This article is written by Sneha Mahawar and Kishita Gupta. This article aims to explain the two terms negligence and malpractice along with differentiating them from each other. The article includes key elements, origin of the concept, types and landmark judgments related to malpractice and negligence.
it has been published by Rachit Garg.
Table of Contents
Introduction
In our daily lives, we tend to use the two terms “negligence” and “malpractice” interchangeably. However, negligence and malpractice are legally two distinct concepts. Both may indicate that a defendant is responsible for the victim’s losses, but depending on whether the plaintiff is claiming negligence or malpractice on the part of the defendant, the elements that need to be proved and the nature of the claim may change.
The four components of negligence, according to McMinn Law Firm, are the duty of care, breach of duty, factual causation, and damages. Similar to this, malpractice includes four components: the presence of a legal duty; a breach of duty; a causal link between the breach of duty and the injury caused; and measurable harm as a result of the injury caused. According to Robenalt, in order for a claim to be accepted as a legitimate legal case, all four components of malpractice must be satisfied.
Every individual has a duty of care toward each other. However, if that duty is not followed, then it can be termed as negligence. Malpractice can be classified as a form of negligence, as negligence that causes harm is called malpractice.
Key differences between negligence and malpractice
| Basis of distinction | Negligence | Malpractice |
| Meaning | Negligence occurs when one person fails to exercise the care that any reasonable person would have exercised if he or she had been in a similar position and as a result causes harm, damage, injury, or loss to the other person. | Malpractice occurs when a professional breaches their duty of care towards a client. |
| Claims | Negligence claims can be against anyone who has breached his duty of care. | Malpractice claims are brought against professionals who have breached their professional duty of care. |
| Scope | Negligence is a wider term, and includes malpractice. | Malpractice is a narrow term that is a part of negligence. |
| Form | Negligence is not a form of malpractice. | Negligence is a form of malpractice. |
| Result | It is the result of an unintentional action that occurs due to a failure to take the necessary steps that should have been taken under the circumstances to avoid or prevent that harm. | It is the result of an unreasonable lack of skill causing harm, damage, injury, or loss. |
| Failure | Negligence is a failure to exercise appropriate care. | Malpractice is a failure to use the professional set standards in undertaking a particular professional skill. |
| Intent | In cases of negligence, there may or may not be the presence of intent. | In cases of malpractice, the intent is usually present, i.e., knowing that harm may be caused. |
| Example | A driver causing harm to passengers due to his negligence. | A doctor not performing her duties in accordance with medical standards, resulting in harm being caused to her patient. |
Meaning
Negligence
The Latin word “Negligentia,” which means ‘to fail to pick up,’ is the source of the English word ‘negligence,’ which refers to a lack of care. It is a common belief that when someone acts negligently causing injury to another person, that person is legally responsible for the harm under the legal doctrine of negligence. Both criminal and civil wrongs can result from negligence.
Negligence is a synonym for carelessness. As a result, we can describe this as an instance in which one person suffers harm or is hurt as a result of the negligence of another. Although the careless act does not directly cause harm to the other person, it nonetheless constitutes a tort. Negligence occurs when one person fails to exercise the care that any other reasonable person would have exercised if he or she had been in the other person’s position and as a result causes harm, damage, injury, or loss to the other person.
Accordingly, failure to take the necessary steps that should have been taken under the circumstances to avoid or prevent that harm is negligence as opposed to knowingly or deliberately creating that harm.
Malpractice
The term “malpractice” has been derived from two Latin terms, “malus” and “practicare,” which mean “bad” and “to practice,” respectively.
Malpractice refers to the tort that occurs when a professional breaches their duty of care to a client. According to most definitions, a professional’s obligation to a client is to uphold generally recognised professional standards. Of course, it is also necessary to demonstrate the other components of a tort (breach, proximate cause, actual cause, and damages). Lawyers and doctors are the targets of malpractice claims most frequently.
Any action or inaction by a doctor during the course of treating a patient that varies from the accepted standards of care and results in harm to the patient is referred to as medical malpractice. Professional negligence is a particular area of tort law that deals with medical malpractice. The term ‘malpractice’ is not directly used in India. While in the USA the term ‘medical malpractice’ is used, India uses the term ‘medical negligence.’
