Medical Negligence (Malpraxis)

• The Essentials of Forensic Medicine and Toxicology, p. 52
• P. C. Dikshit Textbook of Forensic Medicine and Toxicology, p. 29

Essential elements

1. Duty of care
   A doctor-patient relationship must exist. The doctor has a duty:
   • To decide whether to undertake the case
   • To decide the appropriate treatment
   • To administer treatment with reasonable care and skill
2. Breach of duty
   The doctor fails to meet the accepted standard of care by:
   • Omission: failure to do what a reasonably competent doctor should do
   • Commission: doing something which a reasonably competent doctor would not do
   Breach occurs if the doctor unjustifiably departs from accepted practice or performs an accepted procedure unskillfully.
3. Direct causation
   The breach must be the direct and proximate cause of injury or death.
4. Damage
   There must be actual harm, such as injury, disability, prolonged illness, financial loss, or death.

Standard of care: Bolam test

Types of medical negligence

1. Civil negligence

• A civil wrong.
• The patient, or relatives in case of death, can sue for compensation.
• It may be pursued before a civil court or consumer forum where applicable.
• Degree of proof required is comparatively lower, based on preponderance of probabilities.

2. Criminal negligence

• Arises when negligence is gross, reckless, or of a very high degree.
• The purpose is punishment, such as fine or imprisonment.
• Mere error of judgment, accident, or ordinary negligence does not ordinarily amount to criminal negligence.
• The Supreme Court in Jacob Mathew held that criminal liability requires a much higher degree of negligence. Review of Indian judgments

3. Contributory negligence

• The patient contributes to the injury by their own act or omission.
• Examples: not following medical advice, concealing relevant history, taking contraindicated drugs, leaving hospital against advice.
• Compensation may be reduced depending on the patient's contribution.

4. Corporate negligence

• Negligence by a hospital or institution due to failure to provide:
  • Competent staff
  • Adequate equipment
  • Safe premises
  • Proper systems, supervision, and records

5. Vicarious liability

• An employer may be held liable for negligent acts of its employees performed during the course of employment.
• Example: a hospital can be liable for negligence by its nurses, resident doctors, or technicians.

Res ipsa loquitur

• Surgical instrument or swab left inside the patient after surgery
• Wrong limb operated upon
• Wrong blood group transfused
• Severe burn due to an improperly used cautery or hot-water bottle

Common examples of medical negligence

• Failure to diagnose a condition due to inadequate examination
• Delay in referral or treatment
• Wrong drug, wrong dose, wrong route, or drug given despite known allergy
• Operation without valid informed consent, except in emergency
• Failure to monitor an anaesthetized or critically ill patient
• Retained swab or instrument after surgery
• Transfusion of incompatible blood
• Practising beyond one’s qualification or competence
• Inadequate maintenance of medical records

Prevention of medical negligence

1. Practise only within one’s competence and qualification.
2. Obtain valid informed written consent for procedures.
3. Take proper history, conduct examination, and maintain clear records.
4. Explain diagnosis, risks, alternatives, prognosis, and follow-up advice.
5. Follow accepted clinical guidelines and standard operating procedures.
6. Refer the patient early when specialist care is necessary.
7. Ensure correct patient, procedure, site, drug, dose, route, and blood group.
8. Maintain good communication, empathy, and professional behaviour.
9. Do not alter, destroy, or fabricate medical records.
10. Obtain professional indemnity insurance.

Conclusion