Professional negligence

Q) Define professional/medical negligence? What are salient features and the 4 components of medical negligence?
A) (I) Definition – (a) Professional or medical negligence or malpraxis is absence of reasonable care and skill, or willful negligence of a
medical practitioner in the treatment of a patient, which causes injury or death of the patient.
(b) Doing something that one is not supposed to do [act of commission] and failing to do something that one is supposed to do [act of
omission].
(c) Alternative definition – Negligence in medical practice may be defined as the omission to do something which a reasonably competent
medical practitioner, guided by the prevailing standard of medical knowledge and practice and such other considerations, which ordinarily
should regulate the conduct of a medical man, would do, or doing something which such a reasonably competent medical man would not do,
leading to some harm or damage to the patient.
(d) Medical negligence is part of the law of torts. A tort is a civil wrong for which the sufferer can seek compensation through legal action.

(II) Salient features of Medical negligence:

(1) Reasonable care – also called “due care”. Elements of reasonable care are –
(a) Includes such a reasonable care and attention for the safety of patient as their mental and physical condition may require.
(b) Must anticipate and appropriately manage known, expected or foreseeable events and complications of patient's disease and treatment
(c) It should be proportionate with:
(i) Qualification & degree of competence: The doctors are expected to keep well-informed of changing concepts and new developments and to
follow general lines of treatment, though they are not expected to be aware of every development in medical science. The degree of
competence is not a fixed quality, but varies according to the status of the doctor. A house-surgeon is not expected to possess the same skills
as a consultant surgeon, but he is expected to limit his activities (except in emergencies) to a level of medical care which is within his
competence. A general medical practitioner is expected to use only the average degree of skill and knowledge possessed by doctors with the
same or similar training, experience and knowledge in the same or similar circumstances in the specific geographic location in which the
physician provides medical treatment (locality rule) [eg an MCh is expected of a higher level of skill than an MS, who in turn has a higher level
of skill than MBBS]. For the same level of negligence, an MCh may be held responsible, but not MBBS.
(ii) Known inability of the patient to take care of himself - eg unconscious patient requires higher level of care and attention than a conscious
patient.

(d) When is it breached? - Reasonable care is breached in 2 situations (i) when doctor unjustifiably deviates from accepted methods,
practices, procedures and treatments, (ii) when he used accepted methods but does so unskillfully.

(2) Free service - Doctor provided free medical service -> injury or death of patient occurred -> doctor still liable to be prosecuted under
criminal law, but cannot be made to pay compensation under COPRA

(3) Components of medical negligence - For a case of medical negligence to be established, the following components must be present
(4Ds). These are Duty, Dereliction of Duty, Damage, and Direct Causation. These are the components required for civil compensation. For
criminal charges they don’t apply.

(4) Liability for negligence arises if the following 4 Components are satisfied:
(i) Duty - Existence of duty of care by the doctor.
(a) The doctor begins to owe a duty towards a patient (1) as soon as he agrees to treat him (2) when he is in emergency. A duty is created
where there is an offer to treat/care, i.e. ‘therapeutic intent’ forms the key issue that is instrumental in establishing doctor–patient relationship.
A doctor-patient relationship between the doctor and the patient is established at that point in time.

(b) A doctor, who agrees to give medical advice and treatment, impliedly undertakes that he is possessed of skill and knowledge for the
purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a
duty of care in deciding what treatment to give, or a duty of care in the administration of that treatment. A breach of any of those duties
becomes negligence.

(c) Doctor-patient relationship is not formed when patient is not in emergency and the doctor did not agree to treat the patient.

(d) If the patient is in emergency, the doctor must treat him; otherwise charges of criminal negligence may be brought against him, especially if
the patient dies. The doctor can ask for his fees later, and may even sue the patient if his fee is not paid.

(e) In 1989, in Pt. Parmanand Katara v. Union of India & others 1989 AIR 2039, the Supreme Court declared that every person has a right to
life under Article 21 of the Indian Constitution. Doctor cannot refuse to treat a patient who is in emergency. The case was prompted by the
death of a scooterist who was knocked down by a speeding car. When he was taken to the nearest hospital, the doctors refused to attend on
him; they told that he be taken to another hospital, located some 20 kilometers away. The victim succumbed to his injuries before he could be
taken to the other hospital. Supreme Court repeated its stance in 1996 in Paschim Banga Khet Mazdoor Samity & Others v State of West
Bengal & Another 1996 AIR SC 2426.

(ii) Dereliction of Duty

Physician must conform to standard of a “prudent physician” under similar circumstances ideally. Once the presence of duty has been
established, for negligence, there has to be a dereliction of duty on the part of the doctor, i.e. the doctor should have been negligent in
performing his duties towards the patient. The failure on the part of the doctor to maintain applicable standard of care and skill.