Legal malpractice is when a lawyer violates the client’s trust and the client suffers as a result. Not every error a lawyer makes is regarded as malpractice. Legal malpractice occurs when a lawyer mishandles a matter out of negligence or malicious purpose and causes injury to a client. In most countries, you must show an attorney-client connection between you and the lawyer, a violation of the duty to provide skillful and competent counsel (negligence), causation, and a monetary loss in order to win a legal malpractice action. In the legal profession also, in India, legal malpractice is known by the term ‘profession misconduct.’
Key elements
Negligence
The judgment delivered in Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd. (1961) is one of the earlier English cases that neatly summed up the elements of negligence. There are three elements to negligence. These are as follows:
Duty of care
There must be a “duty of care” between the plaintiff and the defendant for a negligence claim to succeed. It is a duty to refrain from acting or failing to act in a way that could reasonably and significantly harm others. The obligation is owed to individuals who might reasonably and likely suffer harm as a result of a failure to uphold the obligation.
The Supreme Court of India noted in Jay Laxmi Salt Words (P) Ltd v. State of Gujarat (1994) that a duty, which is the obligation to exercise care and reasonable care, is the central tenet of negligence law. However, the concept of obligation, its reasonableness, and the needed standard of care cannot be constrained. It can’t be fixed inflexibly. The obligation of today is the right of yesterday. The more developed a society is, the more sensitive it gets to the wrongdoing of private or even public officials. Social, economic, and political evolution continuously affect and modify tort law, particularly in the area of negligence.
Breach of the duty
When a duty breach results from a liability separate from the personal obligation assumed by the contract, it is considered a tort and may be considered a tort even though the parties have a contract if the duty in question develops independently of the contract. When a complaint involves a duty breach as a result of the contract’s promises, a breach of contract occurs.
In Dr. C.B. Singh v. The Cantonment Board, Agra (1973), the Court noted that there can be no doubt that the responsibility to exercise caution may arise from common law because the rule is too firmly established. Negligence is nothing more than a failure to uphold a duty of care. This obligation results from the relationship that one person has with another person or authority. These relationships can develop in a variety of situations. It occurs most frequently when someone uses their common law right to use a highway. By doing so, he establishes a relationship with other highway users, placing a responsibility on the local agency in charge of monitoring and managing the roadway to exercise caution. Whether or not the Legislature has authorised the formation of such a hazard, the basic duty of care or precaution is always implicit when a danger has been established by a person or authority. The common law obligation is to notify others of the danger you have posed for them.
The loss suffered by the plaintiff resulted from the defendant’s violation of that duty.
A negligence lawsuit is only actionable if the plaintiff suffers harm or damages that are solely attributable to the defendant’s violation of their duty of care and not from any other cause. If the damage is not reasonably attributable to the defendant’s conduct, the defendant will not be held accountable. The following types of harm could befall the plaintiff: “Physical hurt, harm to reputation, harm to property, financial loss, and mental harm.” The defendant is required to pay the plaintiff for the harm they suffered after the plaintiff establishes such damage.
Malpractice
There are four elements of malpractice. These are as follows:
Duty of care
In cases of medical malpractice, the first and most important element is the existence of a legal duty toward the patient. Now, this duty arises anytime a business connection is made between the patient and the healthcare provider. The fundamental tenet of law is that every individual owes others a duty of care in a civilised society. This idea is extended to the professional setting, where a doctor treating a patient owes him a duty of reasonable professional care. Practically speaking, this is the simplest part for the patient to prove because such a duty is practically assumed every time a doctor takes on a patient’s care. In the absence of a patient-doctor relationship, there is no duty.
In Chandigarh Clinical Laboratory v. Jagjeet Kaur (2007), the National Consumer Disputes Redressal Commission confirmed the conclusions of the District and State Commission, which required the appellant to pay the complainant a compensation of Rs. 25,000 plus costs of Rs. 2,000. Since the patient received inaccurate reports from the appellant’s laboratory, the Hon’ble Commission ruled that medical negligence resulted from the appellant’s failure to exercise due care. The appellant had a “duty of care” to the patient to provide accurate findings.
