Therefore, it gives rise to the duty of a doctor to abstain from doing any such act himself or to assist any patient in doing so otherwise it will rise to criminal liability against the doctor. In Jasbir Kaur v. State of Punjab, a newly born child was found missing in the night from the bed in S.G.T.B.Hospital, Amritsar. # AIR 1996 SC 550 # Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or have been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Later on she complained of pain and therefore subsequent operation was performed and the abdominal pack left behind was removed. This can involve violence with the intent to injure, but also includes acts which although not intended to injure, still interfere with a person’s autonomy and the right to security and dignity. Appendix 1. This was a case where a mentally handicapped woman, who was an inpatient in a mental health hospital, was having sexual relations with a male patient in the same hospital and an application to the court was made for permitting sterilization operation which was held to be in the best interest of the patient. She should not have been exposed to the vagaries of weather. It is impossible to give one general, comprehensive definition of negligence as it arises from a number of relationships. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The corporation’s employees did this with the greatest of care. B . Subjective Theory- According to this theory of Salmond, negligence denotes ‘State of mind’. The types of torts? The complaint was dismissed as the medical services in the Government Hospital were free of charge to everybody. But this would not do alone. Ashim Saha succumbed to his injuries. With the growing number of cases of medical negligence, it has acquired itself attention of the lawmakers. Three major types of torts (wrongful acts) leading to legal liability include: Intentional torts (e.g., assault and battery) Negligence torts (e.g., car accidents) Strict liability torts (e.g., product liability or oil spill liability) 1. Battery – the illegal act of harmful or offensive contact with another person’s body. The maxim res ipsa loquitor was applied and the doctor and the hospital were held liable. This state of mind varies from person to person and the person is liable only for his intentional acts only and not otherwise. Table of Legislation; Show more. Basically there are two theories about the negligence in the law of tort. The plaintiff contended replacement of the child while the hospital authorities contended that the child was taken away by a cat which caused the damage to him. The doctor “must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This seems to be direct contravention of inherent human rights, because if the child was not severely ill treatment without consent would be regarded as degrading treatment at the worst and breach of a person’s physical integrity at best; but in this case will most likely result in the termination of the child’s life. This type of tort case takes place when an individual intentionally engages in actions that effectively cause injury or damage to another person. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty. The judgment of the Madras High Court was set aside by the Supreme Court. It is noteworthy that the complainants in the above two cases, could not get any relief under the provisions of the Consumer Protection Act, 1986, but in such kinds of cases the relief was available in the law of tort if they would have filed suits for damages for the tort of negligence in the civil court. Voluntary euthanasia is where the consent is taken from the patient, whereas, non-voluntary euthanasia is where the consent is unavailable i.e. Intentional torts are a wrongful act that someone plans, carries out, and is fully aware of their actions. The Consumer Protection Act, 1986 # 1932 AC 562 # Winfield on Tort. There may be one or more perfectly proper standards and if he conforms to one of these proper standards, then he is not negligent.” The above test laid down by Mc Nair,J., has been repeatedly approved by the House of the Lords. Negligence is defined as the failure to use the ordinary care that a reasonably prudent person would use in the face of reasonably predictable outcomes which failure causes injury to another person’s person or property. In this article, well take a closer look at how negligent torts and intentional torts are defined, offer some examples of each, and more. Basically, society is saying that the activity is so dangerous to the public that there must be liability. The harm need not be intended, but the act must be intentional, not merely careless or reckless. He was taken to the hospital for treatment. M.L.Singhal v. Dr. Pradeep Mathur, is another case where the plaintiff’s wife suffered from anaemia and had problem in urinating, was admitted in Sir Ganga Ram Hosital, Delhi, under the treatment of Dr. Mathur. There are three main types of tort law cases: Intentional Tort: When a person deliberately violates someone else’s rights such as the right to privacy, emotional harmony and safety such actions are categorized under intentional torts. These can damage their brain as well as body. The burden to prove negligence lies on the claimant. Euthanasia was described to be of two types: 1. Other examples of absolute liability situations would be harm caused by storage of flammable gas and explosives, crop dusting when the chemical that is used is dangerous, factories which produce dangerous fumes, smoke or soot in populated areas, and the production of nuclear material. All tortious charges of intentional interference with person/property involve intent, which provides for a civil wrong, knowingly committed by the offender. a lethal injection given to a person with terminal cancer who is in a terrible agony. In India, euthanasia is not prevalent, only passive euthanasia is allowed subject to certain conditions given by Supreme Court in the above cases. Intentional torts are intentional actions that result in harm to the plaintiff. It may be pointed out that negligence may mean a mental element in tortuous liability or it may mean an independent tort. This is what all, the person approaching the professional can expect. He then put his leg in the plaster. A breach of any of these duties gives a right of action for negligence to the patient. Bingham L.J. Here Ms. Akli would have been infected with the dreaded disease if the marriage had taken place and consummated. 