DOCTOR’S NEGLIGENCE
3. Definition of Doctor’s Negligence
3.1 Essential Elements of Doctor’s Negligence
3.2 Duties of a Doctor
3.3 Breach of Duty
3.4 Res Ispa Loquitor
3.5 Novus Actus Inter Veniens.
3.6 Kinds of Doctor’s Negligence
3.6.1 Civil Negligence
3.6.2 Criminal Negligence
3. Definition of Doctor’s Negligence:
Doctors negligence or professional negligence can be defined as a dereliction from medical professional duty or failure to exercise an accepted degree of medical professional skill or learning rendering medical services which result in injury, loss, or damage. It may again be defined as absence of reasonable care and skill of willful negligence of a medical man in course of treatment of patient resulting in bodily injury or death. Actually it is nothing but the failure in the exercises of a reasonable degree of skill and care on the part of a medical practitioner in the treatment of a patient
3.1 Essential Elements of Doctors Negligence
There are four elements that must be present in a given situation to prove a health care professional guilty of negligence. Sometimes called the “ Four D’s of Negligence” these elements include-
Duty i.e. the person charged with negligence owed a duty of care to the accuser,
Derelict i.e. the health care provided breached the duty of care to the patient,
Direct cause i.e. the breach of the duty of the care to the patient was a direct cause of the patients injury, and
Damages i.e. there are a legally recognizable injury to the patient. When a physician (the defendant) is sued by a patient (the plaintiff) for negligence, the burden of proof is on the plaintiff. That is, it is up to the patient’s lawyer to the presence evidence of these four Ds.
3.2 Duties of a Doctor:
A doctor has to perform some duties which are voluntary in nature like he must use average degree of skill, care, judgment and attention during treatment, continue the treatment unless he has given due notice for discontinuing his treatment, use clear and proper instrument an appliance, furnish, his patient with proper and suitable medicine, if the doctor has his own dispensary, otherwise he should give legible prescription maintaining full and detailed instruction, give full direction in simple language, advise for higher consultant (specialist) under certain circumstances, must maintain professional secrecy, issue medical certificates when needed. All these duties are voluntary duties and it will be presumed that a doctor is quite aware of all these duties.
A doctor has some duties towards the community like notification of infectious diseases like plague, cholera, small pox etc. information of birth and death, notification of any new dangerous disease, e.g, viral infection (Typhoid fever) AIDS etc, notification of fitness of servant and employees for their employment if known to the medical practitioner, reporting to law enforcing agencies in case of homicidal poisoning, reporting of certain cases falling under category of privileged communication especially as regards moral and social duties and responsibility in criminal cases, reporting of unnatural death.
Besides one of the main obligations of medical profession is that a doctor must follow the ethical principals mentioned in the International code of Medical Ethics, 1949 (Popularly known as Geneva Declaration accepted by the General Assembly of the World Medical Association in London on October 12 1949).40 A doctor has to take an oath in the form of promises solemnly, freely and upon by honor here among many other words the doctor has to promises that he solemnly pledge himself to consecrate his life to the service of humanity, he will practice his profession with conscience and dignity, the health of his patient will be his first consideration, he will respect the secretes which are confined in him.
In the case of Doctor Lakshman Balkrishna Joshi vs. Doctor Trimbak Bapu Godbole, AIR 1969 SC 128 at pp. 131-132,it was held that a medical practitioner, when consulted by a patient, owes him the following duties
(a) a duty of care in deciding whether undertake the case;
(b) a duty of care in deciding what treatment to give; and
(c) a duty of care in the administration of the treatment.
A breach of the above mentioned duties given a right of action for negligence to the patient.