Breach of duty of care
The patient must use the idea of a “standard of care” to demonstrate a breach of professional duty. While the exact meaning of “standard of care” varies by jurisdiction and can be difficult to apply, in general, the term refers to the treatment that a reasonable practitioner in a similar situation would have given the patient.
In Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole (1968), the Honourable Supreme Court made an observation that every doctor must apply acceptable “standards of care” that are set out in the profession. Any violation of these duties will subject him to medical malpractice liability.
The Supreme Court ruled in State of Haryana & Ors. v. Smt. Santra (2000) that every doctor has a duty to exercise a reasonable amount of care and expertise. However, given that no one is perfect and even the most renowned specialist can make a mistake in diagnosing a disease, a doctor can only be held liable for negligence if it can be demonstrated that she or he failed to act with the degree of care that no other doctor of ordinary skill would have exercised.
Causation
Once a breach of duty of care is established, it must be proven that the professional’s negligence was the direct cause of the injury. This is often proved by demonstrating that the damage was the consequence of the professional’s negligence or that the condition would not have deteriorated or occurred in the absence of the professional’s negligence or error. However, there must be some kind of hurt, injury, or harm. If a professional is negligent but no harm or injury is inflicted, no malpractice claim may be made.
Causation in medical negligence cases implies establishing that negligence occurred as a result of a breach of duty of care, which further resulted in causing an injury. The process of proving the negligence of such a healthcare provider is known as “establishing causation.” Whenever an individual undergoes medical treatment, it is a general assumption that there can be complications, which is why one must prove a breach of duty to take care to establish causation.
For instance, a patient receiving care in a hospital may get an infection while receiving that care, and because the hospital was negligent, the infection might become lethal, leading to the patient’s death. In this instance, many actions combined to cause the person’s death, and it is therefore possible to establish causation.
In Wilsher v. Essex Area Health Authority, a doctor acted negligently and failed to provide a baby with an adequate amount of oxygen at birth, which tragically led to the baby being blind. When the parents of the baby alleged medical malpractice, it was stated that there were five causes for the baby to become blind and the doctor’s negligence is not the sole reason. Thus, the claim was rejected since it was determined that the doctor’s negligence was one of the five causes due to which the baby became blind. The claim was rejected because it was impossible to pinpoint which one of the five causes contributed to the baby’s blindness.
Damages for the breach
One must establish that they were actually harmed or injured by the medical institution or practitioner before claiming damages. The injuries must be quantifiable for the court to be able to value them financially. Medical records and expert testimony can be used to claim damages.
The estimation of damages in a medical malpractice lawsuit is often highly difficult and may take into account a variety of different factors. That may be particularly true when a patient dies or has serious injuries as a result of a doctor’s negligence. Damages in a malpractice case may include things like the price of further medical services and compensation for emotional distress brought on by the doctor’s negligence.
For instance, a child has broke his arm, and he goes to a doctor for medical assistance. If the fracture did not mend properly due to the doctor’s mistake in setting it, the child would have to undergo additional medical procedures to fix the arm. The cost of the additional medical treatment would be included in the damages, and the need for quantifiable injuries would be fulfilled.
Origin of the concept
Negligence
The concepts of justice, equity, and good conscience were used by Indian courts to approve and adopt the English common law as the foundation for Indian tort law in general and Indian negligence law in particular.
In Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum (1997), the Supreme Court concluded that it might be inferred that the Indian judicial system had expressly recognised the common law tort principles developed by the English courts. The degree to which such tort law ideas are appropriate and applicable to Indian circumstances must be considered. Therefore, it is essential to think about and develop our beliefs in line with English tort liability law.
Further, in this case, Justice Ramaswamy remarked that understanding the concept of tortious liability should be guided by the principles established by the House of Lords. Therefore, in order to move forward, it is necessary to analyse the common law of negligence as established by the House of Lords over the years.
Malpractice
The concepts of justice, equity, and good conscience were used by Indian courts to approve and adopt the English common law as the foundation for Indian tort law in general and malpractice law in particular. Two cases altered the legal meaning of the standard of care as it is now used in medical malpractice law.