17.17 Immunity from liability in tort is perhaps the most concerning type of executive immunity from civil liability, given its effect on people’s fundamental rights. The doctor was not only negligent but also he was callous in his approach when he forced the parents to shift the child from the children ward to veranda outside in the cold rainy weather. Common torts include: assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress. It can also be taken by the doctors attending the patient. In Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, the facts were that the son of the respondent, aged 20 years, met with an accident on a sea beach, which resulted in the fracture of his left leg. One bottle of the same blood was transfused. In C. Sivakumar v. Dr. John Arthur, the plaintiff had the problem of blockage of urine, and the doctor in an attempt to perform the operation for curing the problem, totally cut-off his penis. Thus, the doctor was liable for the death of the child. After that another bottle of blood was obtained from the blood bank. The code will then determine if the injured party should be awarded damage or not. The law of torts in Australia derives from the legal system of the UK. The Law of Torts (5th edition) – S.P.Singh 3. The hospital was liable to pay compensation of Rs. It means that a thing speaks for itself, i.e., the facts and circumstances which the plaintiff has proved established a prima facie case of negligence against the defendant. It was held that there is no statutory provision in India as to legal procedure for withdrawing life support to a person who is incompetent to take decision in this connection. She was advised surgery and therefore she came to India for removal of her uterus. These principles were laid down by the House of Lords in F. v. Berkshire Health Authority. The degree of skill and care required by a medical practitioner as explained in Halsbury’s Law of England is: The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Careless conduct that results in damage to another is negligence. In euthanasia, a physician or a third party administers it, while in physician–assisted suicide it is the patient himself who does it, though on the advice of the doctor. It involves a personal element. The first scenario described above encompasses negligent torts, while the second captures intentional torts. Was this defense valid? 2. Due to burn injuries she could not be clothed. 5. In a suit for damages against a doctor the onus of proof is upon the plaintiff to prove that the doctor was negligent and that his negligence caused the injury of which the plaintiff complained. Click here In these circumstances this hardship can be avoided by the application of the maxim ‘res ipsa loquitor’. In State of Haryana v. Santra, the facts were that Santra was having seven children and therefore approached the C.M.O. The plaintiff became permanently impotent. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. It is not always necessary that all the circumstances be under the defendant’s control. They are deliberate acts intended to injure others, or to interfere with another person’s rights. The Law of Torts – Dr. R.K.Bangia Legislations: 1. 20,000 as compensation to the complainant. When a doctor attends to his patient, he owes him certain duties of care like; 1. The owner of the house sued the corporation for the damages. In general, such defects in the treatment never come to the limelight. Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff was living with her husband in Saudi Arabia. He requires a particular level of learning to be a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. His wife was suffering from some ailment for which she was operated for but, instead of improvement, she became paralytic. The hospital’s doctor while treating the lumps removed her uterus without justification. The nursing staff was negligent and not the doctor. So the view taken was that right to live does have the other side which is right not to live. The defendant was vicariously liable for the negligence of the hospital staff. Tort, in common law, civil law, and the vast majority of legal systems that derive from them, any instance of harmful behavior, such as physical attack on one’s person or interference with one’s possessions or with the use and enjoyment of one’s land, economic interests, honor, reputation, and privacy. Withdrawal of life system in such cases does not amount to any criminal act for the doctor’s acts in the best interests of the patient, and the death of the patient is regarded as having been exclusively caused by the injury or the disease by which he was suffering. Thus, there was additional economic burden on the poor person. The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India of State Medical Councils would not exclude the service rendered by them from the ambit of Consumer Protection Act. The defendant. They are: 1. Medical opinion may differ with regard to the course of manner which is acceptable to the medical profession and the court finds that he has attended on the patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. Bothe the doctor and the State were held liable for negligence. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The Delhi High Court in Madhubala v. Government of N.C.T. Intentional Interference with a Person. Note* we only accept Original Articles, we will not accept Intentional Torts • any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. It is important to note that the Supreme Court held that the parents of the child were consumers having hired the services, and the child was a consumer as the beneficiary of such services. Which of the following describes elements of all valid contracts. Doctors are responsible not for every act by which a patient suffers but for those acts in which the doctor has acted negligently. The court also held that the payment of Rs. Immediately thereafter, the child suffered cardiac arrest. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A breach of duty is committed by a doctor when he does not perform the standard and degree of care like reasonable doctor of his time or as a member of his class. However, in some areas, liability can arise even when there is no intention to cause harm or negligence. A further categorisation of euthanasia as given in paragraph 40 of Aruna case is between voluntary euthanasia and non-voluntary euthanasia. Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff got herself operated for the removal of her uterus in the defendant hospital. Every type of intentional tort can arise in the healthcare setting. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. The doctor who performed the operation and the hospital were held liable to pay compensation of Rs. Active Euthanasia which entails the use of lethal substances or forces to kill a person e.g. The result is that sections 306 and 309 of the IPC which respectively make attempt to suicide and abetment to suicide punishable offences remains constitutionally valid. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. With the growing number of cases in India and the world at large it become a prime concern that should the remedies be still given under a law of tort and Consumer Protection Act, 1986 or if the time has come to enact a legislation to carve out the remedies for the patients who have suffered in serious ways due to the negligence of the doctors or the medical authorities. But when a patient is incapable, for one reason for another, of giving his consent, a doctor can lawfully operate upon or give other treatment provided that the operation or the other treatment concerned is in the best interests of the patient if it is carried out in order to either save his life or to ensure improvement or prevent deterioration in his physical or mental health. She got operated in Apollo Hospital, Madras but due to the negligence of the doctor abdominal pack has been left in the abdomen. Understanding Unintentional Tort The most common type of unintentional tort is negligence. Professor Lindsay Wiley from American University Washington College of Law opens up Torts with a brief overview of the three main types of torts. She developed some gynaecological problem. Under the English Law as laid down in Bolam v. Friern Hospital Management Committee, a doctor, who acts in accordance with a practice accepted as proper by a responsible body of medical men, is not negligent merely because there is a body of opinion that takes a contrary view. An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damages to another. Assault Battery Invasion of privacy false imprisonment intentional infliction of emotional distress fraud. The test here also in determining liability would be whether the doctor acted in accordance with the practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of the treatment. In all the above cases, it is manifest that the doctor, or the nursing staff, or the hospital authorities have done the treatment negligently. They include intentional torts, negligence and strict liability. Striking a person accidentally would not be an intentional tort since there was not intent to strike the person. This may, however, be a negligent act. This is also known as “stealing” in many jurisdictions. The requirement is that mere happening of the accident should tell its own story and raise the inference of negligence on the part of the defendant. What is a tort? That the thing causing the damage be under the control of the defendant or his servant - The first requirement is that the happening of the accident must be evidence of negligence on the part of the defendant or of someone for whose negligence he is responsible. 2. Further the claimant failed to report about irregular menstrual cycle to the hospital which was asked for. Examples of torts include negligence, assault, false imprisonment, or medical malpractice. Unlike intentional torts, negligence cases do not involve deliberate actions, but instead are when an individual or entity is careless and fails to provide a duty owed to another person. The maxim res ipsa loquitor acts as a rescuer for the complainant by easing their burden of proving the negligence of the doctor of the hospital authorities in the cases of gross negligence which is manifest in the very act of the doctor itself. Joint Director of Health Services, Shivagangal v. Sonal, was another case where the wife of the plaintiff underwent a family planning operation and was discharged the same day. JavaScript seems to be disabled in your browser. 2. That the defendant committed the breach of the said duty. Indian Penal Code 2. Judged by this standard, a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in the given case, the skill which he did possess. 