3.3 Breach of Duty
A doctor should always maintain professional secrecy. A doctor should not discuss the illness of his patient with others without the consent of there patient .He should not answer any inquiry by third party even when inquired by near relatives of the patients, either with regard to the nature of illness or with regard to any subsequent effect of such illness on the patients without the conscience of the patient,. He should not disclose any information about the illness of his patient without the consent of the patient, even when requested by a public or statutory body, except incase of notifiable diseases. If the patient is a minor or insane consent of the guardian should be taken. If the patient is a major, the doctor should not disclose any facts about the illness without his consent to parents or relatives even though they my be paying the doctor’s fees. In the case of minor or insane persons, guardians or parents should be informed of the nature of the illness. Even in the case of husband and wife the facts relating to the nature of illness of the one must not be disclose to other without the consent of the concerned person. When a domestic servant is examined at the request of the master, the doctor should not disclose any facts about the illness to the master of the servant even though the master is paying the fees.
When a doctor examines a government servant on behalf of the government, he cannot disclose the nature of illness to the government without the patients consent. A person in police custody as an under trail prisoners has the right not to permit the doctor who has examined him, to disclose, the nature of his illness to any person. If a person is convicted, he has no such right and the doctor can disclose the result to the authorities. The medical officer of a firm or a factory should not disclose the result of his examination of an employee to the employers without the consent of the employee. The medical examination for taking out life insurance police is a voluntary act by the examinee and therefore, consent to the discloser of the finding may be taken as implied. A doctor should not give any information to an insurance company about a person who has consulted him before, without the patients consent. Any information regarding a deceased person may be given on after obtaining the consent from the nearest relatives. in divorce and nullity cases, no information should be given without getting the consent of the person concerned. Medical Officers in Government service are also bound by the code of professional secrecy, even when the patient is treated free. In reporting a case in any medical journal care should be taken that the patients identity I not revealed from the case notes or photographs in the examination of a dead body certain facts my be found, the discloser of which may affect the reputation of the deceased or cause distress to his relatives and such, the doctor should maintain secrecy.
3.4 Res Ipsa Loquitur:
The English equivalent of the Latin maxim “Res Ipsa Loquitur”,is the thing speaks for it self”. It means that to take a person liable, it is not always necessary to prove that a person was negligent. Sometimes the nature of his job will clearly spells out that the person was negligent .As for example if it is found that a doctor finishes operation while keeping scissor inside of the patient’s stomach it is clear case of “Res Ipsa Loquitur.
Where the injury is caused by something which is in the doctor’s or defendant’s control, in circumstances form which it can reasonably be inferred that the accident would not have occurred, if the defendant had used proper care, then in the absence of explanation by the defendant the plaintiff may succeed. For instance, a swab left over in the abdomen of a patient burns form application of hot water bottle or from x-rat therapy prescribing an overdose of medicine producing in-effects, giving poisonous medicine carelessly etc.41 are the circumstances where the principle may be applied. To conditions are therefore, necessary for the application of the principle:
(a) Complete control rests upon with the doctor
(b) It is the general experience of mankind that the accident in question does not happen without negligence.42
When the principle of res ipsa loquitur is applied the burden is on the doctor to explain how the incident could have occur without negligence. In the absence of any such explanation, liability of doctors arises. Where the negligence of a doctor is proved, the court may order the doctor to pay compensation to the injured patient or to re-investigate his injury, if possible. The steps to be taken in this way are to be regulated by the law of torts. But this law is undeveloped in Bangladesh and the tendency to file civil suit for the recovery of pecuniary compensation, in the case of damage caused by medical negligence or any other types of negligence is rarely observed.43 As there is no codified law on the law of torts, which especially defines medical negligence and remedies for it, the victims have to resort to the provisions of general law of the land covering the cases of negligence.
3.5 Novus Actus Interveniens:
The Novas Actus Interveniens states that a person I responsible not only for his actions but also for the logical consequences of those actions. That is, if a doctor conducts a operation and that is a bad one and as a result the patient has to suffer infection then the doctor will be liable for both the wrong operation and for the infection. The principle is applied to cases of assault and accidental injuries.
3.6 Kinds of Doctors Negligence:
Doctor’s negligence is manifest in a number of ways. However, in the broad sense doctor’s negligence can be divided into two categories.
