MEDICAL NEGLIGENCE IN TORT LAW

By - Jay Kumar Gupta

INTRODUCTION

The failure to take proper and appropriate step in a particular situation to avoid the mishappening which a prudent or reasonable person would do so in the same situation and circumstance is termed as “negligence”. Negligence is itself a very broad concept and medical negligence is just a subset to it. A medical practitioner's poor or unskilled treatment of a patient is classified as medical negligence. This covers the negligence of a nurse, physician, surgeon, pharmacist, or any other medical practitioner while delivering care. Whenpatients are hurt as a result of treatment provided by a doctor or another medical practitioner or health care provider, this is known as medical malpractice.

BURDEN ON PROOF

The burden of proof is on the plaintiff. In various decisions, the burden of proof for charging a doctor with medical malpractice has been decided to rest on the person alleging misconduct against him (patient). Even specialists, it is a well-known fact, can make blunders. And he'll only be found guilty or negligent if his activities aren't up to par with the standard of care he should be using.

STEPS TO PROVE MEDICAL MALPRACTICE

The following are the steps to proving a medical malpractice claim:

You must first prove that there is a doctor-patient relationship. This is the most straightforward means of establishing medical malpractice.The next stage is to show that your doctor did not meet the established requirements for this profession.Finally, demonstrate that you were wounded as a result of medical misconduct. You must provide proof of damages, which includes all of the injury you have suffered as a result of the doctor's negligence.All of the elements outlined above must be established in order to win a medical malpractice claim.

OBLIGATION OF CARE

A duty of care is an obligation owed by one party (the doctor) to take reasonable precautions to prevent injury to another in the event of medical negligence (patient). Doctors, in general, have an obligation to care for their patients.

To establish a duty of care, a number of conditions must be met.

The specifics and conditions are as follows:

A physician is not required to treat everyone, but when he does, he must treat each patient with care and according to the accepted standard of care. It is appropriate for a doctor or clinical practitioner to recommend that a patient seek the services of another health care provider. However, in an emergency, the patient should be treated by a medical professional. No healthcare provider should refuse to deal with a problem unless it is outside of his area of expertise.

The seriousness of a patient's illness should never be exaggerated or minimised by a doctor. He must ensure that the patient receives appropriate treatment, taking into account the nature of the ailment.

A doctor need patience since he is unable to work without it. The patient's personal information should be kept confidential. He can, however, share information in limited circumstances if he considers it, is his duty. He can, for example, make a disease public and warn people about it if it is spreading and poses a harm to persons.

A physician or doctor is free to treat anyone he wishes, but in an emergency, he cannot refuse to treat a patient. However, once a case is initiated, the health care professional is unable to abandon it without notifying the patient's family. A medical practitioner should not deliberately engage in any act of carelessness that deprives his patients of the degree of treatment they deserve, whether temporarily or permanently licenced.

When a physician who specialises in a particular problem and is knowledgeable in that field is unavailable, and another physician is dispatched to treat the patient, the acting doctor is entitled to his fees, but must first obtain the patient's consent or permission to leave when the physician engaged arrives.

Doctors, nurses, anaesthetists, and other medical personnel have a legal obligation to provide a reasonable quality of care when performing their duties. This commitment is known as a responsibility of care.

If a healthcare provider breaches their duty of care and a patient is injured or becomes ill as a result, there may be grounds for a medical negligence claim.

BOLAM TEST

The Bolam test is the most widely used method for deciding whether or not a professional duty has been breached. The tort case Bolam v. Friern Hospital Management Committee (1957) established the professional standard of care for healthcare providers.

A patient had significant fractures while receiving electro-convulsive treatment (ECT). Mr. Bolam sought damages on the grounds that his physician had been negligent.

Before the procedure, the doctor did not use muscle relaxants.

During the process, Mr. Bolam was not restrained.

The physician had not warned Mr. Bolam about the dangers.

Mr. Bolam's claim was unsuccessful. It wasn't common practise at the time to offer patients muscle relaxation. Some croakers acknowledged that using a muscle relaxant or restraints could enhance the risk of breakage. Furthermore, unless the case specifically requested it, cases were not routinely informed of the relatively minor risks connected with ECT. The medical platoon was found to have followed the standard medical protocols at the time in this case. In a similar spirit, the medical battalion was not meant to have been sloppy with the ECT procedure.

WHAT IS THE BOLAM TEST AND HOW IS IT USED?

To pass the Bolam test, a medical professional must show that he acted in a way that a responsible body of medical specialists in the same field would deem respectable.

A peer review of a physician's performance is known as the Bolam test. If others had acted as well, the physician doubts he would have broken his duty of care.

It makes no difference if other medical professionals used a different treatment or responded in a different way. Given the complexities of current medications, a different physician may, and most likely would, have had a different outcome. The essential thing to remember is that a group of professionals who share your viewpoint believe the physician did appropriately.

CONCLUSION

There is no doubt that compensation in medical negligence cases must be just and adequate, but with changing times and people's aspirations, as well as tremendous advances in medical science that have resulted in much better diagnosis and treatment than in the past, patients and their attendants have a legitimate expectation that medical professionals be held accountable to some degree, if not fully. As the country's consumer law evolves, the amount of compensation will inevitably climb, and more and more hospitals will fall under its jurisdiction. Every human is not same in the expertise and skill and the same applies to the medical fraternity also. Hence, it’s always difficult to prove the negligence in such cases.

REFERENCES

Adlakha, P. and Nagpal, N., 2022. Medical Negligence India. [online] Lexology. Available at: <

https://www.lexology.com/library/detail.aspx?g=b271f61b-9bc7-4d12-9e88-4c058fd8951b > [Accessed 8 January 2022].

Shukla, V., 2022. Medical Negligence in India - Legal Articles in India. [online] Legal Articles in India. Available at: < http://www.legalservicesindia.com/law/article/3/27/Medical-Negligence-in-India > [Accessed 8 January 2022].

Bolam Vs Friern Hospital Management Committee (1957) 2 All ER 118 at 121.