Medical Negligence: Meaning, Defences & Scope under the Civil Laws
The word “negligence” and particularly the term “medical negligence” has been widely heard of, however, the etymology of these words cannot be plainly implied but rather on the contrary have to be studied from the point of view of both law as well as medicine. The term “negligence” means failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation. Talking about negligence as per civil law it has often been defined as the breach of legal duty by an act of carelessness and callousness where the law mandates attention. In the case of Mrs. Moni Sen v. State of Kerala (SA. No. 832 of 2000(G)), the Hon’ble Kerala High Court held that “in the case of medical man, negligence means failure to act by the standards of a reasonably competent medical man at the time. There may be one or more perfectly proper standards, and if he conforms to one of these proper standards, then he/she i.e. the Medical Practitioner, is not negligent”. Therefore, medical negligence has three essential ingredients i.e.
- A legal duty of the party complained of to exercise due care towards the party complaining the former’s conduct within the scope of his duty.
- Breach of the said duty.
- Consequential damage that follows.
In order to establish a case of medical negligence the Complainant or the aggrieved person has to prove the above mentioned essentials. Furthermore, if the Medical Practitioner which includes Doctors, Nurses, Clinics, Hospitals including the Para Medical staff if can establish that have carefully exercised due care and there exists no breach of duty on their party and the damage (if any) is not caused due to their direct actions and inactions then there exists no negligence or medical negligence on their part.
Authored By: Adv. Anant Sharma