGENT
ACT
WITH
GROSS
DISRESPECT
FOR
HUMAN
LIFE
CRIMINAL
MEDICAL
NEGLIGENCE
• CRIMINAL
NEGLIGENCE
IS
WHEN
THERE
IS
GROSS
DISRESPECT
FOR
THE
PATIENT’S
SAFETY/LIFE
WITH
LACK
OF
COMPETENCY
AND
RESORTING
TO
RASH
AND
NEGLIGENT
ACT
• INVOLVES
SUCH
A
DEGREE
OF
RECKLESSNESS
EVEN
EXPOSING
THE
PATIENT
TO
EXTREME
DANGER
OR
DEATH
CRIMINAL
MEDICAL
NEGLIGENCE
contd.
• Would
include
following
situa7ons;
• A
doctor
not
answering
a
call
to
acend
on
a
bleeding
pa7ent
who
subsequently
dies
• A
surgeon
operates
under
the
influence
of
alcohol
and
punctures
major
blood
vessel
and
results
in
death
due
to
bleeding
• Amputa7on
of
a
wrong
limb
• Administra7on
of
a
wrong
dose
of
anaesthe7c
drug
by
the
anaesthe7st
causing
death
• Criminal
negligence
is
much
more
serious
than
civil
negligence
• ProsecuFon
will
be
by
the
state
• Doctor
can
be
charged
under
criminal
law
secFons
298,
327-‐329
of
the
Penal
Code
in
a
criminal
court
• Level
of
proof
required
is
“proof
beyond
reasonable
doubt”
• Punishment
could
be
fine/imprisonment
or
both
• Prosecuted
in
a
criminal
court
NO
DUTY
OF
CARE
WHEN;
• DOCTOR
EXAMINES
PATIENTS
FOR
MEDICO-‐LEGAL
PURPOSES