Shelley Anandhavalli. E

Negligence is the breach of a legal duty to care.

Negligence is the breach of a duty caused by 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.

Constituent elements

Duty to meet a particular standard of care

Breach/ failure to perform the duty;

a casual connection between Defendant’s failure and Plaintiff’s injury/Consequent damage

Injury itself

CONSUMER

Section 2 (d) (ii) in defining a consumer uses the expression 'hires and avails of".

CONSUMER hires or avails of any services for a consideration which has been paid or promised or partly paid

and partly prom ised, or under any system of deferred payment includes any beneficiary of such services other than the person

who 'hires or avails of the services

the words "any service" in s. 2 (d) (ii) in Consumer Protection Act aims to bring the delinquent medical practitioners within the ambit of Consumer Protection Act.

SERVICEs. 2 (o), Consumer Protection Act defines service.

service of any description does not include the rendering of any service free

of charge or under a contract of personal service

exempts only two types of services:

service free of charge

Contract of service

 

Contract of/for service

Contract of service a relationship of master and servant

it is beyond the ambit of the Consumer Protection Act, 1986, under Section 2(1)(o) of the Act.

Contract for service

a contract whereby one party undertakes to render services (such as professional or technical services) to another, in which the service provider is not subjected to a detailed direction and control.

The provider exercises professional / technical skill and uses his or her own knowledge and discretion.

Indian Medical Association v. V.P. Shantha and Ors [AIR 1996 SC 550]:SC – ‘whether a medical practitioner renders 'service' and

can be proceeded against for 'deficiency in service' before a forum u/the Act?

HELD : medical professionals do not enjoy any immunity from being

sued in contract or tort (i.e. in civil jurisdiction) on the ground of negligence.

even though services rendered by medical practitioners are of a personal nature they cannot be treated as contracts of personal service (which are excluded from the Act). They are contracts for service, under which a doctor too can be sued in Consumer Protection Courts.

THUS A doctor, when consulted by a patient owes him a duty

of care in deciding to undertake the case; the administration of that treatment

Application of Bolam Test‘Bolam Vs. Frien Hospital Management’

set three criteria for the safety of the medical professional:

must possess adequate skill in that area of medical practice;

exercises reasonable care while performing his skill. Mere negligence will not make out a case for

compensation against him but that negligence should have a direct nexus with the injury caused to the complainant. If the injury does not have a direct link towards negligence, no award of compensation exists.

Lakshman Balkrishna Joshi“the practitioner must bring to his task

a reasonable degree of skill and knowledge must exercise a reasonable degree of care Neither the very highest nor a very low degree

of care and competence judged in particular circumstances of each case is what the law requires.

The doctor, no doubt, has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency”

Burden of proof and chances of error

Lies with the complainant.

Higher standard evidence (to support an allegation of negligence against a doctor)

Establish claim against the doctor.

Calcutta Medical Research Institute vs Bimalesh Chatterjee

held that the onus of proving negligence and the resultant deficiency in service was clearly on the complainant.

In Kanhaiya Kumar Singh vs Park Medicare & Research Centre, it was held that negligence has to be established and cannot be presumed.

Some acts that amounts to medical negligence

Failure to attend the patientNon attending complicated deliveryNot revealing HIV positive statusDenture : unfittingInjections wrongly givenForeign matter in the abdomenFailed tubectomy operationForceps deliveryPerforation of uterusContaminated blood transfusionDispensing wrong drugs

INFORMED CONSENT:

Information aboutDiagnosisNature of treatmentRisks involvedProspects of success/prognosisAlternative methods of treatment

Jasbir Kaur v State of Punjab, AIR 1995 P&H 278

In Shri Guru Teg Bahadur Hospital, Amritsar – newlyborn baby was missing from the bed

Later on the child was found in profusely bleeding condition and with one eye totally gouged out with the eyeball, near the wash basin of the bathroom –

hospital authorities contended the mischief of cat, which caused damage

defendants were held liable

THANK YOU