1. Meaning and definition
2. Essential elements to prove negligence
3. Types: civil, criminal, and contributory negligence
4. Medical negligence and standard of reasonable care
5. Res ipsa loquitur
6. Bolam test and its limits
7. Vicarious liability
8. Consent and negligence
9. Common examples in medical practice
10. Defences and legal consequences
11. Prevention and medico-legal precautions

Professional Negligence / Medical Negligence

Definition

Medical negligence is the absence of reasonable care and skill, or willful neglect, by a medical practitioner during treatment, resulting in harm to the patient.

• The Essentials of Forensic Medicine and Toxicology, 36th ed., p. 51-52

Essential elements of medical negligence

1. Duty of care

• Examining and prescribing for a patient
• Performing an operation
• Giving anesthesia
• Admitting a patient to hospital

2. Dereliction of duty or breach of duty

• Omission: failure to do what should have been done
  Example: Failure to monitor a patient after anesthesia.
• Commission: doing something that should not have been done
  Example: Giving a contraindicated drug despite knowing the patient is allergic.

1. Unjustifiably departs from accepted medical practice, or
2. Uses an accepted method but performs it unskillfully.

• The Essentials of Forensic Medicine and Toxicology, 36th ed., p. 52

3. Direct causation

Doctor’s negligent act or omission → patient’s injury, disability, or death.

4. Damage

• Physical injury
• Disability
• Prolonged illness
• Additional medical expenses
• Mental suffering
• Loss of income
• Death

Standard of care

• Doctor’s qualification and specialty
• Facilities available
• Urgency of the condition
• Accepted medical knowledge at the time
• Patient’s clinical condition

Bolam test

A doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of competent medical professionals skilled in that particular field.

Types of medical negligence

1. Civil negligence

• Civil court
• Consumer commission, where applicable
• Other appropriate legal forum

• Failure to diagnose an obvious condition due to careless examination
• Retaining a surgical instrument or swab in the abdomen
• Wrong blood transfusion
• Giving a drug despite documented allergy
• Failure to obtain proper consent before a non-emergency procedure

2. Criminal negligence

• Operating while intoxicated
• Giving anesthesia without adequate training or basic safety precautions
• Performing a procedure without necessary competence
• Leaving a critically ill patient unattended in a dangerous situation
• Giving a known fatal drug dose with gross disregard for safety

• The Essentials of Forensic Medicine and Toxicology, 36th ed., section FM10.9, p. 59 onwards

3. Contributory negligence

• Patient hides important history, such as drug allergy or anticoagulant use.
• Patient does not follow medical advice.
• Patient refuses necessary investigations or admission.
• Patient does not take prescribed medicine.
• Patient leaves hospital against medical advice and later deteriorates.

4. Corporate negligence

• Employing unqualified staff
• Failure to maintain essential equipment
• Poor infection-control measures
• Lack of emergency facilities
• Unsafe blood-bank services
• Inadequate supervision of staff
• Failure to maintain proper records
• Allowing an untrained person to perform duties beyond competence

5. Vicarious liability

• A hospital may be liable for negligence of its nurse, resident doctor, technician, pharmacist, or ambulance staff.
• A surgeon may be liable for negligent acts of assistants acting under the surgeon’s supervision.

Doctrine of res ipsa loquitur

Conditions for its application

1. The event is of a kind that ordinarily does not occur without negligence.
2. The instrumentality causing harm was under the control of the doctor or hospital.
3. The patient did not contribute to the event.

Examples

• Surgical swab or instrument left inside the patient
• Wrong limb operated upon
• Wrong patient operated upon
• Transfusion of incompatible blood
• Patient falls from an unattended operating table
• Severe burn due to a heating pad under medical control

• The Essentials of Forensic Medicine and Toxicology, 36th ed., section “Doctrine of Res Ipsa Loquitur”

Consent and negligence

Valid consent should be:

• Given voluntarily
• Given by a competent adult patient, or lawful guardian where required
• Taken after explaining the nature of procedure
• Given after explaining important risks, benefits, alternatives, and likely consequences
• Specific to the proposed procedure
• Properly documented, preferably in the patient’s language

Important points

• Consent for one procedure is not consent for another unrelated procedure.
• Blanket consent is inadequate for major procedures.
• In an emergency, lifesaving treatment may be given without consent when the patient cannot consent and no guardian is available.
• Even after valid consent, a doctor remains responsible for performing the procedure with reasonable skill and care.

Common examples of medical negligence

1. Failure to take proper history or perform basic examination.
2. Wrong diagnosis due to careless assessment.
3. Unreasonable delay in referral to a specialist.
4. Failure to attend a patient during an emergency.
5. Wrong drug, wrong dose, wrong route, or wrong patient.
6. Not checking drug allergy before prescribing.
7. Wrong blood transfusion.
8. Retained swab, instrument, or foreign body after surgery.
9. Wrong-site or wrong-patient surgery.
10. Inadequate anesthesia monitoring.
11. Failure to monitor vital signs in a critical patient.
12. Failure to maintain asepsis leading to preventable infection.
13. Discharging an unstable patient prematurely.
14. Failure to document treatment, advice, referral, or consent.
15. Delegating treatment to an unqualified person.
16. Not informing the patient about significant risks and alternatives.

Situations that are not necessarily negligence

• Death despite proper treatment
• Known complication of surgery or treatment
• Failure of treatment despite accepted management
• A genuine difference of medical opinion
• Error of judgment made with reasonable care
• Unavoidable accident
• Emergency treatment with limited facilities, provided reasonable efforts were made
• Patient’s refusal of treatment or failure to follow advice

Defences available to a doctor

1. No doctor-patient relationship existed
   Therefore, there was no duty of care.
2. Reasonable care and skill were used
   Treatment followed accepted medical practice.
3. No breach of standard of care occurred
   The doctor acted as an ordinarily competent practitioner would have acted.
4. No causal connection
   The injury resulted from disease, complication, or an independent cause, not the doctor’s act.
5. Known or unavoidable complication
   The complication can occur despite proper treatment.
6. Error of judgment
   A genuine and reasonable clinical judgment is not negligence.
7. Contributory negligence by patient
   The patient concealed history, refused advice, or did not comply with instructions.
8. Valid informed consent
   Useful where the complaint relates to an explained, known risk, but not a defence to careless treatment.
9. Emergency or necessity
   Urgent treatment was provided in good faith to save life or prevent serious harm.
10. Proper records and documentation
    Detailed case sheets, consent forms, nursing notes, prescriptions, investigation reports, referral notes, and discharge advice support the doctor’s defence.

Prevention of medical negligence

1. Maintain professional knowledge and skills through continuing medical education.
2. Practice within one’s competence and specialty.
3. Refer the patient early if specialist care or better facilities are needed.
4. Take complete history and perform proper examination.
5. Keep clear, accurate, timed, and legible medical records.
6. Obtain informed written consent for invasive and high-risk procedures.
7. Explain diagnosis, treatment plan, risks, alternatives, prognosis, and follow-up advice in understandable language.
8. Check patient identity, drug, dose, route, allergy, blood group, and operative site.
9. Use surgical safety checklists.
10. Ensure aseptic precautions and safe infection-control practices.
11. Monitor patients appropriately, especially after anesthesia, surgery, delivery, or administration of high-risk drugs.
12. Do not alter, destroy, or fabricate records.
13. Communicate respectfully with patients and relatives.
14. Arrange proper handover, referral, and follow-up.
15. Obtain professional indemnity insurance.

Conclusion