In the T.J. Hooper, (1931) case, the owner of a tugboat was sued for the value of two barges. The tugboat had become engulfed in a thunderstorm, and the two barges it was transporting had sunk. The barge owners claimed that the T.J. Hooper was unfit for maritime service because it lacked a radio receiver for monitoring vital storm warnings. Furthermore, they claimed that having this radio receiver was “customary” for tugboats. The plaintiff argued that if T.J. Hooper had a radio, the storm might have been averted. Here, Justice Hand delivered a verdict in favour of the plaintiff but not on the basis of custom. He stated that it was not typical for tugboats to be supplied with receivers but that because the procedure was reasonable, the T.J. Hooper’s owners might be held accountable for damages. According to him, if a procedure is appropriate and reasonable but not uniformly “customary,” it can still be utilised to determine the standard of care.
In the case of Helling v. Carey (1974), the plaintiff sued her ophthalmologist for the loss of her eyesight due to glaucoma. The defendant won both the initial trial and the appeal, but when the case reached the Washington State Supreme Court, the decision was reversed. During the early trials, expert witnesses stated that because the patient was under the age of 40 and the incidence of glaucoma in this group was barely one in 25,000, testing individuals under 40 with tonometry was not the standard. The Supreme Court, on the other hand, concluded that the test was inexpensive and safe and that it should have been suggested to the patient.
Types
Negligence
Ordinary negligence
Ordinary negligence is defined as failing to exercise the amount of caution required in a given situation. Whereas, in a similar scenario, every prudent individual would use this amount of caution. Here, the person did not want to cause injury to another person.
Comparative negligence
In a comparative negligence lawsuit, the plaintiff is partially responsible for the harm done to himself. The plaintiff may or may not be given damages for the harm done, depending on the facts of the case.
Contributory negligence
Contributory negligence, unlike comparative negligence, does not allow for compensation if the plaintiff was slightly responsible for the injury, damage, or harm caused. Even if the plaintiff’s role was just 1%, they will not be eligible for compensation under contributory negligence.
Vicarious negligence
Vicarious responsibility is a type of negligence under which an individual or an organisation can be held accountable for damages even if they are not directly responsible. In certain circumstances, the defendant is accountable for the actions of another person and liable for their negligent conduct. An example of vicarious responsibility is when a dog owner is held liable for the damage done by their pet.
Gross negligence
The gravest sort of negligence is gross negligence, which involves behaviour that no rational person would ever conduct. Personal injury claims involving gross negligence are particularly prevalent in circumstances involving extremely aggressive behaviour. When a person’s acts demonstrate a full disregard for the safety of others, or if their actions are deliberate, they may be guilty of gross negligence.
Civil negligence
Civil negligence is a breach of a duty to care. Anyone found guilty of civil negligence is presumed to have behaved contrary to what a reasonable person would have done in identical circumstances. For there to be a claim, the negligent act must result in an injury or loss.
Criminal negligence
Criminal negligence arises when one person endangers another by failing to exercise a reasonable level of care. Law enforcement agencies issue criminal negligence claims, and for someone to be criminally negligent, they must be aware that their behaviour poses an unreasonable risk to another, representing a shockingly poor divergence from an adequate level of care.
Malpractice
Medical malpractice
Misdiagnosis
One of the most prevalent forms of medical claims in malpractice lawsuits is misdiagnosis. When a patient’s health deteriorates as a result of obtaining the incorrect treatment for their condition, a misdiagnosis can become medical malpractice. A misdiagnosis is when a medical professional incorrectly diagnoses a patient’s condition. A patient may suffer injury as a result of unnecessary treatment for a condition he does not possess.
Misdiagnosis is not always considered malpractice. A misdiagnosis will only be considered malpractice if the doctor failed to treat the patient with the same level of skill and competence that another doctor would have under similar circumstances, resulting in the patient’s injuries and ensuing losses.
In Johnston vs. St. Francis Medical Center, a 79-year-old man complained of stomach pain and was examined by radiography and lab tests, but his examination was not conclusive. He was evaluated by two doctors, who discovered that he was just slightly distressed. Additional tests, including computed tomography and ultrasound, were requested, but the patient was moved to the ICU after becoming hypotensive. An aortic aneurysm was suspected by the ICU doctor, and it was discovered during a laparotomy. In the operating room, the patient passed away. The plaintiffs contended that the doctors ought to have discovered the aneurysm sooner. Except for one professional doctor, everyone else said that this was a challenging diagnosis. The verdict was delivered in favour of the defendant. The court further stated that, though the aneurysm was visible on radiographs and in the lab after the diagnosis, there was no compromise in the quality of care.
