Under our law, medical negligence, like other forms of negligence, is a criminal offence for which a doctor can even be imprisoned. This is so in many other legal systems also. But what amounts to medical negligence? Medical negligence occurs when a patient is harmed because a doctor has failed to perform competently under accepted standards of medical care. In order to prove medical negligence it must be shown that the doctor was negligent in some way .
Medical Negligence It was rightly said by Richard Seizer “If people understood that doctors weren't divine, perhaps the odor of malpractice might diminish.” For a patient, the doctor is like God. And, the almighty can never commit any mistake but that is what the patient thinks or believes. In reality, doctors are human beings. And, to err is human. Doctors may commit a mistake, but committing a mistake due to one’s own carelessness is defined as negligence.
Every act of negligence by the doctor shall not attract punishment .Slight neglect will surely not be punishable and ordinary neglect,as the name suggests,is also not punished.If we club these two,we get two categories:negligence for which the doctor shall be liable and that negligence for which the doctor shall not be liable. The liability of the doctor shall be civil or criminal or both. One of the essential elements in criminal law is mens rea – the guilty mind or an evil intention. The question arises as to whether in cases of medical negligence – whether slight, ordinary or gross – is there any criminal liability? As mens rea is essential, it is difficult to argue that the doctor had a guilty mind and was negligent intentionally.
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
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. ELEMENTS OF NEGLIGENCE CLAIMS The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope
Since no man is perfect in this world, it is evident that a person who is skilled and has knowledge over a particular subject can also commit mistakes during his practice. Too err is human but to replicate the same mistake due to one’s carelessness is negligence. The fundamental reason behind medical error or medical negligence is the carelessness of the said doctors or medical professionals it can be observed in various cases where reasonable care is not taken during the diagnosis, during operations, sometimes while injecting anaesthesia
YES! People make mistakes,its called being human.Men are given the nature of human,because there is a reason god is called the almighty.Since no man is perfect in this world ,it is evident that a person who is skilled and has knowledge over a particular subject can also commit mistakes during his practice. It is very difficult to define negligence;however,the concept has been accepted in jurisprudence . Negligence by doctors has to be determined by the judges who are not trained in medical science.They rely on experts’ opinion and decide on the basis of basic principles of reasonableness and prudence.This brings into a lot of subjectivity into the decision and the effort is to reduce it and have certain objective criteria .This may sound simple but is tremendeouly difficult as medical profession evolves ans experimentation helps in its evolution.Thus,there is a constant tussle between the established procedure and innovative methods .These issues make it extremely . For a Patient, the doctor is like God.
Medical Negligence: The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments it is said have assigned various meanings to negligence. The Apex Court in Jacob Mathew v. State of Punjab , observed: Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something
It is a principle where negligence can be inferred and the plaintiff cannot prove its exact cause. The loss or injury would not have occurred under normal circumstances if the party have performed and upheld his duty of care. Evidence may not be present as the facts are so explicit and obvious that they would not normally occur if there were no forms of negligence present. If the defendant had upheld proper duty of care, the injury to the plaintiff would not have occurred. It is a rule of evidence which creates a presumption that a defendant acted negligently simply because a particular accident
Negligence: Negligence is conduct that falls below the standards of behaviour established by law for the protection of others against unreasonable risk of harm. (Gayle, 2015) The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might forcible cause harm to other people. (Fein man, M. 2011) Negligence can be defined as a failure to take reasonable care or steps to prevent loss or injury to another person. Negligence is when a nurse who is fully capable of caring does not care in the way a reasonably prudent nurse would, and as a result the