a 'Tortuous Act', opines Diljeet Titus, Founder, law firm Titus & Co, New Delhi.
The laws governing medical negligence are, by far and large, a section of Law of Tort, in addition to Indian Contract Act. "Tort is a civil wrong, as opposed to a criminal wrong where a defendant breaches a duty to the plaintiff (complainant). Negligence may be defined as the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition involves three constituents of negligence: a legal duty to exercise the due care; breach of the said duty; consequential damage," explains Sajid Mohamed, Partner, PDS & Associates, Mumbai. He adds that to be successful, the plaintiff must establish that the defendant (sonologist) owed a duty of certain care towards the patient, this duty was breached, and this breach resulted in the immediate proximate damage to the patient directly or indirectly. At times one feels that the plaintiff has a difficult task to prove this, but in reality it is a doctor's own lack of proper documentation and non-observance of standard operating procedures (SOPs), which makes it easier for the plaintiff to establish negligence on the part of the doctor. Duty of care is established as soon as the patient walks into
a doctor's clinic and
submits him/herself to examination. A doctor-patient relationship thereby comes in to existence.
The Supreme Court in Laxman v. Trimbak, held, The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor very low degree of care and competence judged in the light