(iii) Damage:
(1) The damage must occur as a result of dereliction, and it must be of type that would have been foreseen by a reasonable physician.
(2) Even if doctor is negligent, patient cannot sue him for compensation, if no damage has occurred.
(3) The patient must show the existence of an actual physical, psychological or emotional or other injury which can be measured and
compensated in terms of money. He can however be sued criminally u/s 336 IPC.
(4)Some examples of possible damages are:
(i) Aggravation - of a preexisting condition
(ii) Diminishing patient's chances of recovery
(iii) Expenses incurred- eg hospital and medicine expenses, special diet etc
(iv) Pain and suffering- causing either physical or mental [embarrassment, fright, humiliation] pain or increasing it
(v) Loss of earning- due to absence from work
(vi) Loss of potency
(vii) Prolonging his illness
(viii) Reduced enjoyment of life- eg loss of a limb or sense
(ix) Reduction in expectation of life
(x) Death

(iv) Direct Causation

(1) Damage must result directly from dereliction [proximate cause], and not from any other cause.
(2) Proximate cause [also called legal cause] refers to a cause, which in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the injury would not have occurred.
(3) The patient must show that a reasonably close and causal connection exists between the negligent act or omission and the resulting injury
without any intervening cause.

Few examples to understand:

Ex 1 (Duty): Patient comes to a doctor for treatment of itch -> Doctor demands his professional fee -> Pt is not able to give -> Doctor refuses
treatment -> Pt does not take treatment from elsewhere After some time the patient suffers severe injury -> Pt cannot sue doctor, because no
duty was established.

Ex 2 (Duty): Pt is brought to a doctor with 100% bums -> Doctor demands his professional fee -> Pt is not able to give -> Doctor refuses
treatment -> The patient dies -> The doctor can be sued, because the patient was in emergency and the doctor cannot refuse to treat
emergency.

Ex 3 (Dereliction): Cancer patient comes to a doctor for treatment -> The doctor agrees to treat him (duty is established)-> gives proper and
judicious treatment -> However the patient dies after some time -> The patient cannot sue the doctor, because there was no dereliction.

Ex 4 (Damage): Patient of viral fever comes to a doctor -> The doctor starts treatment for tuberculosis, despite there being no signs or lab
reports indicating it (dereliction occurs) -> After the patient becomes well, he comes to know that the doctor had given him wrong medicines-
> The patient cannot sue the doctor despite the fact that dereliction was there, because no damage occurred as a result.

Ex 5 (Direct causation): Patient comes to doctor with a lacerated wound -> Doctor agrees to treat him (duty is established) -> However the
doctor fails to stitch the lacerated wound (dereliction occurs) -> Afterwards the patient goes to a quack who applies cow dung over it -> The
patient develops infection (damage occurs) -> Patient sues first doctor for not stitching the laceration -> He cannot succeed because
although, there was duty, dereliction and even damage, but damage was not a direct cause of doctor’s dereliction.

(5) Burden of proof:

(i) The burden of proving negligence lies on the plaintiff (patient).
(ii) Burden of proof is the need or duty to establish proof of the facts at trial.
(iii) In order to establish negligence, it is not necessary to prove that the negligent party had bad motive or intention.
(iv) The essential issue that decides a case of negligence is whether a reasonably competent medical man would have acted in more or less
the same manner in which the doctor against whom negligence is alleged had acted.
(v) The patient should prove all four elements of negligence by a preponderance of the evidence.
(vi) It requires enough proof to show that it is more likely than not, that each of the 4 elements of a negligent claim is true.

(6) Proof of cause in fact:

(a) “But for” test – If it is more likely than not, but for the doctor’s breach of duty the patient would not have been injured.
(b) Increased the risk or multiplied the risk test : It is more likely than not, that the doctor's breach of duty increased the risk of the patient
being injured

(7) The fact that the unauthorized additional treatment or surgery is beneficial to the patient, or that it would save considerable time and
expenses to the patient, or would relieve the patient from pain and suffering in future are not grounds of defence and amount to an act of
assault and therefore deficiency in service.

(8) A doctor is not liable :

(i) For an error of judgment or of diagnosis, if he has acted with ordinary care and secured all necessary data on which to base a sound
judgment. For the treatment of a disease or injury, the doctor may adopt the one which in his judgment will be more effective and appropriate.
In such case, the doctor is not liable for an injury resulting from an error in his judgment.
(ii) For failure to cure or for bad result that may follow, if he has exercised reasonable care and skill.
(iii) If he exercises reasonable care and skill, provided that his judgment conforms to the accepted medical practice, and does not result in the
failure to do something or doing something contrary to accepted medical practice
(iv) No doctor ensures success either in his diagnosis or in his treatment. There is always room for a difference of opinion among doctors. Bad
results are not necessarily due to negligence, e.g. some patients may be keloid formers.

