Medical negligence is the breach of a duty of care by an act of omission or commission by a medical professional of ordinary prudence. Actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge to the patient, to whom he owes a duty of care, which has resulted in injury to such person. 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.
Medical negligence comprises of the following constituents:
(1) A legal duty to exercise due care on the part of the medical professional;
(2) failure to inform the patient of the risks involved;
(3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional;
4) if the risk had been disclosed, the patient would have avoided the injury;
(5) 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. In a complaint
of medical negligence, the burden is on the complainant to prove
breach of duty, injury and causation. The injury must be
sufficiently proximate to the medical practitioner's breach of
duty. In the absence of evidence to the contrary adduced by the
opposite party, an inference of causation may be drawn even though
positive or scientific proof is lacking.
Views by Supreme Court of India regarding this are "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" while upholding an NCDRC order awarding compensation of Rs, 76,00,000 (Seventy Six Lakh Ruprees) to the boy and the mother, holding a Hospital to be vicariously liable for medical negligence of the Doctors who allegedly failed to carry out the mandatory check up of Retinopathy of Prematurity of a pre-term baby, which led to his total blindness.
Originally published 18 December 2019
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