It is noteworthy that the complainants in the above two cases, could not get any relief under the provisions of the Consumer Protection Act, 1986, but in such kinds of cases the relief was available in the law of tort if they would have filed suits for damages for the tort of negligence in the civil court. Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff was living with her husband in Saudi Arabia. The Kerala High Court held that the doctor was negligent in not performing the operation in emergency, and therefore, the defendant was liable for the death of the patient. The doctor was not only negligent but also he was callous in his approach when he forced the parents to shift the child from the children ward to veranda outside in the cold rainy weather. The complainant alleged negligence in the performance of operation. 1, 79 # (1985) 1 ALL ER 365 (HL) # AIR 2002 GUAWATI 102 # POONAM VERMAV. Doctors are responsible not for every act by which a patient suffers but for those acts in which the doctor has acted negligently. In Bolam’s case, Mc Nair, J., in his summing up of jury observed: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. Striking another person in a fight is an intentional act that would be the tort of battery. The maxim res ipsa loquitor was applied and the doctor and the hospital were held liable. He was repeatedly called to attend to the patient. All tortious charges of intentional interference with person/property involve intent, which provides for a civil wrong, knowingly committed by the offender. 9 per month towards the Central Government Health Scheme. This should be taken care of. A breach of any of these duties gives a right of action for negligence to the patient. The fact that doctors do play a major role in bringing happiness to many lives cannot be denied A balance is required to be made between the rights of the patients and the rights of the doctors. The National Commission held that services under CGHS were rendered free of charges to everybody and under the contract for services; such services are excluded from section 2 (1)(o) and the complainant was not a consumer within the meaning of 2 (1)(d). In effect the judges take notice of the common experience of mankind. Subjective Theory- According to this theory of Salmond, negligence denotes ‘State of mind’. After that another bottle of blood was obtained from the blood bank. Common torts include:assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress . (Note: In legalese, tort is just another word for a legal wrong committed by one person against another.) Recently in the case of Aruna Ramachndra Shambaug v. Union of India and others, before Markande Katju and Gyan Sudha Mishra, JJ. The appeal was dismissed. In R.P.Sharma v. State of Rajasthan, the petitioner’s wife, Smt. A further categorisation of euthanasia as given in paragraph 40 of Aruna case is between voluntary euthanasia and non-voluntary euthanasia. 5. It can also be taken by the doctors attending the patient. There are patients who have suffered due to negligence but have not made a complaint either due to their own unawareness or due to long proceedings etc. Assault Battery Invasion of privacy false imprisonment intentional infliction of emotional distress fraud. The defendants were, therefore, held liable. 2. # AIR 1998 SC 1801 # II (1997) CPJ 394 # AIR 1996 SC 550 # AIR 1975 BOM 306 # AIR 2005 SC 3280 # AIR 1987 KER 42, Submit your Article by using our online form Medical negligence today can be considered to be a wing of negligence as a tort. Voluntary euthanasia is where the consent is taken from the patient, whereas, non-voluntary euthanasia is where the consent is unavailable i.e. Check your knowledge of tort law using this interactive, printable worksheet. A medical professional does not assure his patient of the result. 10. Negligence can result in a physical injury, property damage and other type of loss. Since many of these acts also may be charged as crimes, you may notice some similarities. So the view taken was that right to live does have the other side which is right not to live. What are the most common torts? Battery – the illegal act of harmful or offensive contact with another person’s body. A duty of care in the administrating that treatment properly. The plaintiff contended replacement of the child while the hospital authorities contended that the child was taken away by a cat which caused the damage to him. The patient exercises his right of declining the treatment and the doctor complies with the patient’s wishes which he is under a duty to do. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty. In Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, the facts were that the son of the respondent, aged 20 years, met with an accident on a sea beach, which resulted in the fracture of his left leg. # AIR 1996 SC 550 # Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or have been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. No. Negligence has been recognised as independent tort by the House of Lords in the case of Donoghue v. Stevenson in 1932. Further the claimant failed to report about irregular menstrual cycle to the hospital which was asked for. In a suit for damages against a doctor the onus of proof is upon the plaintiff to prove that the doctor was negligent and that his negligence caused the injury of which the plaintiff complained. In all the other kinds of mercy killing, physician-assisted euthanasia, voluntary euthanasia, active euthanasia is illegal. For example, in most states, when a contractor uses dynamite  which causes debris to be thrown onto the land of another and damages the landowner’s house, the landowner may recover damages from the contractor even if the contractor was not negligent and did not intend to cause any harm. Intentional Interference with a Person. a lethal injection given to a person with terminal cancer who is in a terrible agony. Such a person when consulted by a patient owes him certain duties: 1. The court presumed that the hospital authorities were negligent and awarded compensation amounting to Rs 1lakh. In Paramjit Kaur v. State of Punjab, the complainant was operated in Government Hospital freeof charge of family planning, but later on, she gave birth to a female child. Therefore, basically these 4 elements are to be checked in a tort of negligence. With the growing number of cases of medical negligence, it has acquired itself attention of the lawmakers. Due to burn injuries she could not be clothed. Similar principle is applied regarding judging the legality of withdrawal of treatment of an insensate patient who has no chance of recovery. The hospitals and doctors cannot claim it to be a free service if the expenses have been borne by an insurance company under the medical care or by one’s employer under the service condition. One bottle of the same blood was transfused. The classic intentional tort in medical practice is … 3. It is thus now clear that a doctor would be liable for abetting suicide under S. 306 IPC, if he by taking positive steps, e.g., administration of drugs, although with the consent of the patient, ends the patient’s life. Gurgaon for sterilisation which was done under the State sponsored family planning programme. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The tort of negligence is therefore, complex and fluid because in determining the liability in negligence, issues like duty, care, causation, remoteness of damage are to be analysed in any given case. A person when goes to a doctor expects a certain degree of care and caution from him which is implicit in the services provided by him. Provide two examples each of intentional and unintentional torts in a healthcare setting. The types of torts? In Dr. Tokugha v. Apollo Hospital Enterprises Ltd.,the plaintiff’s marriage was proposed to be held on 12-12-95 with Ms. Akli, was called off because of the disclosure by Apollo Hospital to Ms. Akli that the plaintiff was HIV ( ). It was diagnosed as a case of acute appendicitis which required immediate operation to save the life of the patient. editor@legalserviceindia.com. 3. Which of the following describes elements of all valid contracts. Acme Construction Company was constructing a highway. 8lakhs to the plaintiff. Intentional torts are intentional actions that result in harm to the plaintiff. But if the events leading up o the accident were under the control of others besides the defendant then the happening of the accident is insufficient evidence against the defendant. Convenient, Affordable Legal Help - Because We Care. You must have JavaScript enabled in your browser to utilize the functionality of this website. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable of negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. It was also held that in this case that the doctor should as a matter of practice seek the guidance of the court by applying for declaratory relief before withdrawing life support system from an insensate patient. The child was found profusely bleeding and with one eye totally gauged near the wash basin of the bathroom. Joint Director of Health Services, Shivagangal v. Sonal, was another case where the wife of the plaintiff underwent a family planning operation and was discharged the same day. They are: 1. In order to reduce the fracture, the doctor did not give an anaesthetic to the patient but contended himself with a single dose of morphia injection. Passive Euthanasia entails withholding of medical treatment for continuance of life. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. The maxim res ipsa loquitor acts as a rescuer for the complainant by easing their burden of proving the negligence of the doctor of the hospital authorities in the cases of gross negligence which is manifest in the very act of the doctor itself. In the cases of specialists, more degree of care is required. A doctor should be given the freedom to treat his patients liberally and not in fear and to find out better ways to treat the patients. The first scenario described above encompasses negligent torts, while the second captures intentional torts. The three main types of torts are negligence, strict liability (product liability), and intentional torts. Examples of torts include negligence, assault, false imprisonment, or medical malpractice. The doctor’s plea that the patient has not consented to the operation was also rejected on the ground that the burden of proof was on the doctor that the patient had refused to undergo the operation. It means that a thing speaks for itself, i.e., the facts and circumstances which the plaintiff has proved established a prima facie case of negligence against the defendant. The defendant was vicariously liable for the negligence of the hospital staff. This was very well explained in Airedale NHS Trust v. Bland, and it was held that the doctor in such cases is under no absolute obligation to prolong the patient’s life regardless of the circumstances or the quality of his life. She developed some gynaecological problem. Here Ms. Akli would have been infected with the dreaded disease if the marriage had taken place and consummated. The type of unintentional tort described in the case. Hospital, Agartala. There are basically three types of torts: An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damages to another. The doctor “must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. A duty of care in the administrating that treatment properly. Physician-assisted suicide is a crime under section 306 IPC (abetment of suicide). However, the decision should be taken bonafide in the best interest of the patient. Here, the doctor failed to prove the same. Services rendered to the patient by a medical practitioner except where doctor renders service free of charge to every patient or under a contract of personal service by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall under the ambit of ‘service’ as defined in section 2(1)(o) of the Consumer Protection Act. The court also held that the payment of Rs. Thus, there was additional economic burden on the poor person. Intentional torts are a wrongful act that someone plans, carries out, and is fully aware of their actions. Torts may be classified as unintentional or intentional. But when a doctor has in his care a patient who is incapable of deciding whether or not to consent to treatment, then what is the duty of a responsible doctor. Negligence is by far the most common type of tort. Intentional torts are acts committed with the intent to harm another, or to deliberately interfere with an individuals rights to bodily safety, emotional tranquility, privacy, control over property, freedom from deception, and freedom from confinement. Every type of intentional tort can arise in the healthcare setting. Although the burden of proof is not required to be proved by the complainant in the cases of gross negligence by virtue of the maxim res ipsa loquitor where it is manifest on the face of it that the doctor has acted negligently. They are deliberate acts intended to injure others, or to interfere with another person’s rights. In Lakshmi Rajan v. Malar