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MEDICAL NEGLIGENCE

MEDICAL NEGLIGENCE. Presented by. Prof. Nirmal Kanti Chakrabarti Director, KIIT Law School KIIT University Bhubaneswar. Negligence.

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MEDICAL NEGLIGENCE

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  1. MEDICAL NEGLIGENCE • Presented by. • Prof. Nirmal Kanti Chakrabarti • Director, KIIT Law School • KIIT University • Bhubaneswar

  2. Negligence • 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

  3. Doctors Liability in Ancient India: Kautilya’s Arthasastra • The doctor is mandated to report to the State whenever he is called to a house to treat a severely wounded person and also patients suffering from unwholesome food or drink. This will help him in saving himself from the criminal accusations of not attending to the patient.

  4. Health Care at International Level • 1. Article 25 Universal Declaration of Human Rights,1948 • 2. Art.12 Covenant on Economic, Social and Cultural Rights,1966 • 3. Art.2 World Health Organization Constitution

  5. Legal Framework in India • 1. Tort Law & Constitutional Law • 2.Indian Penal Code; 3. Fatal Accident Act 1855; 4. Dangerous Act 1930; 5. Drugs and Cosmetics Act 1940, ; 6. Drugs Control Act 1950; 7. Indian Medical Council • 1956; 8. The Dentists Act,1948; 9. Drugs and Magic Remedies (objectionable Advertisement s)Act 1954 ;10. Medical Termination of Pregnancy Act Act 1975; 11’ The Consumer Protection Act,1986; 12. Pre-natal Diagnostic Techniques(Regulation and Prevention of Misuse) Act 1994 ;13. Transplantation of Human Organs Act,1994;

  6. Liability under Tort Law • Constituents of Negligence: • 1. A legal duty to exercise due care; • 2. Breach of the duty; and • 3. consequential damages.

  7. Liability of Doctors • 1. A duty of care in deciding whether to undertake the care; • 2. aA duty of care in deciding what treatment to give; and • 3. a duty of care in the administration of that treatment

  8. BOLAM’S case: • In the landmark Bolam case It was held that: In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; . Negligence means failure to act in accordance with the standard s reasonably competent medical men at that time.

  9. The Supreme Court of India discussed the conduct of professionals and what may amount to negligence by professionals in Jacob Mathew’s case(Jacob Mathew vs. State of Punjab AIR 2005 SC 3180):

  10. Smt. Madhubala vs. Government of NCT of Delhi; 2005 (118) DLT 515 • The Delhi High Court laid down in 2005 that in civil law, there are three degrees of negligence: • (i) lata culpa, gross neglect • (ii) levis culpa, ordinary neglect, and • (iii) levissima culpa, slight neglect.

  11. CRIMINAL LIABILITY • I. P. C. • S. 304a: Causing death by Negligence • S. 88. Act not intended to cause death, done by consent in good faith for person’s benefit • Cr.P.C. 357; 357A • Good faith- (s.52) Nothing is said to be done or believed in ‘good faith’ which is done or believed without due care and attention

  12. Dr. Suresh Gupta vs. Government of N.C.T. of Delhi(AIR 2004 SC 4091) • In Dr. Suresh Gupta’s Case the court held that • The legal position was quite clear and well settled that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was so reckless as to endanger the life of the patient, criminal law for offence under section 304A of Indian Penal Code, 1860 will apply.

  13. Consumer Protection Act, 1986 • In 1995, the Supreme Court decision in Indian Medical Association vs. V.P Shantha (1995)6 SCC 651 brought the medical profession within the ambit of ‘ service’ as defined in the Consumer Protection Act, 1986.

  14. Contd. • Section 2 (1) (g) CPA defines ‘deficiency in service ‘ as any fault , imperfection, shortcoming, or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. • A determination about deficiency in service for the purpose of Section 2 (1) (g) is to be made by applying the same test as is applied in an action for damages for negligence.

  15. Liability under Contract Act • Vicarious Liability of Hospitals for acts of its Doctors • (Syed Abdul Khader v. Rami Reddy, 1979 2 SCC 601) • Contractual Liability of a doctor if he makes a promise to produce a particular result(s.73)

  16. Frontiers of Medical Technology • Medical device innovation embraces the frontiers of science and engineering, adapting computer technology, nanotechnology and biotechnology to medical applications. • Medical device technology can be directly and indirectly affected by a wide range of laws and regulations and will face different regulatory and legal hurdles. • The Medical Devices Regulation Bill ,2006

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