(9) Law considers doctor negligent only when:

(i) He did not consider the possibility that such a complication might occur,
(ii) That he failed to watch for it carefully or to recognize it promptly.
(iii) Failed to treat in a timely and appropriate fashion
(iv) Dereliction of duty in deciding (a) whether to undertake the case, (b) what treatment to give, (c) delay in administration of that treatment
will support negligence.
(v) In order to establish liability by a doctor, where a departure from normal practice is alleged, it must be established: (a) that there is a usual
and normal practice, (b) that practice was not adopted, and (c) that the course adopted is one, no professional man of ordinary skill would have
taken, if acting with ordinary care.

(10) Inherent risks: Some risks are inherent in any form of treatment and the doctor will not be negligent if they cause damage, provided that
he has taken proper precautions, e.g., broken needle during injection. If the needle breaks, the patient should be informed and arrangements
made to remove the broken piece. The doctor becomes negligent, if he fails to observe that the needle has broken, or having noted this, does
not inform the patient or make arrangements to prevent further damage.

(11) Standard of care: The same high degree of skill or standard of care is not expected from a doctor practicing in some remote village or
town, as is expected of a doctor on the staff of a hospital in a city. A specialist must maintain standards of skill in diagnosis and treatment
above those of the ordinary general practitioner. If a doctor claims to possess superior skill, knowledge, experience or training, he will be
judged according to those standards even in its absence. If a general practitioner treats as a specialist, a case that clearly lies within a
specialized medical field, he will be held liable for failure to use skill equal to that of a specialist. The standard of care while assessing the
practice as adopted, is judged in the light of knowledge available at the time of the incident and not at the time of trial. Similarly, when the
charge of negligence arises out of failure to use some particular equipment, the charge would fail, if the equipment was not generally available
at that particular time, i.e. at the time of incident. In a personal injury case, the fact that the patient's injuries become serious by his own
predisposition or weakness does not diminish the extent of damages.
(12) Liability for injury to third parties: Where a doctor examines a patient for some purpose other than providing advice and treatment, no
doctor–patient relationship is established and thus no duty of care exists. A doctor conducting a medicolegal examination for any purpose
(such as insurance, determination of disability, etc.) is not there in his capacity as a ‘healer’ and no duty of care arises When a doctor performs
an examination at the request of a third party for sole use by third patty, e.g. to determine eligibility for employment, evaluation of disability,
insurance, drunkenness, etc., i.e. to examine the patient for non-therapeutic purposes, no physician - patient relationship is established. The
employed physician owes no duty to the examinee other than to avoid causing an injury, but is under a duty to use reasonable care to avoid
injury. Physician's duty is owed to his employer

Q) Enumerate and explain various types of negligence?

A) 5 types of negligence: (I) Medical negligence [Doctor’s Negligence] – (1) Civil negligence, (2) Criminal negligence, (II) Patient negligence,
(III) Contributory negligence, (IV) Composite negligence, (V) Corporate negligence

(I) Medical Negligence (MALPRAXIS)

(1) Civil Negligence (Civil Malpraxis) - Civil negligence is said to occur when patient, or in case of death, any relative brings suit in a civil court
for monetary compensation for the damage that he has suffered due to the doctor's negligence. Civil negligence comes under tort law.
Salient features: (1) Question of civil negligence also arises - when patient refuses to pay doctor's fees alleging negligence, and doctor brings
a civil suit against patient to recover his fees
(2) Court - The case goes either to civil court or to consumer forum.
(3) Punishment - The doctor only has to pay whatever compensation the court decides. There is no criminal liability for him and he cannot be
sent to jail for his action.
(4) Additional punishments - However if the patient complains to medical council also, it can take action against the doctor and can punish him
accordingly (e.g. removal of name from medical register temporarily or even permanently)
(5) Standard of proof [Burden of proof] - Rests on preponderance of evidence [syn "balance of probabilities"] i.e. there should be >50%
probability of the doctor being negligent in his conduct. It is the duty of the patient to prove all the 4 elements of negligence.
(6) Injury: The patient must show the existence of an actual physical, psychological or emotional or other injury, which can be measured and
compensated in terms of money.
(7) Liability – Medical negligence is a part of the law of the torts. A tort is a civil wrong for which the sufferer can seek compensation through
legal action. The amount of damage done is a measure of the extent of the liability.
(8) Defenses (i) Informed consent (ii) Contributory negligence

(2) Criminal Negligence (Criminal Malpraxis) Criminal negligence is that when patient complains to the police regarding the misconduct of the
doctor; and the police register a case against the doctor.

