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Negligence in Law



INTRODUCTION

 Negligence in its legal acceptance includes act of omissions as well as commission.1 Winfield defines ‘negligence’ as “breach of a legal duty to take care, which results in damage undesired by the defendant to the plaintiff.” Negligence as a tort is a breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and a reasonable man would not do. The definition involves three constituents of negligence:

 (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining of the former’s conduct within the scope of the duty;

 (2) breach of the said duty, and (3) consequential damage.2 As per Moni v. State of Kerala3 “in the case of medical man, negligence means failure to act by the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standard, then he is not negligent.” As per Poonam Verma v. Ashwin Patel the respondent-doctor who was a practitioner in Homeopathy only negligently prescribed allopathic medicines to the patient, resulting in his death. The doctor was held to be guilty of negligence per se and liable to pay damages. The court approved the decision in Dr. Laxman Joshi case.

 Medical Negligence 



 Medical negligence may be defined as want of reasonable degree of care and still or willful negligence, on the part of a medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to his bodily injury or to the loss of his life. Modern Tort Law differentiate between injuries which are a result of intentional conduct and those resulting from negligence.5 In Venkatesh Iyer v. Bombay Hospital Trust6 , the suit was for compensation for the alleged illness caused by the negligent medical treatment given by the defendant to the plaintiff. It was proved on the part of the defendant that the treatment of radiation given to the plaintiff was admittedly necessary to save the plaintiff’s life. It was established that the illness was possibly due to other treatments except the above-mentioned radiation treatment. Therefore, no casual relation between the illness and the alleged negligence could be established.

 Criminal Negligence 

 Indian criminal Law has placed the medical professional on a different footing as compared to an ordinary Human. Section 304 A, IPC states that “Whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine or with both.” Criminal Liability can also be imposed upon a doctor under particular situations wherein the patient dies during the time of administering anaesthesia in an operation; the death must also be due to malicious intention or gross negligence. 

 Many a time the doctor will also be vicariously, meaning thereby if his employee/servant rashly causes the death of a patient. In that case, the employee as well the doctor will be liable due to the principle of ‘Vicarious Liability’ under Tort law. 

 Civil negligence :

 The position regarding negligence under civil law is very important as it encompasses many elements within itself. Under Tort law or civil law, the principle is applicable even if medical professionals provide free services. It can be asserted that where Consumer Protection Act ends, tort law begins. In the case of the State of Haryana v. Smt Santra7 , 

the Supreme Court held that every doctor “has a duty to act with reasonable degree of care and skill.” A doctor can be held liable only if one can prove that he/she is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. Certain conditions must be satisfied before liability can be considered. 

The person who is accused must have committed an act of omission or commission;. In Kurban Hussein v. The state of Maharashtra8 in the case concerning Section 304(A) of I.P.C. , 1860 , it was stated that- “To impose criminal liability under section 304-A, it is necessary that the death should have been the direct result of rash and negligent act of the accused, without other person’s intervention.” 



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