Delayed diagnosis
In cases of delayed diagnosis, the patient must demonstrate that the doctor could have done more to assess and diagnose the patient’s illness. In addition, the patient must demonstrate that they sought medical assistance as soon as the symptoms began. One must establish a doctor-patient relationship and show that the doctor was negligent in providing the required level of medical care in order to establish medical malpractice for a delayed diagnosis. This negligence led to a delay in diagnosis and subsequent injury to the patient.
For example, a doctor who dismisses a patient’s complaint and fails to send them to a specialist or otherwise fails to give care that would result in adequate treatment within a reasonable time frame may be deemed to have committed medical malpractice.
Prescription drugs
Prescription errors can have life-threatening repercussions for patients. As a result, prescription medication malpractice claims are widespread, and compensation may be awarded. In addition to prescribing the incorrect prescription, drug-related malpractice lawsuits may encompass giving the incorrect dosage of a medication or neglecting to be aware of potential drug interactions. Furthermore, lawsuits may be made against pharmaceutical corporations that produced defective medication or failed to advise customers of all of its hazards.
Negligent failure to treat
In certain circumstances, a correctly diagnosed patient will not receive appropriate treatment, which can be termed as negligent failure to treat. This sort of circumstance can arise when a doctor has too many patients to treat and prioritises money over the safety of the patient. It may include a patient’s early discharge from the hospital, or the doctor may neglect to refer the patient to a specialist or to propose required follow-up care.
Surgical malpractice
If a surgeon injures a patient further while conducting an operation, he may be held responsible and can be sued for malpractice. Surgical errors have an adverse impact on the patient’s quality of life and can result in permanent injuries. Signing a consent document prior to surgery does not exclude a patient or surviving family members from filing a malpractice claim. Many different sorts of surgical errors may constitute medical malpractice, including the following:
- Wrong-site surgery;
- Wrong-patient surgery;
- Wrong surgical procedure performed;
- Using the incorrect surgical technique;
- Causing nerve, tissue, or organ damage;
- Performing unnecessary surgery;
- Using tools that have not been sterilized;
- Leaving objects inside the patient;
- Anesthesia administered in excess or insufficiently;
- Failure to offer appropriate follow-up care.
Birth injuries
If the tools used to deliver a baby are used inappropriately, medical personnel may be held liable for birth injury malpractice. Furthermore, negligence may exist if medical practitioners give treatments that are harmful to the health of the baby and mother or if they fail to plan ahead of time for the likelihood of a C-section birth. Birth injuries can kill both the mother and the infant in some cases. Birth injuries can result from any of the following malpractices:
- Provision of inadequate prenatal care;
- Failure to detect major complications;
- Using assistive equipment incorrectly and resulting in cerebral palsy or brachial plexus injuries;
- Performing an unnecessary C-section delivery;
- In an emergency, failing to perform a C-section delivery;
- Failure to monitor both the baby and the mother throughout labor;
- Anesthesia administered in excess or insufficiently.
Defective medical devices
When a medical device fails, the patient might sustain serious harm or death. Poorly constructed medical equipment may cause organ failure in some individuals.
For example, if a pacemaker is discovered to be faulty, but a doctor in a position to know the device was bad chose to implant it nevertheless, the doctor is very probably accountable, not the manufacturer.
Legal malpractice
A legal malpractice claim alleges that a legal professional fails to perform their obligations with the degree of knowledge required of the profession. This generally includes failing to adequately represent a client in court. A legal professional may be guilty of malpractice if they fail to properly present the facts of a case, overbill their client, or have conflicts of interest pertaining to the case. Many different sorts of errors may constitute legal malpractice, including the following:
Failure to know the law
The most prevalent malpractice claim is failure to know or implement the law. It is a must for a client to expect his attorney to be well-versed in his field of practice. Furthermore, knowing the law and how to apply it in multiple situations is critical to the success of any case. When a solicitor operates in numerous areas of the law, this form of malpractice is more likely to occur. This makes knowing and understanding the nuances of the law in each subject more challenging.