Salient features:
(1) Question of criminal negligence may arise when:
(a) When a doctor shows gross absence of skill or care during treatment resulting in serious injury to or death of the patient, by acts of
omission or commission.
(b) When a doctor performs an illegal act.
(c) When an assaulted person dies, the defence may attribute the death to the negligence or undue interference in the treatment of the
deceased by the doctor
(2) Conditions to be satisfied for criminal negligence:
(a) indifference to an obvious risk of injury to health
(b) actual foresight of the risk, but continuation of the same treatment,
(c) appreciation of the risk and intention to avoid it, but showing high degree of negligence in the attempted avoidance
(d) Inattention or failure to avoid, a serious risk which went beyond mere inadvertence in respect of an obvious important matter.

(3) Occurrence of criminal negligence:

(a) Criminal negligence occurs when the doctor shows gross lack of competence, or gross inattention or inaction, gross recklessness, or
wanton indifference to the patient's safety, or gross negligence in the selection and application of remedies.
(b) It involves an extreme departure from the ordinary standard of care.
(c) Criminal negligence cases are very rare, and are practically limited to cases in which the patient has died.
(d) In order to establish criminal liability, the facts must be such that the negligence of the accused went beyond a matter of compensation
between persons and showed such disregard for the life and safety of others as to amount to a crime against the State, and conduct deserving
punishment.

(4) Conditions where doctor will not be criminally liable: A doctor will not be criminally liable if a patient dies due to an error of judgment or
carelessness or want of due caution, though he can be liable to pay compensation.
(5) Common reason for criminal negligence - Most of such cases are associated with drunkenness or with impaired efficiency due to the use of
drugs by doctors.
(6) Law for criminal negligence: S. 304, A. I.P.C. deals with criminal negligence. "Whoever causes the death of any person by doing Any rash
or negligent act not amounting to culpable homicide shall be punished with imprisonment up to 2 years, or with fine, or with both". According to
S.375, CrPC., in addition to imprisonment or other penalty prescribed by the I.P.C., compensation may also have to be paid to the victim of
criminal negligence
(7) Examples: (i) Amputation of wrong finger or operation on wrong limb or wrong patient.
(ii) Leaving instruments, tubes, sponges or swabs in abdomen.
(iii) Grossly incompetent administration of a general anaesthetic by a doctor addicted to the inhalation of anaesthetic.
(iv) Gross mismanagement of the delivery of woman especially by a doctor under the influence of drink or drugs.
(v) Performing criminal abortion.
(vi) Administration of a wrong substance into the eye causing loss of vision.
(vii) Death resulting from an operation or injection of any drug producing anaphylaxis by a quack is considered criminal negligence.

(8) Who fights the case - State i.e. the government [not the suffering patient] fights the case against the erring doctor.

(9) Standard of proof - In criminal negligence - in contrast to civil negligence - the burden of proof that is required to prove the guilt is "beyond
reasonable doubt". There should be >99% probability of the doctor being guilty. The test is therefore more severe than the one applied for
civil negligence

(10) A case of medical negligence can be fought in both civil and criminal courts simultaneously. Cases have occurred where in the same
case, a doctor has been judged liable by the civil court, but not liable by the criminal court. This happens because of stricter standards of
culpability applied in criminal courts (99% v. 50%). A patient may decide to sue a doctor only in a civil or criminal court. In India poor patients
generally are interested only in monetary compensation, and not in criminal prosecution of the doctor, even in cases of deaths.
(11) Supreme court guidelines: According to the guidelines of supreme court of India-
(i) A private complaint against a doctor may not be entertained unless the complainant has produced prima facie evidence before the court in
the form of credible opinion given by another competent doctor to support the charge of rashness or negligence.
(ii) The investigating officer before proceeding against the doctor accused of rash or negligent act should obtain an independent medical
opinion preferably from a doctor in government service.
(iii) A doctor accused of rashness or negligence might not be arrested routinely, unless his arrest is necessary for furthering the investigation or
for collecting evidence or the I.O. is satisfied that the doctor would not make himself available to face prosecution.

(12) Investigation: (i) Note the circumstances in which death occurred and the facilities available for treatment.
(ii) Samples of drugs and i.v. fluids should be collected and sent to the laboratory to exclude adulteration, contamination and chemical
Identification. (iii) Statement of witness should be recorded.
(iv) A team of doctors should conduct autopsy, and all necessary laboratory investigations should be done.
(v) An impartial expert in the same field should study the case sheet.

