Medical Negligence/
Malpractice
Dr Channanna C
Professor and HOD
Dept of General Surgery
PESIMSR
PES Institute of Medical Sciences & Research
Definition
• It is the failure to execute
• Reasonable degree of skill and care
• Or wilful negligence of a medical practitioner
• Which causes some harm or bodily injury or death of the
patient
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Acts contributing to negligence
• Act of commission
• Doing something a reasonable man would not do
• Act of Omission
• Not doing something that a reasonable man
would do under a circumstance
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Ingredients of medical negligence
• 4 D’s
1. Duty of care
2. Dereliction of duty of care
3. Direct causation
4. Damage
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• Burden of proving the negligence
Patient
• Burden of proving innocence
Doctor
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Doctrine of Res Ipsa
Loquitur
• ‘thing speaks for itself’
• Here, the patient need not prove the
negligence
• Doctor will be held liable
• This is applied according to “ doctrine of
common knowledge”
• Can be applied to both civil and criminal suits
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Examples
• Operation on a wrong patient on a wrong part
• Loss of hand due to prolonged splinting
• Forgotten instruments
• Mismatch transfusion
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Novus actus Intervenens
• ‘unrelated act intervening’
• There is always a logical sequence of events
• If such a continuity is broken by an entirely new and
unexpected happening
• Due to negligence
• Ex: Accident → laparotomy → forgotten instrument →
Doctor will be held liable
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Defence plea
• In some situations it can be a defence plea
• 1st doctor prescribed some medication
• Meanwhile patient visits some other doctor
• 2nd doctor prescribes another wrong drug
• Patient dies due to the second drug
• 1st doctor wont be held liable
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Civil and Criminal Negligence
• Civil negligence
• Not defined in IPC
• Pay damages
• Criminal negligence
• Section 304A IPC
• 2 years imprisonment +/- fine
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CIVIL Negligence CRIMINAL Negligence
No specific violation Clear violation of law
Simple absence of skill and care Gross absence of skill and care
Consent – good defence Consent-Not a defence
Civil court trial Criminal court trial
Strong evidence is sufficient Guilt should be proven
Pay damages 2 years imprisonment
Complainant- sufferer Complainant- public prosecutor
(state)
Burden of proof- patient Doctor has to prove innocence
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Professional negligence Professional Misconduct
Absence of skill and care Violation of medical ethics
Duty of care- present Need not be present
Damage- present Need not be present
Trial- civil or criminal courts State medical council
Punishment-compensation, fine or Erasure
imprisonment
Appeal- to the higher court Appeal- to the central government
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Defences against medical
negligence
• Calculated risk doctrine
• An element of risk is there in all surgeries
• Injury may occur even though reasonable skill
and care has been taken
• eg: patient dies during cardiac surgery (5-
10%)
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Contributory negligence
• Any unreasonable conduct from the part of the patient
• Which is combined with doctor’s negligence Causing
injury
• Eg: He doesn’t give a history of drug allergy
• Usually it’s a partial defence
• Court says that it is the duty of the doctor to see whether
the patient is following his instructions
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Limitations to contributory negligence
(a) Last clear chance doctrine
● When doctor was given a last chance to correct
the negligence patient caused
● But if he fails, It is not a defence plea
(b) Doctrine of avoidable consequences rule
● Ex: If doctor knows that the patient is neglected
● Recurrent follow up could have avoided these
consequences
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VICARIOUS LIABLITY
● Respondent superior
● Captain of the ship doctrine
○ Liability for act of another
○ Responsibility lies on the superior for the act of the
subordinate
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3 ingredients
● An employee- employer relationship must be there
● The conduct should be within the scope of his employment
● The negligence occurred while on the job
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Corporate Negligence
● Failure of administrators of the hospital to provide
adequate facilities
● Not providing standard equipment and competent
employees
● Hospital is liable of the damage
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Products liability
● Damage due to faulty, defective or negligently designed
equipment
● Bad drug
● Manufacturing company is liable
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Medical Maloccurence
● Inevitable accidents may happen even if adequate precautions care
and skill are applied
● Always a factor of risk
● So doctor cannot be blamed
● Ex: Amniotic fluid embolism following Cesarean section
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Therapeutic Misadventure
● Somewhat similar to medical maloccurence
● Its more related to drugs
● Diagnostic procedures using dyes
● Its related to the treatment given
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Error in judgement
● Purely accidental compared with a doctor of similar
competence
● Can’t be held liable
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Res Indicata
● Case against the doctor should be filed within 2 years of
alleged negligence
Res Judicata
● ‘the things have been decided’
● Once a case is completed between two parties it cannot be
tried again.
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Composite negligence
● Damage has occurred due to the negligence of two or more
persons
● Not from the part of the patient
● Note:- Informed consent is not a defence in negligence
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THANK YOU
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