Chapter - 1: 1 Dr.n.v.Paranjape, Criminology and Penology, 11th Edition, 2001
Chapter - 1: 1 Dr.n.v.Paranjape, Criminology and Penology, 11th Edition, 2001
CHAPTER -1
INTRODUCTION
Law and Medical professions are considered highly noble and well
render to the suffering humanity. The sanctity of the oath taken by the
professionals and the Code of Ethics they had imposed on themselves are
status. The doctors may not break the letter of the law but, by violating its
spirit, they commit crimes which are not only anti social but also
injurious to public health. The crimes of this nature are called WHITE
criminologists on certain
professional who violates the law and is convicted in connection with his
to upper socio- economic class who violates the criminal law while
financial loss, mental suffering, body damages, death are more to the
accountability.
life, the professions could not remain unaffected. The enormous stride in
new knowledge and better understanding of health care. The few changes
and its application to medical practice. Keeping the body functioning with
respiration, the Pace maker, intravenous feeding, renal dialysis etc., now
medical research and health care technology have inevitably put the
of the patient alone in the position of the ever changing laws in this
regard. These are the difficult and complex questions, which do not have
easy answers either in law or in morality. The extent to which law should
laid down by the Ethics. The Medical Council of India and other
Consumer Protection Act, 1986. The Consumer Protection Act was passed
or for their relatives for the negligence of the doctors. The procedure can
be initiated without any cost or without any court fee. The principle of
care provider in which the treatment provided falls below the required
most cases involving medical error. Ever since the formation of human
history, the inherent sickness in one form or the other and mortality of
modem risk of economic compensation for the harm occurred. One of the
which a person practicing that profession can give in his service. It is not
at all accepted that each and every professional man would deliver the
profession and is the result of some irregular conduct on the part of the
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the facts of each case. However, in general, it may be stated that the test is
profession has reached new horizons, facing many ethical and legal
changing swiftly and adversely. In earlier days, the patient has full faith in
best medical treatment available at any comer of the globe and in case the
man need not possess the highest expert skill at the risk of being found
Counsel for the plaintiff put in this way, that in the case of a medical man,
i.e. 84 people became blind in the operated eye. Central Government laid
damage had been done to the eyes of some of the patients who were
operated upon at an eye camp due to the negligence of the Medical staff
the victims. The matter was brought before Supreme Court in the form of
in the case of Laxman B. Joshi vs. T.B. Godbole8 where the case is(a)
BharatLawPublicationsSyn.3-2 page31
shock — Held negligent- Liable for damages. The judge said that “The
duties which a doctor owes to his patient are clear. A person who holds
that he has possessed the skill and knowledge for the purpose. Such a
-person when consulted by a patient owes him certain duties9 viz., a duty
that treatment. A breach of any of those duties gives a right to the patient
for the negligence of the doctor. The medical practitioner must bring to his
side effects without informing the patient the risk of the side effects and
to the risk of suffering from those side effects of the drugs. Lord Wright
prudent man would not do12. It includes both the sins of commission and
negligence from other torts. The presence of intention converts the act
result by his own act of violation. One cannot said to have intended a
result which is wholly beyond the control of his will. Incompetency and
ability and skill suitable to the task either with respect to natural qualities
Negligence is not malice. Malice arises for some purpose which is absent
Fraud imports design and purpose. Negligence imports that one is acting
13 DrJagdishSingh&VishwaBhushanMedicalNegligenceCompensation,
ThirdEdition2007 BharatLawPublicationsChap.3,page30
14 www.businessdictionary.com
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Wilful Negligence
This is the act which is done deliberately and intentionally and not by
the person who acts or omits to act knows what he is doing and when he
is reckless in the sense of not caring whether his act or omission of act is
Mala fides
believed in good faith which is done or believed without due care and
there is honest blunder; but for the second, honesty is immaterial and
presence of care is the only criteria. Mala tides implies much more than
of good faith. It imports the notion of design and purpose. In this sense,
Gross Negligence15
They are not synonymous. Both are high degrees of negligence; but the
former involves the idea of recklessness while the latter does not. For
The two are not synonymous. Negligence has a much broader meaning in
law. Every careless act is not a negligent act. In cases of negligence, the
positive duty. In negligence, the party does an act which he is ignoring his
insufficient grounds concludes that those consequences will not follow his
action. In negligence the party not at all adverts to the consequences of his
only does not intend the consequences but does not even advert to them,
i.e., the possibility or probability of their happening does not occur to his
deemed to have been foreseen, though not wilful action. The wrong doer
of the risk.. The negligent person does not intentionally cause the harm;
chapter of accidents or in the act of some third person to save him from
the consequences.
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Actionable negligence
of breach of that duty. All the 3 ingredients must be present and proved
before an action for negligence. It can become actionable only when all
the 3 elements are present and proved. No man can be punished for mere
In the first instance lack of care involving breach of duty and this must
both in common law and statutory law, i.e., for breach of duty imposed by
common law and statutory law. A negligent act has been defined as failure
to exercise the degree of care required by law, care consistent with the
the case of anesthesia after a warning which would impel one of the
addition the doctor is answerable for the wrongful and negligent acts of
observe without objection. The patient looks to surgeon for relief of his
degree of skill and knowledge and also exercise reasonable degree of care
consideration, is liable under the Consumer Protection Act, 1986, for his
medical practitioners. In the case of Dr. Sr. Louie Sr. Smt. Kannabil
treatment on the part of the doctor before Consumer Forum, the test is
care.As the field of medicine is also growing fast with all other fields of
neighbor-hood and good homes, well educated with some idealism and
2. To get awareness about the laws which are providing remedies for civil
cases under Law of Torts and criminal cases under Criminal Procedure
Code.
Regulations,2005.
Negligence
HYPOTHESIS
the damage will occur to the patient. This statement contains the
complainant.
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medico legal terms so that the medical practitioners should have the
awareness of it
METHODOLOGY
2. The case laws decided by the Supreme Court and High Courts
precedents.
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and internet sources on the medical negligence for the present study.
Courts , Law Journals, Medical Reporters for the major portion of the
and the techniques to find out. The problem posed by the gap between
and the reports of Appellate Courts and conventional legal theory and
Forum.
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7 chapters of study.
Need for the present study, Objectives of the study, Hypothesis and the
against Negligence.
REGULATIONS, 2005
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for Doctors, Common Errors by Doctors and Hospitals, Dos for Patients
Guntur.