(3) Classification of criminal negligence cases:

(i) When no injury to the patient occurs (S.336, IPC) - Negligent action but no injury -> Patient cannot claim compensation, but he can still
lodge a criminal complaint against him under S.336, IPC if the doctor's conduct was so rash or negligent as to endanger patient's life or his
personal safety. Punishment is imprisonment of 3 months, or Rs. 250 fine, or both. Ex: Doctor conducts a delivery under influence of alcohol -
> Delivery occurs safely. The doctor is yet liable to be charged under section 336, IPC, because he was rash and negligent in attending a
patient under influence of alcohol, and he put her life in danger.

(ii) When injury occurs to the patient -Further subdivided into following:

(a) When hurt is caused to the patient (S.337, IPC) – Negligent action-> patient suffers hurt -> S.337, IPC. Punishment is imprisonment of 6
months, or Rs. 500 fine, or both. Ex: Doctor does not test for penicillin sensitivity -> Gives injection -> patient suffers from anaphylaxis-> saved
by doctor-> patient does not die -> the doctor is still liable to be charged under this section, because the patient suffered from hurt

(b) When grievous hurt is caused to the patient (S.338, IPC) - Negligent action -> Patient suffers grievous hurt -> 338, IPC. Punishment is
imprisonment of 2 years, or Rs.1000 fine, or both. Ex: Doctor amputates a wrong leg, or removes the wrong kidney -> He is liable to be
charged under this section, because patient has suffered grievous hurt.

(c) When death is caused (S.304A, IPC) - Negligent action -> Death of patient -> S.304A, IPC. The punishment is imprisonment of 2 years, or
fine (any amount) or both. Ex: Doctor does not test for penicillin sensitivity -> Gives injection -> patient suffers from anaphylaxis and dies ->
the doctor is liable to be charged under this section.

Differences between civil and criminal negligence

S Feature
No
1 Offence
2 Negligence and
Civil negligence Criminal negligence
No specific and clear violation of law need to be Must have specifically violated a particular criminal
proved law in question
Simple absence of care and skill. Damage to the Gross negligence, inattention or lack of competency.
 damage patient is generally minor (e.g. the patient was unable Damage to the patient is generally very gross and
to attend office for a few days) scant regard for patient’s welfare (e.g. a wrong leg
was amputated, or death was caused)
3 Action of patient Patient brings suit in a civil court seeking monetary Patient complains to the police
compensation
4 Complainant Patient State

5 Prosecuting lawyer Lawyer engaged by patient Public prosecutor

6 Case citation and Patient v. doctor, litigation between 2 parties State v. doctor, litigation between state and doctor
litigation
7 Trial by civil court (under tort law) or consumer forum Criminal court
(under the Consumer Protection Act 1986 )
8 Who is sued The injured party has an option to sue specific person Every person is responsible for his own act. And,
or those falling in the chain of events. there must be some personal act.
9 Actual There can be no civil action for negligence if the Bare negligence involving the risk of injury is
Injury/damage negligent act or omission has not been attended by an punishable criminally, though nobody is actually hurt.
injury/harm/damage to the patient.
10 Conduct of It is compared to a generally accepted simple standard Not compared to a single test.
physician of professional conduct
11 Action by the court The court asks doctor to pay monetary compensation. The doctor may be awarded fine as well as
No imprisonment is given to the doctor imprisonment by the court
12 Level of proof There should be a "balance of probabilities" in favor of The doctor's guilt must be proved beyond reasonable
negligence (>50% probability). Less effort on part of doubt (>99%). Greater effort required to prove
patient to prove negligence. Strong evidence is negligence. (That is why generally in damages of a
sufficient. minor nature, the patient may seek only civil
compensation and may not go to the police at all)
13 Doctor’s defence Informed consent and contributory negligence Informed consent and contributory negligence not
are good defenses good defenses
(II) Patient negligence: [Write a short note on patient negligence?]
(1) Patient negligence is outright negligence by patient only. Doctor is not negligent.
(2) Salient features: (a) Doctor is not liable in such cases
(b) Examples: (i) Patient do not give correct history. If the patient provides incomplete or inadequate information. It could result in misdiagnosis,
mistreatment and harm.
(ii) starts an alternative form of treatment without informing doctor
(iii) does not follow doctor's instructions and failure to cooperate with his doctor in carrying out all reasonable and proper instructions - Doctor
prescribes tetracycline to a patient -> specifically instructs him not to take the drug with milk -> patient thinks taking medicines with milk is
healthier -> takes medicine with milk -> Absorption of tetracycline affected -> suffers injury -> patient negligence ,
(iv) discontinues treatment
(v) refusal to take the suggested treatment
(vi) failure to seek further medical assistance if symptoms persist
(vi) LAMA - Leaving [hospital] Against Medical Advice

(III) Contributory negligence: [Write a short note on contributory negligence? What is Good Samaritan doctrine? What are limitations of
contributory negligence?]

