Existence of legal duty: Whenever a layman approaches a person who possess certain skill, or knowledge, the other party is then under an implied legal duty to act in such a manner so as to protect that person to his greatest effort and extent. The medical profession is one such section of society on which such a duty has been imposed in the strictest sense. Every time a patient visits a doctor for his ailments he does not enter into any written contract for care, but there is an implied contract and any lack of proper care can make the erring doctor liable for breach of professional duty. And if the doctor is incompetent to perform his duty it accounts for
Even after adopting all medical procedures as prescribed, a qualified doctor may commit an error. The National Consumer Disputes Redressal Commission and the Supreme Court have held, in several decisions, that a doctor is not liable for negligence or medical deficiency if some wrong is caused in her/ his treatment or in her/ his diagnosis if she/ he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals skilled in that particular art, though the result may be wrong. In various kinds of medical and surgical treatment, the likelihood of an accident leading to death cannot be ruled out. It is implied that a patient willingly takes such a risk as part of the doctor-patient relationship and the attendant
Negligence can be said as failure to take due care, as a result of which injury arises. Negligence ignores wrongful intention. Carelessness is not a ground for legal liability except in those cases in which the law has imposed the duty of carefulness. The medical profession is one such field of the society in which duty has been imposed in the strict manner A medical professional is expected to have the requisite degree of skill and knowledge. .
If this is the case, they must be told of the reason for the refusal. Patients have a right to complain about the doctor's refusal to the Management. Provision of Treatment requires patient’s choice and informed consent. Even if a patient has signed a general consent clause, the patient can still refuse medical treatment or procedures. However, in exceptional or emergency situations a doctor may be legally justified in performing surgery or providing treatment without the patient's consent.
The medical advances are meaningless unless early detection is practiced diligently by those in health care. As such, health care providers are not to be protected from liability where there is expert testimony showing that he or she reduced the patient’s chances of survival. As such, the courts reversed the judgment of the court of appeals and remand the matter to the trial
1 Introduction Causation as an element of a crime can be considered difficult to prove in certain circumstances. This is due to the fact that both factual and legal causation must be proven in order to hold somebody liable for their actions. In certain cases, an exception is made due to the fact that medical negligence acts as a novus actus interveniens and, therefore, the accused cannot be held liable for the death of their victims. In R v Mabole, Judge Young made the statement that if medical treatment is given with “goodwill” and “reasonable efficiency” then the accused in the criminal case cannot comment on the errors that the doctors made when treating the patient. In short, Judge Young meant that an accused cannot rely on medical
This is because the technical aspect involves the giving of diagnosis and it is when missed diagnoses are given that patients are put to harm. The Emergency Department is one which is tasked to give correct and timely diagnoses (Kachalia et al, 2007) and that in the steps taken in the ER such as consultations, admissions and discharge, utmost care should be given so as to avoid malpractice which could lead to lawsuits. Errors in the Emergency Room arise when a doctor gives a wrong diagnosis after misjudgment of symptoms (Tibbles, 2011) and these may be caused by unavailability of timely information, or late access to lab
A deficiency in this duty results in negligence. A basic knowledge of how medical negligence is adjudicated in the various judicial courts of India will help a doctor to practice his profession without undue worry about facing litigation for alleged medical negligence. Keywords: Cconsumer protection act, negligence, reasonable care Go to: INTRODUCTION Lately, Indian society is experiencing a growing awareness regarding patient 's rights. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability, claiming redressal for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the
The Supreme Court in the case of Kusum Sharma & Ors vs. Batra Hospital and Medical Research held that each every case has different facts and circumstances. One cannot ignore that medicine is an evolving subject and one cannot always predict its outcome. The operations done by the medical practitioners contain certain calculated risk and if that risk taken doesn’t work out then it cannot be construed as negligence in the part of the medical practitioner if he has taken reasonable care and caution at the time of taking the calculated risk. In another landmark case of Jacob Mathew .V. State of Punjab, the Supreme Court was of the view that in some cases of medical profession the doctors are required to make difficult choices.