Hospital Ltd., the complainant, a married woman, noticed development of painful lumps in her breast. Medical opinion may differ with regard to the course of manner which is acceptable to the medical profession and the court finds that he has attended on the patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. The court held that the compensation can be awarded only if the failure of the operation is attributable to the negligence of the doctor and for the failure due to natural causes. The same was removed by a second operation. If responsible and competent medical opinion is of the view that it would be in patient’s best interests not to prolong his life because such continuance would be futile and would not confer any benefit on him, medical treatment including artificial feeding and administration of drugs can be lawfully withheld from an insensate patient with no recovery of hope even though it is known that the result of withdrawal of treatment would be that of the patient would dies shortly thereafter. This state of mind varies from person to person and the person is liable only for his intentional acts only and not otherwise. With the growing number of cases in India and the world at large it become a prime concern that should the remedies be still given under a law of tort and Consumer Protection Act, 1986 or if the time has come to enact a legislation to carve out the remedies for the patients who have suffered in serious ways due to the negligence of the doctors or the medical authorities. Recently there has been a major increase in the cases of gross medical negligence which calls for some immediate strict laws to be made in this regard. A doctor cannot escape from the liabilities taking the excuse that he acted to the best of his abilities. Browse US Legal Forms’ largest database of 85k state and industry-specific legal forms. 2. The Law of Torts (5th edition) – S.P.Singh 3. Tort, in common law, civil law, and the vast majority of legal systems that derive from them, any instance of harmful behavior, such as physical attack on one’s person or interference with one’s possessions or with the use and enjoyment of one’s land, economic interests, honor, reputation, and privacy. Thus, the doctor was liable for the death of the child. Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff got herself operated for the removal of her uterus in the defendant hospital. The classic intentional tort in medical practice is forcing unwanted medical care on a patient. There are several different types of torts such as intentional torts which include: false imprisonment, assault, battery or intentional infliction. The care may benefit the patient, but if it was refused and the physician has no state mandate to force care on the patient, the patient may sue for the intentional tort of battery. It was held to be a case of deficiency in service for which the opposite party was directed to pay Rs. In State of Haryana v. Santra, the facts were that Santra was having seven children and therefore approached the C.M.O. A two judge bench of Supreme Court in P. Rathinam Nagbhusan Patnaik v. Union of India held that a person has a right not to live a forced life and attempt to suicide is not illegal. Articles Already Published in other websites. Winfield, while quoting the famous statement of Earl, C.J., in the case of Scott v. London and St. Katherine Docks Co., stated that there are two requirements for applying the maxim of res ipsa loquitor: 1. In India, euthanasia is not prevalent, only passive euthanasia is allowed subject to certain conditions given by Supreme Court in the above cases. The tort of negligence is therefore, complex and fluid because in determining the liability in negligence, issues like duty, care, causation, remoteness of damage are to be analysed in any given case. Negligence implies absence of intention to cause the harm complained of. He was admitted to the emergency ward of the G.B. This is called strict liability or absolute liability. Claimant was made aware by the hospital abut chances of pregnancy even after operation. The corporation raised the defense that the owner was suing for tort damages and that such damages could not be imposed because the corporation had been free from fault. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.” The Supreme Court in Achutrao Khodwa v. State of Maharashtra laid down the law as follows: “The skill of medical practitioners differs from doctor to doctor. the patient is in comma or is otherwise unavailable to give consent. She developed pregnancy after the operation and gave birth to a female child. The treatment resulted in shock and caused the death of the patient. M.L.Singhal v. Dr. Pradeep Mathur, is another case where the plaintiff’s wife suffered from anaemia and had problem in urinating, was admitted in Sir Ganga Ram Hosital, Delhi, under the treatment of Dr. Mathur. Competent parties, a … Kamla Sharma, was operated for removal of gallstone in SMS Hospital, Jaipur. 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. Careless conduct that results in damage to another is negligence. Striking a person accidentally would not be an intentional tort since there was not intent to strike the person. The purpose of tort law is to ensure that wrongdoers pay for the damage that they cause instead of the victims. The doctor who performed the operation and the hospital were held liable to pay compensation of Rs. She was advised surgery and therefore she came to India for removal of her uterus. Common torts include: assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. The principle of self-determination, i.e., respect for the wishes of the patient has given rise to the rule that if an adult patient of sound mind and properly informed wants that the life support system be withdrawn, then the doctors responsible for his care must give effect to his wishes. The Law of Torts – Dr. R.K.Bangia Legislations: 1. The test covers the entire field of liability of a doctor namely liability in respect of diagnosis; liability in respect of a doctor’s duty to warn his patients of risks inherent in treatment, liability in respect of operating upon or giving treatment involving physical force to a patient who is unable to give his consent; and liability in respect of treatment. Of relationships merely careless or reckless medical practice is forcing unwanted medical care on a patient him... Uterus without justification HL ) # AIR 2002 GUAWATI 102 # POONAM VERMAV admitted in the treatment never come the. 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