Definition – (i) Contributory negligence is the name given to a situation, where both doctor and the patient are negligent.
(ii) Contributory negligence is any unreasonable conduct, or absence of ordinary care on the part of the patient, or his personal attendant,
which combined with the doctor's negligence, contributed to the injury complained of, as a direct, proximate cause and without which the injury
would not have occurred.

Salient features:
(1) Examples: (i) Doctor applies tight plaster cast on patient's leg [doctor negligent], but instructs him to report numbness -> Patient develops
numbness in his toes-> does not inform doctor [patient negligent] -> suffers permanent injury -> Doctor entitled to the defense of contributory
negligence,
(ii) Doctor prescribes drug -> fails to inform the patient of its side effects [doctor negligent]-> patient starts getting side effects-> fails to inform
the doctor [patient negligent]-> suffers injury -> contributory negligence

(2) Proximate cause - As such, the doctor's negligence is not the direct, proximate cause (actual or legal cause) of the injury suffered by the
patient. Proximate cause means, that which in natural and continuous sequence unbroken by any efficient intervening cause produces the
injury, and without which the result would not have occurred. If the doctor and the patient are negligent at the same time, it is a good defence
for the doctor. The doctor cannot plead contributory negligence, if he fails to give proper instructions.

(3) Burden of proof - lies entirely on the doctor

(4) Liability of the doctor - The extent of contributory negligence may vary and with it will vary the doctor's liability, from complete non-liability
to a substantial liability for damages. Normally, contributory negligence is only a partial defence, and the Court has right to fix liability between
the parties (doctrine of comparative negligence), and damages awarded may be reduced accordingly. Doctrine of comparative [or
proportionate] negligence – Quantum of injury caused by patient's and doctor's negligence is decided by the court and the compensation
awarded accordingly. If, say, patient's negligence is responsible for 80% of his injury, and doctor's negligence for 20%, patient would be
entitled only to 20% of the compensation.

(5) Contributory negligence is a good defense in civil cases, but cannot be taken as a defense in criminal cases.

(6) Limitations to the doctrine of contributory negligence (or exceptions to contributory negligence):
(i) Last clear chance doctrine –
(a) Both doctor and patient are negligent.
(b) But if it is shown that the defendant (doctor) had a "Last Clear Chance" to avert the damage caused to the patient, and he did not avail of
this chance, he loses his defense of contributory negligence.
(c) Doctor discovered the danger while still there was time to avoid the injury and failed to do so.
(d) Example: Doctor prescribes drug to patient-> fails to inform of side-effects [doctor negligent]-> Patient develops rashes, but fails to inform
doctor [patient also negligent, so concept of contributory negligence comes into play]-> Patient visits doctor on the next date-> doctor sees
rashes-> fails to take remedial action -> Patient suffers injury-> sues doctor-> Doctor takes plea of contributory negligence.
(e) Analysis - Patient can allege that the doctor had the “last clear chance” to avoid injury, because on the patient’s next visit, the doctor did
see his rashes and yet did not do anything.

(ii) Doctrine of Avoidable Consequences Rule-

(a) Once plaintiff (patient) has been injured; he must take reasonable steps to lessen the consequences of his original injury. A defendant
(accused) will not be liable of any further injury that the plaintiff could have reasonably avoided.
(b) Both parties are negligent, but patient could have avoided his own injuries by being more careful [It is in fact a variation of the Last clear
chance doctrine" in as much as he himself had the "last chance" to avoid injuries]. It is the negligence of the patient which aggravated the
damage already caused by negligence of the doctor, which could have been avoided if the patient was not negligent afterwards.
(c) He could have avoided the consequences of doctor's negligence, but he did not carefully act upon it. So he himself is responsible for his
injuries and doctor need not pay.
(d) Example: Doctor does not apply bandage and antibiotics to a gaping lacerated wound (doctor negligent)-> He however advises the patient
not to allow the wound to get contaminated, and visit him next week to get his wound examined again -> patient comes home and thinks that
applying cow dung would heal his wound faster-> applies cow dung on his wounds -> develops pus, but he does not contact the doctor. Nor
does he visit the doctor next week, as was advised by the doctor (patient negligent) -> Patient suffer injury.
(e) Analysis - Here both doctor and patient are negligent and normally the compensation should have been shared between the doctor and the
patient. But since the patient aggravated his own injury by doing something which was avoidable, the doctor would be covered under the
“avoidable consequences rule” and he does not have to pay anything.

