Medical Negligence and Consumer Law II

Medical negligence comprises of the following constituents: (i) legal duty to exercise due care on the part of the medical professional; (ii) failure to inform the patient of the risks involved; (iii) the patient suffers damage as a consequence of the undisclosed risk by the medical professional; (iv) if the risk had been disclosed, the patient would have avoided the injury; (iv) breach of the said duty would give rise to an actionable claim of negligence. The cause of action for negligence arises only when damage occurs, since damage is a necessary ingredient of this tort. The injury must be sufficiently proximate to the medical practitioner’s breach of duty. In the absence of evidence to the contrary adduced, an inference of causation may be drawn even though positive or scientific proof is lacking.

The standard to be applied for adjudging whether the medical professional charged has been negligent or not, in the performance of his duty, would be that of an ordinary competent person exercising ordinary skill in the profession. The law requires neither the very highest nor a very low degree of care and competence to adjudge whether the medical professional has been negligent in the treatment of the patient. Lord Denning in Hucks v. Cole, (1968) 118 New LJ 469 held that a medical practitioner would be liable only where his conduct falls below the standards of a reasonably competent practitioner in his field. A medical professional should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes reasonable skill that other ordinarily competent members of his profession would bring.

It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors. It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care.”

Hon’ble Justice Indu Malhotra, Pooja Sharma v. Maharaja Agrasen Hospital, [Civil Appeal No. 9461 of 2019].

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Every death of a patient cannot on the face of it be considered as death due to medical negligence.  

It is clear, in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception.

Hon’ble Justice A. Bopanna, Dr. Harish Kumar Khurana v. Joginder Singh, [Civil Appeal No. 7380 of 2009] decided on 07.09.2021.