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    Medical Service (CPAM) Torts

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    Tanmay Bagga
    1) Doctors owe a duty of care to patients and can be found negligent for breaching that duty through deficiencies like negligence, violating consent requirements, or breaching confidentiality. 2) To prove medical negligence, a plaintiff must show that the doctor's actions or lack thereof caused harm and failed to meet the standard of care that would be provided by a reasonably competent doctor in that situation. 3) Certain incidents, like leaving surgical tools in a patient's body, are considered evidence of negligence without needing to prove the standard of care due to the "res ipsa loquitur" doctrine which holds that such incidents do not generally occur without negligence.

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    Medical Service (CPAM) Torts

    Uploaded by

    Tanmay Bagga
    48 views5 pages
    1) Doctors owe a duty of care to patients and can be found negligent for breaching that duty through deficiencies like negligence, violating consent requirements, or breaching confidentiality. 2) To prove medical negligence, a plaintiff must show that the doctor's actions or lack thereof caused harm and failed to meet the standard of care that would be provided by a reasonably competent doctor in that situation. 3) Certain incidents, like leaving surgical tools in a patient's body, are considered evidence of negligence without needing to prove the standard of care due to the "res ipsa loquitur" doctrine which holds that such incidents do not generally occur without negligence.

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    Medical service (CPAM) Torts

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    1) Doctors owe a duty of care to patients and can be found negligent for breaching that duty through deficiencies like negligence, violating consent requirements, or breaching confidentiality. 2) To prove medical negligence, a plaintiff must show that the doctor's actions or lack thereof caused harm and failed to meet the standard of care that would be provided by a reasonably competent doctor in that situation. 3) Certain incidents, like leaving surgical tools in a patient's body, are considered evidence of negligence without needing to prove the standard of care due to the "res ipsa loquitur" doctrine which holds that such incidents do not generally occur without negligence.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    48 views5 pages

    Medical Service (CPAM) Torts

    Uploaded by

    Tanmay Bagga
    1) Doctors owe a duty of care to patients and can be found negligent for breaching that duty through deficiencies like negligence, violating consent requirements, or breaching confidentiality. 2) To prove medical negligence, a plaintiff must show that the doctor's actions or lack thereof caused harm and failed to meet the standard of care that would be provided by a reasonably competent doctor in that situation. 3) Certain incidents, like leaving surgical tools in a patient's body, are considered evidence of negligence without needing to prove the standard of care due to the "res ipsa loquitur" doctrine which holds that such incidents do not generally occur without negligence.

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    © All Rights Reserved
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    of 5

    INTRO-

    Doctor owes certain duties to the patient who consults him for illness. A
    deficiency in this duty results in - negligence, vitiated consent,
    and breach of confidentiality

    The patient-centered initiative of rights protection is required to be appreciated in the
    economic context of the rapid decline of State spending and massive private investment
    in the sphere of the health care system The patient-centered initiative of rights
    protection is required to be appreciated in the economic context of the rapid decline of
    State spending and massive private investment in the sphere of the health care system
    The patient-centered initiative of rights protection is required to be appreciated in the
    economic context of the rapid decline of State spending and massive private investment
    in the sphere of the health care systemThe patient-centered initiative of rights
    protection is required to be appreciated in the economic context of the rapid decline of
    State spending and massive private investment in the sphere of the health care system

    Torts- Civil wrong
    ---unfairly causes someone else to suffer loss or harm resulting in legal liability
    ---The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail, -----------
    ---The plaintiff in the lawsuit must show that the actions or lack of action was
    the legally recognizable cause of the harm.

    Who can file a complaint?
    A consumer or any recognized consumer association, i.e.,
    voluntary consumer association registered under the Companies Act, 1956 or any other
    law

    Who is a consumer?
    A consumer is a person who hires or avails of any services for a consideration and
    includes any beneficiary of such services other than the person hires or avails of the
    services for consideration
    What is a complaint?
    A complaint is an allegation in writing made by a Complainant,
    What is deficiency of service?
    Deficiency of service means any fault, imperfection, shortcoming, or inadequacy in the
    quality, nature, or manner of performance that is required to be maintained by or under
    any law for the time being in force or has been undertaken to be performed by a person
    in pursuance of a contract or otherwise in relation to any service.
    Where is a complaint filed?
    District-<20 lakh
    State-<1crore
    National- >1 crore
    Supreme court ( appeal, within 30 days)

    What are the powers of the consumer redressal forums?
    The forums have a variety of powers. They are 1) the summoning and enforcing of the
    attendance of any defendant or witness and examining the witness under oath, 2) the
    discovery and production of any document or other material object producible as
    evidence, 3) the reception of evidence on affidavits, 4) the summoning of any expert
    evidence or testimony, 5) the requisitioning of the report of the concerned analysis or
    test from the appropriate laboratory or from any other relevant source, 6) issuing of any
    commission for the examination of any witness, and 7) any other matter which may be
    prescribed.
    MEDICAL NEGLIGENCE - DEFINITIONAL ASPECTS
    Negligence is simply the failure to exercise due care. The three ingredients of negligence
    are as follows:
    1. The defendant owes a duty of care to the plaintiff.
    2. The defendant has breached this duty of care.
    3. The plaintiff has suffered an injury due to this breach.

    When does a duty arise?
    It is well known that a doctor owes a duty of care to his patient. This duty can either be a
    contractual duty or a duty arising out of tort law.

    What is the duty owed?
    The duty owed by a doctor towards his patient, in the words of the Supreme Court is to
    bring to his task a reasonable degree of skill and
    knowledge and to exercise a reasonable degree
    of care (Laxman vs. Trimback).
    - Doesnt mean save every patient.

    Reasonable degree of care
    Reasonable degree of care and skill means that the degree of care and competence that
    an ordinary competent member of the profession who professes
    to have those skills would exercise in the circumstance in question.
    ---The degree of care is a variable and depends on the
    circumstance. It is used to refer to what actually amounts to reasonableness in a
    given situation.
    ---Generalist and a specialist,
    ---Hence, we can conclude that a doctor has to constantly update his
    knowledge to meet the standard expected of him.


    When does the liability arise?
    In order to show the breach of duty, the burden on the plaintiff would be to first
    show what is considered as reasonable under those circumstances and then
    that the conduct of the doctor was below this degree.

    Normally, the liability arises only when the plaintiff is able to discharge the burden on
    him of proving negligence. However, in some cases like a swab left over the abdomen of
    a patient or the leg amputated instead of being put in a cast to treat the fracture, the
    principle of res ipsa loquitur (meaning thereby the thing speaks for itself)
    might come into play. The following are the necessary conditions of this principle.
    1. Complete control rests with the doctor.
    2. It is the general experience of mankind that the accident in question does not happen
    without negligence. This principle is often misunderstood as a rule of evidence, which it is not. It
    is a principle in the law of torts. When this principle is applied, the burden is on the
    doctor/defendant to explain how the incident could have occurred without negligence. In the
    absence of any such explanation, liability of the doctor arises.

    CONCLUSION
    The Hon'ble Mr. Justice Markendeya Katju has done yeoman service for society by
    rendering this judgment. On one hand, it sets at rest the speculative nature of our
    judicial adjudication of medical negligence liability and on the other, it abundantly
    clarifies that unless there is prima facie evidence indicating medical negligence, notice
    either to a doctor or hospital cannot be issued. At the same time, the core essence of the
    judgment makes it very clear that there cannot be an assumption that doctors cannot be
    negligent while rendering care and treatment. I think this timely intervention should be
    disseminated at a popular level so that the mandated Supreme Court's prescription will
    be observed more in practice than in breach.

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