(iii) Good Samaritan doctrine – One who assists another who is in serious danger cannot be charged with contributory negligence, unless the
assistance is rash or reckless.

(IV) Composite negligence [Write a short note on composite negligence?]

Definition - Composite negligence is said to occur, when a patient suffers injury as a result negligent act of more than one doctor without the
negligence of patient.
Salient features:
(1) Damages are not distributed; only the total sum is awarded. It’s the sufferer who, if he wishes, can even claim all the damages from a single
person.
(2) If a specialist feels he has been asked to pay more than justified, he can claim contribution from other specialists.

(V) Corporate negligence –

(1) Corporate negligence is the negligence of a corporation [hospital]. The theory of corporate liability is typically applied in cases involving
hospitals and their staff physicians. The individual doctor may or may not necessarily be liable in this case.
(2) Hospitals have independent duty to their patients to investigate the adequacy and review the competence of their staff physicians. This
theory is based on the principle that hospitals are in a far better position than their patients to supervise a physician's performance and provide
quality control.
(3) Negligent credentialing - This legal theory has been used to attack the allegedly negligent selection, retention, or supervision of its
participating physicians, that is negligent credentialing. It is the failure of those persons who are responsible for providing the accommodation,
facilities and treatment to follow the established standard of conduct
(4) Corporate negligence occurs when hospital fails in some other manner to meet the accepted standard of care and such failure results in
injury to a patient to whom the hospital owes a duty. Examples are:-
(i) hospital uses defective or poorly maintained equipment or drugs,
(ii) selects or retains incompetent employees,
(iii ) doesn’t keep oxygen cylinders in ICU ,
(iv) does not maintain sterile OT
(5) In the corporate sector (hospital, nursing home, etc.)., where more than one person in more than one level fails to render appropriate
service to the patient, may result in some damage to patient. Here the treating doctor and also other category of persons who were negligent
will be held responsible.
(6) If a hospital knows or should have known, that one of the patients is likely to be a victim of professional negligence by a doctor on its staff,
the hospital is liable, even though that doctor is an independent with staff privilege at the hospital.
(7) If the doctor is employed by patient in private capacity, and the hospital only provides facilities for treatment, the doctor alone is held
responsible for any negligence.
Q. Write a short note on Vicarious Liability?
A. (I) Definition – (1) Vicarious liability [syn vicarious responsibility,VL] means that a person is liable for the wrongful acts or omissions of another.
(2) “Vicarious liability” is “the imposition of liability on one person for the actionable conduct of another, based solely on the relationship between the
two persons; indirect or imputed legal responsibility for the acts of another; for example, the liability of an employer for the acts of an employee, or,
a principal for the torts or actions of an agent.
(3) The principle of vicarious liability is based on a latin maxim “qui facit per alium facit per se” which describes that the one who acts through
another act in his or her own interest

(II) Salient features:

(1) Respondeat superior [RS]- [lit, let the superior reply or let the master answer] Vicarious liability arises under the principle of respondeat
superior. The principle of RS holds that the employer is responsible not only for his own negligence but also for the negligence of his employees, if
such acts occur in the course of the employment and within its scope.
(i) Physicians usually employ or supervise other less qualified health team members. They, therefore, owe their patients the duty in assigning
supervision to the nurses or subordinate staff properly
(ii) Also known as “captain of the ship” doctrine. This doctrine holds a doctor liable based on the legal action that he or she exercises absolute
control much like the captain of a ship at sea who is responsible for all the wrong perpetrated by the crew.
(iii) RS becomes applicable when the superior had the "right, ability or duty to control" the activities of a violator.
(iv) Difference between the two terms - RS is the principle, while VL is the liability it puts on a superior
(v) RS principle ensures (a) that employers engage the best possible talent in their hospital (b) that patient gets enough compensation due to him.
Individual negligent doctor may not have enough funds to pay the patient, but hospital has. Also known as “doctrine of deep pockets”. Hospital
has more money or “deep pockets” so to say to compensate the patient.

(2) Preconditions: (i) There must be an employer - employee relationship. It does not matter whether they are permanent, temporary, resident or
visiting, full time or part time.
(ii) Employee's conduct must occur within the scope of his employment [i.e. employee did what he was legally supposed to do] and
(iii) It should occur while on the job.

(3) Establishing vicarious liability: A plaintiff claiming compensation for vicarious liability bears the burden of proving not only that the physician
was an agent, servant, or employee of the entity but also that the physician was acting in the course and scope of his or her employment at the time
of the alleged malpractice.

