Error in Judgment and Medical
Negligence:
In this judgment, reliance was placed on the decision of the House of Lords in Whitehouse vs. Jordan & Anr., (1981) [10]. Lord Fraser, while reversing the judgment of Lord Denning (sitting in the Court of Appeal), observed as under: "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence."
In this judgment, reliance was placed on the decision of the House of Lords in Whitehouse vs. Jordan & Anr., (1981) [10]. Lord Fraser, while reversing the judgment of Lord Denning (sitting in the Court of Appeal), observed as under: "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence."
Duties of Doctors:
In two decisions rendered by the
Supreme Court of India, namely, Dr. Laxman
Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole
& Anr., 1969 [7] and A.S. Mittal vs. State of U.P.,
1989 [13], it was laid down that when a Doctor is
consulted by a patient, the former, namely, the
Doctor owes to his patient certain duties which
are (a) a duty of care in deciding whether to
undertake the case; (b) a duty of care in
deciding what treatment to give; and (c) a duty
of care in the administration of that treatment.
Supreme Court of India, namely, Dr. Laxman
Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole
& Anr., 1969 [7] and A.S. Mittal vs. State of U.P.,
1989 [13], it was laid down that when a Doctor is
consulted by a patient, the former, namely, the
Doctor owes to his patient certain duties which
are (a) a duty of care in deciding whether to
undertake the case; (b) a duty of care in
deciding what treatment to give; and (c) a duty
of care in the administration of that treatment.
Outcome of Consumer Court Cases
in terms of proof of „Deficiency in
Service‟
and/or adoption of „unfair
trade practices‟:
It was revealed from outcome of
consumer court cases in terms of whether
negligence proved or not that out of 48 cases
deficiency in service/unfair trade practice proved
only in 15 (31.25%) cases while in 33 (68.75%)
cases complainant were not able to prove the
allegations of medical negligence against
doctors/hospitals. (Table 3)
Reasons for this could be lack of
awareness and knowledge among all stake
holders (patients/lawyers) and complexity of
cases of medical negligence, lack of Second
Opinion/Expert Opinion on the issue of
allegations of medical negligence or Second
Opinion/Expert Opinion not supported the
No comments:
Post a Comment