Failure to meet deadlines
Failure to fulfill critical deadlines, such as a delay in submitting documentation to the court, can have serious consequences for a client. At various phases of the legal procedure, there may be deadlines for filing specific papers. Missing any of these might damage the client’s case. This can happen when numerous advocates from the same firm work on the same case. Due to significant turnover in the business or a tremendous workload, more than one lawyer may be managing distinct areas of the case. Missing important deadlines is more probable when there is not a single professional consistently tracking a case.
Planning errors
When an advocate fails to appropriately prepare for every possibility, it might result in planning errors. These mistakes might range from failing to develop a competitive strategy in a civil case to failing to maintain and subsequently provide copies of essential documents in response to petitions to dismiss the lawsuit. This is more likely to occur for advocates who have not digitised all forms and papers and have an ineffective technique for document retrieval.
Inadequate discovery
A lawyer is obligated to discover all necessary facts about a case. It might take time to investigate all essential facts, identify witnesses, and seek necessary information to effectively handle a case. Inadequate discovery occurs when a lawyer fails to discover all necessary facts about a case. For instance, if a lawyer fails to unearth all of a spouse’s financial assets during a divorce or if the lawyer recommends the client to accept a settlement without first thoroughly investigating all of the spouse’s assets, he or she may be held accountable for misconduct.
Failure to calendar
Failure to calendar refers to missing a deadline for bringing a lawsuit in certain situations. A lawyer would be held accountable for legal malpractice if they are engaged to pursue a personal injury claim and the statute of limitations expires before they file the required documentation.
Professional or White collar malpractice
Finance malpractice can take the form of stock brokers making deceptive claims or cases of insider trading. Financial and accounting professionals may be held accountable for malpractice which is termed “professional or white-collar malpractice”. Accounting mistakes may also result in a malpractice suit. An accountant may be held accountable if they fail to properly charge an individual or purposefully overbill them.
Landmark judgments
Lakshmi Rajan vs. Malar Hospitals Ltd. & Another
Facts
In this case, the plaintiff had a tumor in her left breast and had voluntarily gone to the hospital to have it surgically removed with her consent. The surgeon removed both her uterus and the tumor in her left breast, even though the latter had nothing to do with the former. The plaintiff claimed that because the defendant took action without the complainant’s consent, the act of the surgeon had a direct impact on the plaintiff that caused her medical discomfort; causation was proven. Here, the issue was raised both for volenti non-fit injuria and medical negligence.
Judgment
The Court ruled that the defendants could not raise the defence of volenti non-fit injuria since the plaintiff never consented to the removal of her uterus and only came to the hospital for the removal of the tumor discovered in her left breast. Nonetheless, the surgeon removed her uterus, which is an instance of medical malpractice, and the defendant could not avoid culpability since the mere act of removing the woman’s uterus is enough to show causation. It was held that the hospital was liable for deficiency in service.
Pravat Kumar Mukherjee vs. Ruby General Hospital and Ors
Facts
In this case, a second-year engineering student was riding his motorbike when he was hit by a bus, and a bystander took him to the Ruby General Hospital in Kolkata, which was close to the accident location. He was conscious when he got to the hospital, but he was bleeding from the nose and mouth. According to independent witnesses, at the hospital, the boy showed hospital employees his Mediclaim insurance policy, under which he was covered for 65,000 rupees. The boy assured them that bills would be reimbursed and urged them to begin treatment. Hospital personnel began the treatment. Soon after, though, a clerk asked the bystander to pay 15,000 rupees in order to continue the boy’s treatment. The bystander deposited 2,000 rupees and offered the boy’s motorcycle as collateral for the remainder, but the hospital refused, and treatment was discontinued. Thereafter, the boy was transferred to a government hospital some distance away. On the route to the second hospital, he died. The boy’s parents filed a lawsuit against the hospital for discontinuing the treatment.
Judgment
According to the Court, treatment was “initiated and discontinued” based on the circumstances of the case, and there were “no reasonable grounds” for its discontinuation. The Court noted in its decision that the inability to deposit 15,000 rupees was not a sufficient reason for discontinuing treatment. The Court stated that recognised medical jurisprudence requires treatment until “the last breath.” The Court quoted the Code of Medical Ethics, which codified doctors’ duties, such as practising with expertise and not discontinuing treatment without adequate notice to the patient and his family. Held, the defendants were found guilty of medical malpractice on humanitarian grounds, and the plaintiff was given compensation.