(4) Liability and Compensation:

(i) Doctrine of vicarious liability is not applicable to criminal liability
(ii) Both the negligent doctor as well as his employer may be asked to compensate patient by the court, because the employee may lack funds for
paying the damages.
(iii) Usually, liability will be fixed upon those actually at fault, and those whose control over the negligent is proved. The employer may be ordered by
the Court to pay compensation to the injured patient
(iv) Employer may engage in a separate "third party proceeding" against the negligent doctor or employee to recover money.

(5) Relationships when one is vicariously responsible for the negligence of other:
(i) Senior doctor - responsible for negligence of junior doctor, resident, intern or an assistant working under his supervision
(ii) Hospital - responsible for negligence of its doctor. A hospital, as an employer, is responsible for negligence of its employees who are acting
under its supervision and control. It does not matter whether they are full-time or part-time, resident or visiting, permanent or temporary, because
even if they are not servants, they are the agents of the hospital to give the treatment.
(iii) Hospital management will be held responsible for the mistakes of resident physicians and interns in training, who are considered employees
when performing their normal duties
(iv) Two or more doctors working in partnership - each is responsible for negligence of other even though he may have no part in the negligent
act
(v) Two or more doctors attending on a patient independently - each may be held liable for the negligence of other, if negligence produced
symptoms and signs which an ordinary doctor should have noticed and objected to [for an imp exception, please see below]
(vi) Doctor referring his patient to an incompetent doctor knowingly – Referring doctor is vicariously responsible for negligence of incompetent
doctor [Doctrine of negligent choice]
(vii) Doctor writing illegible prescription and pharmacist dispensing wrong drug- doctor is vicariously liable [this is an undetermined area. Protocol is
that in such cases, pharmacist should ring up doctor and confirm medicine]
(viii) Doctor instructing prescription over telephone and pharmacist dispensing wrong drug- doctor vicariously responsible
(ix)When an employee has been temporarily borrowed from another [Borrowed servant doctrine]. An employee may serve more than one
employer, e.g., the nurse employed by a hospital to assist in operations may be the "borrowed servant" of the operating surgeon during the
operation, and the servant of the hospital for all other purposes. In this case, the lending employer temporarily surrenders control over his worker
and the borrowing employer temporarily takes over control.
(x) When employers provide medical services to their employees, or conduct pre-employment examination of prospective employees, they may be
liable for the negligence of their doctors.
(xi) Insurers who have contracted to provide medical services may be liable for the negligence of their physicians.
(xii) The employer or the insurer of employees covered by Workmen's Compensation Act may be liable for the negligence of their doctors.

(6) Relationships when one is not vicariously responsible for the negligence of other:
(i) Surgeon and anesthetist [an imp exception of the principle of two or more doctors attending patient simultaneously]
(ii) Qualified nurse acting independently, not under the direct supervision and control of doctor -doctor not vicariously responsible
(iii) Doctor referring his patient to a competent doctor - referring doctor not responsible [cf referral to an incompetent doctor]
(iv) Doctor referring an already injured patient due to his negligence to a new doctor or hospital - the latter is not vicariously responsible
(v) Doctor writing clear, legible prescription and pharmacist dispensing wrong drug - doctor not liable
(vi) Hospitals cannot be held responsible for the negligent acts of members of the superior medical staff in the treatment of patients, if it can be
proved that the managers exercised the due care and skill, in selecting properly qualified and experienced staff.

(7) Examples: (i) Hospital employs untrained surgeon at low wages -> He conducts operation negligently causing injury to patient -> hospital is
vicariously liable
(ii) Resident and HOD surgery conduct surgery on a patient -> Swabs are left in the abdomen -> patient suffers injury -> He sues both -> HOD
surgery is vicariously liable, even if the gauze were actually left by the house surgeon. As a senior it was his duty to see that everything goes alright.

(8) Precautions for Medical professionals :

(i) Behave humanely; avoid rough, rude or inhuman behavior with the patients or their relatives.
(ii) Communicate with the patient and take proper consent after explaining the condition.
(iii) Documents related to a particular case should be maintained properly. Be efficient and have proper expert opinion especially in serious
illnesses.
(iv) Finances and bills should be properly explained and informed at the time of admission or even before admission. Always give guarded
prognosis especially in diseases known to have high mortality or morbidity.
(v) Hospital staff should be properly trained and adequately experienced. Insurance and indemnity schemes should be availed whenever
possible and available.
(vi) Junior staff and locums should be qualified and starting of group practice is a better option in this era.
(vii) Keep knowledge updated and latest instruments should be available, if possible.
(viii) Creation of medico legal cells and Medical organizations may be helpful in setting the grievances before going for legal action.
(ix) No manipulations should be done in patient’s records. A second opinion should be taken in serious and complicated cases.