DELHI METROPOLITAN

EDUCATION
AFFILIATED TO GGSIPU
 MEDICAL NEGLIGENCE

NAME- KUNAL MALIK

CLASS- BALLB 5
SEC- B
SUB- HEALTH CARE LAWS
ENROLL NO.- 05051103818
 INTRODUCTION

“Medical negligence has become one of the serious issues in the country in recent
years. Even the medical profession, which is known to be one of the noblest
professions, is not immune to negligence which often results in the death of the
patient or complete/partial impairment or any other misery which has adverse
effects on the patient’s health. There are instances where doctors who are under-
educated leads to the proceedings in the court of law due to the magnitude of
negligence or deliberate conduct shown by the doctors.

Around 52 lakh medical injuries are recorded every year in India out of which
98,000 people in the country lose their lives in a year because of medical
negligence. It is really a serious concern for the entire nation that 10 people fall
victim to medical negligence every minute and more than 11 people die every hour
in the country due to this medical error.

It is no surprise that even the slightest mistake made by a doctor can have life-
altering effects on the patients. So, it is the duty of a doctor to take proper care to
avoid such happenings.
 MEDICAL NEGLIGENCE

The incorrect, careless, or negligent treatment of a patient by a medical

professional is known as medical negligence. This may involve careless behavior
on the part of nurse, doctor, surgeon, pharmacist, dentist, or other medical
personnel. The majority of medical malpractice claims where the victim alleges
injury from medical treatment are based on medical negligence.

Commission of mistakes or Negligence within the health profession could result in

minor injuries or even lead to some serious injuries and these mistakes could even
lead to death. Since no one is perfect in this world, a person who is skilled and has
knowledge of a particular subject can also commit mistakes. To err is human but to
replicate the same mistake due to one’s carelessness is negligence.

The fundamental reason behind medical negligence is that the carelessness of the
doctors or medical professionals are often ascertained in various cases where
reasonable care is not taken during the diagnosis, during operations, while injecting
anesthesia, etc.
We can define ‘Medical negligence’ as the improper or unskilled treatment of a
patient by a medical practitioner. This includes negligence in taking care from a
nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical
negligence leads to ‘Medical malpractices’ where the victims suffer some sort of
injury from the treatment given by a doctor or any other medical practitioner or
health care professional.

When a doctor, other medical personnel, or a healthcare institution fails to uphold

the standard of care necessary when supervising, diagnosing, or treating a patient,
an injury result. This is known as medical malpractice. This deviation from the
minimum standard of care expected of all medical practitioners typically results
from negligence.
 ESSENTIALS OF MEDICAL NEGLIGENCE

The term ‘Medical negligence’ consists of two words – medical and negligence.
Negligence is solely the failure to exercise reasonable care. Medical negligence is
no different. It is only that, in case of medical negligence, the doctor is the
defendant.

In an action for negligence, the following essentials are required:

 The defendant owed a duty of care to the plaintiff.

 The defendant made a breach of that duty.
 The plaintiff suffered damage as a consequence of that breach.

A doctor owes certain duties of care to his patients, they are as follows:

 It is his duty to decide whether he wants to undertake the case or not,

 It is his duty to decide what treatment to give and;
 It is his duty to decide the administration of treatment.
If a doctor fails to perform the aforesaid duties it results in breach of duty and
gives a right of action to the patient. A breach of duty is committed by a doctor
when he does not perform the degree of care like a reasonable doctor.”

CASE LAWS

“In Kusum Sharma v. Batra Hospital, it was held by the Supreme Court that a
doctor often adopts a procedure which involves a higher element of risk, but in
doing so he honestly believes that it will provide greater chances of success for the
patient. If a doctor has taken a higher risk to redeem the patient out of his/her
suffering and it did not yield the desired result, this may not amount to medical
negligence.”

In Jasbir Kaur v. State of Punjab, a newly born child was found missing from
the bed in a hospital. The child was found bleeding and near the wash-basin of the
bathroom. The hospital authorities argued that the child had been taken away by a
cat which caused the damage to him. The court held that the hospital authorities
were negligent and had not taken due care and precaution. Thus, awarded the
compensation amounting to Rs. 1 lakh.
 WRONGFUL DIAGNOSIS UNDER MEDICAL
NEGLIGENCE

“Wrongful diagnosis is among the most common medical mistakes, although it’s
hard to know how often it occurs. Some 40 percent of patients think they have
been a victim of medical error or misdiagnosis. Hospital patient autopsies suggest
one in five experienced medical misdiagnoses.

Wrongful or misdiagnosis cases involve a mistaken identification of a medical

condition and are different from failure to diagnose claims. In misdiagnosis cases,
the physician has arrived at an improper medical diagnosis, as opposed to not
arriving at a diagnosis at all. Negligent diagnoses can result in serious health
conditions and sometimes death. Misdiagnosis claims can also include delayed
diagnosis claims, which occurs when the patient suffers more serious health
conditions due to the doctor’s inability to timely diagnosis the patient’s condition.

Like other forms of medical malpractice and hospital negligence, wrongful

diagnosis is dangerous – whether caused by doctors, hospital staff or technicians.
False positive results, false negative results, and equivocal results delay needed
healthcare and may force patients to receive treatments or drugs with adverse side
effects.

Frequently misdiagnosed diseases include heart attacks, breast cancer, appendicitis,

lung cancer, colon cancer, prostate cancer, cervical cancer, ovarian cancer and
testicular cancer. Other wrongfully diagnosed illnesses are tuberculosis, diabetes,
strokes, bacterial meningitis and pulmonary embolism. Misdiagnosis is an
especially serious problem in hospital emergency rooms and intensive care units.