Jasbir Kaur vs. State of Punjab
Facts
In this case, a newly born infant was reported missing from the hospital. The toddler was discovered bleeding near the bathroom’s wash basin. The hospital administration said that the infant was taken away by a cat, which caused him harm.
Judgment
Held, the hospital administration was negligent and failed to take reasonable care and precautions. Further, the Court granted Rs. 1 lakh in compensation.
V. Kishan Rao vs. Nikhil Super Speciality Hospital
Facts
In this case, the complainant’s wife was admitted to the hospital of the respondent while experiencing fever and chills. For four days, she received incorrect typhoid treatment rather than malaria treatment. She passed away as a result of the wrong treatment. An officer in the Malaria Department sued the hospital administration for improperly treating his wife, who was receiving treatment for typhoid illness rather than malaria fever.
Judgment
Held, the res ipsa loquitor principle was followed, and the plaintiff received Rs. 2 lakhs from the defendant as a result of their negligence.
Conclusion
Both negligence and malpractice are civil claims. Negligence and malpractice proceedings seek to compensate the victim for damages incurred rather than hold the defendant accountable. In a negligence lawsuit, the plaintiff’s side just needs to demonstrate that the defendant violated or breached his duty of care to the plaintiff, which resulted in the accident. In contrast, the plaintiff in a malpractice claim must prove that the professional duty of care was broken. This can call for further information or actions, such as calling in a subject-matter expert to discuss the appropriate professional standards of care for the defendant or circumstances.
Everyone who decides to pursue a certain career takes the necessary precautions to ensure that his behaviour in that field is of an acceptable level of care and competence. A certain amount of education is required to be regarded as a professional in a particular field of the profession, which implies that the individual in that field has a sufficient level of care and expertise to prevent carelessness. But even with the greatest care, a medical expert cannot assure a patient of the outcome of an act. Among all the professions that are now in existence in the modern world, medicine is one of the oldest and most well-regarded. A doctor or other medical practitioner owes a duty of care to the patient, and when that obligation is broken and the patient is harmed, that is considered medical negligence. A medical professional has a duty of care to determine whether to accept a case, what therapy to deliver, and how to administer that treatment based on the specifics of the situation. As a result, it may be claimed that medical negligence refers to the careless, incorrect, or inept treatment of a patient by a doctor or other healthcare professional who has a duty of care to the patient.
Frequently Asked Questions (FAQs)
Distinguish Medical negligence from Medical malpractice
The violation of a medical service provider’s duty of care is known as medical malpractice. Whereas, Medical negligence occurs when a practitioner of medical services treats a patient incorrectly and causes the patient injury. Medical malpractice will not entail malicious intent.
Where and against whom can a lawsuit of medical negligence or malpractice be filed?
A lawsuit for medical negligence or malpractice can be filed against the professional doctor or hospital in the Consumer Court.
Is medical negligence a criminal offence?
All cases of medical negligence are not offenses of criminal negligence. Criminal liability can be imposed upon a medical practitioner under particular situations wherein no doctor in his ordinary senses would have done such an act that leads to harm to a patient.
When can compensation for medical malpractice be claimed?
Compensation for medical malpractice can be claimed in the event that a patient suffers a disability or dies due to medical malpractice.
What are common defenses against claims of negligence?
- Assumption of risk;
- Release of liability waiver was signed;
- Pre-existing injuries.
References
- https://www.diffen.com/difference/Malpractice_vs_Negligence
- https://www.sweeneymerrigan.com/blog/difference-between-negligence-and-malpractice/
- https://www.differencebetween.info/difference-between-malpractice-and-negligence
- https://blawg401.com/whats-the-difference-between-medical-malpractice-and-negligence/
- https://www.studocu.com/row/document/moi-university/nursing/difference-between-negligence-and-malpractice/13419039
- https://www.dlgteam.com/blog/medical-malpractice/what-are-the-4-elements-of-malpractice/
- https://paulandperkins.com/types-of-malpractice/
- https://thefactfactor.com/tag/v-kishan-rao-vs-nikhil-super-speciality-hospital/
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