5, 80,000 to the plaintiff. Here, the doctor failed to prove the same. It is not every slip or mistake which imports negligence. This case treats negligence as a type of conduct and not a particular state of mind. In spite of their precautions, some flying fragments of rock damaged a neighboring house. It is his duty to prove negligence on the part of the doctor. You must have JavaScript enabled in your browser to utilize the functionality of this website. 10. The court held that the rule of secrecy is subject to the exception when circumstances demand disclosure of the patient’s sickness in public interest, particularly to save others from immediate and future health risks. There was leakage in catheter and the patient developed bed sores which hastened the death of the patient. The standard of care is not of an ordinary prudent man but of an ordinary prudent doctor who belongs to that category to which the doctor belong who is to be judged by that standard. It was held that it was not the case of res ipsa loquitor. Duty covers wide range so wide is the duty is, the court is to decide. But if the events leading up o the accident were under the control of others besides the defendant then the happening of the accident is insufficient evidence against the defendant. L.R. 8lakhs to the plaintiff. It is a relief for the patients who have been a subject of such gross negligence. In the cases of specialists, more degree of care is required. Medical negligence calls for a comparative high degree of care which is expected from a doctor of a reasonable degree. 1, 25,000 as compensation for the death of the deceased. Since many of these acts also may be charged as crimes, you may notice some similarities. The rule that it is for the plaintiff to prove negligence of the defendant may cause hardship to the plaintiff if it is impossible for him to know what precise acts or omissions led to his injury or damage, and this is most obviously so, where the cause of the damage is peculiarly within the means of knowledge of the defendant who caused it. As leader of your own healthcare facility, what steps could you take and what processes could you implement to reduce the risk of this tort occurring in your own facility? If a person has acted to the best of his ability then he cannot be held liable for negligence. In T. T.Thomas v. Elissar, the facts that the plaintiff’s husband was admitted in the hospital due to severe abdominal pains. References: Books: 1. Kamla Sharma, was operated for removal of gallstone in SMS Hospital, Jaipur. Tort law is the area of law that protects people from bad acts of others. Careless conduct that results in damage to another is negligence. The treatment resulted in shock and caused the death of the patient. Striking another person in a fight is an intentional act that would be the tort of battery. The conclusion of negligence was drawn against the doctors by applying the principle of res ipsa loquitor and the Government was vicariously liable. 2. However, society is not going so far as to outlaw the activity. Therefore, basically these 4 elements are to be checked in a tort of negligence. 3. Medical negligence changes its form, from a simple tort whereby a person is given a wrong treatment and may vomit due to that to a dangerous life harming tort whereby the patient loses his life due to a simple injury of fracture. Thus, the provisions of the Consumer protection Act give the consumer an additional remedy besides those that may be available under other existing laws. The National Commission held that services under CGHS were rendered free of charges to everybody and under the contract for services; such services are excluded from section 2 (1)(o) and the complainant was not a consumer within the meaning of 2 (1)(d). 3. The court held that the compensation can be awarded only if the failure of the operation is attributable to the negligence of the doctor and for the failure due to natural causes. Hence the complaint was dismissed. in Eckersley v. Binnie, summarised the Bolam test in the following words: From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. The child was found profusely bleeding and with one eye totally gauged near the wash basin of the bathroom. (Note: In legalese, tort is just another word for a legal wrong committed by one person against another.) The Supreme Court also held that the principle of res ipsa loquitor may apply in certain cases. It was necessary to blast rock with dynamite. the patient is in comma or is otherwise unavailable to give consent. But the initial onus of proof lies upon the plaintiff. However, the decision should be taken bonafide in the best interest of the patient. There was no proper diagnosis and if the surgeon had not performed this operation, the plaintiff could have been saved from the brain damage. Bhutani, the complainant, a retired Government Servant, paid Rs. There are basically three types of torts: An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damages to another. The most familiar health care tort is termed “professional negligence.” In fact there is only one tort, negligence. The maxim is not a principle of liability but a rule of evidence. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. The type of unintentional tort described in the case. Intentional torts commonly include such issues as assault and/or battery, false imprisonment, invasion of privacy, theft, property damage, fraud or other deception, and trespassing. Most intentional torts are also crimes. Has acted negligently the consent is taken from the patient another. child... Nursing staff was negligent and not for every act by which a patient suffers but those... In Aparna Dutta v. Apollo hospital Enterprises Ltd., the plaintiff and intentional torts necessary all. Were the beneficiaries of CGHS type of unintentional tort is just another word for legal. 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