Under-diagnosis is common with such medical conditions as Type 2 diabetes, high

cholesterol, hypertension, osteoporosis, sexually transmitted diseases,
hemochromatosis, chronic kidney disease, hypothyroidism and glaucoma.

In order to successfully litigate a wrongful or misdiagnosis claim, an experienced

personal injury lawyer must prove that the doctor failed to provide an adequate
standard of care and had the doctor properly diagnosed the patient’s condition, the
patient would have received proper medical treatment and avoided further injury.
Doctors are expected to render a definite diagnosis only after all necessary medical
tests have been conducted.
 NEGLIGENT DIAGNOSIS UNDER MEDICAL
NEGLIGENCE

When someone goes to a

hospital, clinic or medical room,
etc. the
first step after admittance is the
diagnosis. Diagnosing
symptoms correctly is critical
and
important to provide medical
care to any patient. However, if
a patient is not treated
properly due to any mistake in
diagnosis, the doctor can be
made liable for any further
injury or damages caused as a
result of the wrong diagnosis.
 Delay in diagnosis – A
delayed diagnosis is treated as
medical negligence if another
doctor would have reasonably
diagnosed the same condition in
a timely fashion. A delay
in diagnosis can cause undue
injury to the patient if the illness
or injury is left to worsen
with time rather than being
treated. Obviously, any
delay in the identification
and
treatment of an injury can
reduce the chance of recovery
for the patient.
 Long-Term negligent
treatment – Medical negligence
can also occur in subtle ways
over the course of a long
treatment period. Usually, the
negligence can take the shape of
a
failure to follow up with
treatment, or a doctor’s failure
to monitor the effects of t
When someone goes to a
hospital, clinic or medical room,
etc. the
first step after admittance is the
diagnosis. Diagnosing
symptoms correctly is critical
and
important to provide medical
care to any patient. However, if
a patient is not treated
properly due to any mistake in
diagnosis, the doctor can be
made liable for any further
injury or damages caused as a
result of the wrong diagnosis.
 Delay in diagnosis – A
delayed diagnosis is treated as
medical negligence if another
doctor would have reasonably
diagnosed the same condition in
a timely fashion. A delay
in diagnosis can cause undue
injury to the patient if the illness
or injury is left to worsen
with time rather than being
treated. Obviously, any
delay in the identification
and
treatment of an injury can
reduce the chance of recovery
for the patient.
 Long-Term negligent
treatment – Medical negligence
can also occur in subtle ways
over the course of a long
treatment period. Usually, the
negligence can take the shape of
a
failure to follow up with
treatment, or a doctor’s failure
to monitor the effects of t
A delayed diagnosis is treated as medical negligence if another doctor would have
reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis
can cause undue injury to the patient if the illness or injury is left to worsen with
time rather than being treated. Obviously, any delay in the identification and
treatment of an injury can reduce the chance of recovery for the patient. – Medical
negligence can also occur in subtle ways over the course of a long treatment
period. Usually, the negligence can take the shape of a failure to follow up with
treatment, or a doctor’s failure to monitor the effects of the treatment properly.

Doctors act negligently when they fail to provide the quality of care that other
reasonably competent doctors would have provided under similar circumstances.
In medical malpractice lawsuits, patients have the burden of proving what quality
of care other reasonably competent doctors would have provided in similar
circumstances. This usually requires expert testimony.

The patient (usually through a medical malpractice attorney) hires a doctor that has
experience with the type of medical problem at issue in the case. The doctor
provides an opinion regarding what a reasonably competent doctor would have
done under the circumstances.
Generally, when an improper diagnosis is involved, the expert will opine about the
"differential diagnosis" that a reasonably competent doctor would have conducted.

To do this, a doctor makes a list of all of the possible medical problems that could
be causing the patient's symptoms. The doctor then conducts tests on the patient,
ruling out various possibilities until a definitive diagnosis can be determined.

Doctors might fail to achieve the standard of care in any of the following ways
when it

- A doctor might fail to include an important potential medical problem on the

initial differential diagnosis list.

-A doctor might improperly conduct or interpret a test that could cause a mistake in
narrowing down the possibilities.
 CASE LAW

Vinod Jain v. Santokba Durlabhji Memorial Hospital & Anr.

In the case, the Appellant has challenged in NCDRC (National Consumer Dispute
Redressal Commission, whereby Commission exonerated the respondents of any
medical negligence. Here it would be relevant to mention that the Appellant was
aggrieved by the demise of his wife which resulted in the present legal
proceedings.

The Appellant in the case initiated legal proceedings under the belief that the
respondents were guilty of medical negligence in the manner in which medical
treatment was administered to his wife and her subsequent discharge from
respondent hospital.

The Supreme Court in view of the facts and circumstances of the case and
principles

governing medical negligence law in the case of Kusmn Sharma & ors. v. Batra
Hospital & Medical Researclr Ce11tre & ors. upheld NCDRC's order and made
the following observations in the case:
 That a fundamental aspect, which has to be kept in mind is that a doctor
cannot be said to be negligent if he is acting in accordance with a practice
accepted as proper by a reasonable body of medical men skilled in that
particular Ctrl, merely because there is a body of such opinion that takes a
contrary view. That in cases of medical negligence, where a special skill or
competence is attributed to a doctor and a doctor does not possess the
highest expert skill at the right or being found negligent and it would suffice
if he exercises the ordinary skill of on ordinary competent man exercising
that particular art.

 That a physician would not assure a fit recovery in even case, and the only
assurance given, by complication, if that be possesses the requisite skills in
the branch of the profession, and while undertaking the performance of his
task, he would exercise his skills with reasonable coreference.”