3.6.1 Civil Negligence:
It is a form of negligence in which a patient brings an action against his physician in the civil cord for injury or damage caused to him as a result of breach of his legal duty to exercise skill and care, i.e. his professional duty necessary in the circumstances of the case. Failure to prescribe tetanus toxic to patient of multiple road injuries, braking of needle during injection, medical examination of a person against his or her consent prescribing overdoses of medicine and causing harm giving poisonous drug carelessly, loss or damage of limbs due to prolonged or careless plastering, burns due to careless deep X-ray or burns due to applications of extreme hot water bottle, prescribing overdoses of medicine and causing harm can be examples of civil negligence.
The question of civil negligence arises into circumstances, i.e. where in the case of death of a patient, his relative brings a civil suit for realization of compensation from the doctor and when a doctor brings a civil suit for recovery of his fees from his patients or patients relatives who refuse to pay on the ground of professional negligence.
3.6.2 Criminal negligence:
Criminal negligence is the gross culpable neglect or failure to exercise that reasonable or proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arises, it was the imperative duty of the accused person to have adopted.44 It is a form negligence in which the physician exhibits gross lack of competence, gross in attention criminal indifference to the patient’s safety or gross negligence in the selection and application of remedies resulting in death or serious injury to the patient. Examples of criminal negligence may be performing criminal abortion45. Issuing false gangrene medical certificates46 leaving instrument or swabs in the cite of operation after performing operation, gross mismanagement of delivery of a women especially by a doctor addicted to the inhalation of anesthesia, grossly incompetent administration of a general anesthetic by a doctor addicted to the inhalation of anesthetic, use of wrong drug in the eye causing laws vision or damage of the eye amputation of wrong finger or leg or operation on wrong limb or wrong patient, gangrene due to very tight plaster, causing paralysis after splinter, dressing with corrosive instead bland liquid, removal of wrong organ or in legation of ducts, damages caused by mismatched blood transfusion .
The question of criminal negligence arises in three circumstances i.e. when a doctor gross absences of skill or care in the course of treatment resulting in serious injury to death of the patient by acts of omission or commission, when a doctor performs an illegal act so as to abuse his rights and duties, when an assaulted person dies the defense may be attribute the death to the negligence or undue interference in the treatment of the deceased by the doctor.
Where death is caused involuntarily by professional negligence, there it is necessary for criminal conviction that there is a duty that is breach of that duty amounting to gross negligence and the causing of death. In a case two junior doctors erroneously injected a substance into the spine of youth who died47; electrician fitted into a house and electric programmer which electrocuted a person48 they where convicted for manslaughter.
They appealed. The doctors and the electrician succeeded in their apple. The courts said that gross-negligence might be shown by indifference to an obvious risk or by foresight of the risk and a determination to run the risk or attempting to avoid the risk with such a degree of negligence that a conviction is justified or by failure to avert a serious risk going beyond mere in advertence is respect of an obvious unimportant matter which demanded the accused persons dutiful attention.
40 After the serious violations of medical ethics by Fascist doctors in Germany and Japan during the 1939-45 war, when horrific experiments were carried out in concentration camps international medical community in 1948 re-stated Hippocratic Oath in a modern form in the declaration of Geneva. In 1948, an international medical conference was held in Geneva, which adopted a Declaration for oath to be taken by all the registered practitioner held in London in October 12, 1949. Now a day this basis of all internationally accepted code of Medical Ethics.
42 8 Dr. Rao Joga V.S. “Doctoe – patient Relationship Medical negligence, liability Arising out of Tort Law, Criminal Law and Contract Law” op. cit, p 7
43 Shobnom Sohana, “ Doctari Abohela Shonkranto Bangladesher Ain ” (Laws Relating to Medical Negligence in Bangladesh) in Shahin Akhter (ed) “Doctari Obohoea” (Medical Negligence) Ain O Shalish kendro,Dhaka (2001), p 47
44Per Straight J.,in Idue Beg, (1881) ILR 3 All 776, 780: Attra, (1891) PR no. 9 of 1891 Bhalchandra, (1968) 71 Bomb. LR 634 (SC)
45 Sections 313 and 314 of the Penal Code 1860
46 Sections 191 and 192 of the Penal Code 1860
47 R vs. Prentice (1993) 3 WLR 927 (CA)
48 R vs. Adomako, 1993 3 WLR 927 (CA)
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