Vol. 4, Issue 5 (2018)
Medical negligence and its issues in India
Author(s): Amal Debnath
Abstract: Doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. In the tort of negligence, professionals such as lawyers, architects and doctors are included in the category of skilled persons who profess some special type of skill. Therefore, any person performing such duty should possess the requisite skill to do the work. Similarly, the patients, as soon as they step into the premises of the hospital, they equate the doctor to God and believe that he possess the requisite medical expertise. Here, the standard to be applied to adjudge the case at hand would be that of an ordinary competent person exercising ordinary skill in the profession. Negligence is the breach of a legal duty to care, carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence. Many legal cases against doctors, have established that the doctors were negligent in their medical service, and have claimed and received compensation. As a result, a number of legal decisions have been made on what constitutes negligence and what is required to prove it. There is no question of warranty, undertaking, or profession of a skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. Hence once there exist a duty which has to be established by the patient, then the next step is to prove breach of such duty and the action.