Wednesday, 28 June 2017

Negligence vs wilful negligence

Negligence vs wilful negligence Medical negligence is lack of reasonable degree of care & skill or wilful negligence on the part of a medical practitioner while treating a patient resulting in bodily injury, ill-health or death (damage) such as failure to remove swabs/instruments during surgery; failure to give ATS in case of injury causing tetanus; breaking the needle during injections; mismatched blood transfusion; amputation of wrong finger; operation on wrong limb or removal of wrong organ; loss of use of hand by prolonged splinting; prescribing an overdose or poisonous medicine producing ill-effect. A simple medical negligence is failure to exercise reasonable degree of care and skill that an ordinary competent person would normally be expected to exercise under the circumstances. “The three essential components of negligence are: Duty, breach and resulting damage. • The existence of a duty to take care, which is owed by the defendant to the complainant; • The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and • Damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant.” ‘Gross negligence’ does not mean the absence of ordinary care; gross negligence is negligence of very high degree or reckless disregard for the safety of the patient. There is another term ‘wilful negligence’, which means that the act that was deliberately done with the knowledge that the action would cause harm to the patient. Mere recklessness, even when extreme, is usually gross negligence rather than wilful misconduct. In any situation of negligence, a doctor can be sued in civil/criminal courts and consumer forum. A simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. A Consumer Court usually decides on deficiency of service and liability for compensation, while the Criminal courts decide on any violation of the Indian Penal Code (IPC). A civil liability arises only when there is damage. A patient cannot sue the doctor if no damage has occurred, however the doctor might be negligent. But, in criminal negligence, mens rea or criminal intent must be shown. The degree of negligence is also much higher; it is gross or negligence of a very high degree. Under section 304 of the Indian Penal Code (IPC), it is first important to establish criminal intent (mens rea) or that the doctor had the ‘knowledge’ that the treatment could harm but did not take the necessary informed consent. 304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” “The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.”(Jacob Mathew vs State of Punjab & Anr) “To err is human” Simple medical negligence is considered a professional hazard and is covered under indemnity insurance, but coverage does not include gross or reckless negligence. Dr KK Aggarwal National President IMA & HCFI Recipient of Padma Shri, Dr BC Roy National Award, Vishwa Hindi Samman, National Science Communication Award & FICCI Health Care Personality of the Year Award Vice President Confederation of Medical Associations of Asia and Oceania (CMAAO) Past Honorary Secretary General IMA Past Senior National Vice President IMA President Heart Care Foundation of India Gold Medallist Nagpur University Limca Book of Record Holder in CPR 10 Honorary Professor of Bioethics SRM Medical College Hospital & Research Centre Sr. Consultant Medicine & Cardiology, Dean Board of Medical Education, Moolchand Editor in Chief IJCP Group of Publications & eMedinewS Member Ethics Committee Medical Council of India (2013-14) Chairman Ethics Committee Delhi Medical Council (2009-15) Elected Member Delhi Medical Council (2004-2009) Chairman IMSA Delhi Chapter (March 10- March 13) Director IMA AKN Sinha Institute (08-09) Finance Secretary IMA (07-08) Chairman IMAAMS (06-07) President Delhi Medical Association (05-06)

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