Abstract
It is a principle recognized by our as well as by other legal systems that ignorance of the law is no excuse for violating it. The rule is also expressed in the form of a legal presumption that everyone knows the law. It is the duty of every man to know that part of it which concerns him. A doctor, in particular, is conclusively presumed to know the law, and is dealt with as if he did know it, because in general he can and ought to know it. In the matter of professional liability, the medical profession differs from other occupations for the reason that the former operates in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond a medical man's control. Due to the increasing awareness of the rights of a patient in present day society, a medical man has become more vulnerable to being sued by a litigation suit of any kind, civil or criminal. The basis of a medical negligence suit is still alien to the majority of the practicing doctors in our country. Hence, the present article aims at discussing the various aspects of negligence, like the meaning and types of negligence, and the concept of duty of care, degree of care, and standard of care, as considered by the law.
Highlights
The courts have consistently recognized the hazards associated with the medical practice
In a judgment relating to medical malpractice, the Supreme Court of India reverberated its feeling holding that “The medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care
Where you get a situation which involves the use of special skill or competence, the test is the standard of the ordinary skill a man exercising and professing to have that special skill
Summary
The courts have consistently recognized the hazards associated with the medical practice. Keeping in view of the above, in a remarkable judgment, the Supreme Court of India held that a doctor will be held liable for criminal prosecution only for “gross negligence” or if he did not possess the required skill, which he ought to possess in the medical profession.[3] Writing the judgments, the CJI said “The negligence attributed to the doctor must be gross in nature to make him liable for criminal prosecution. Negligence is culpable (punishable) carelessness conduct which involves an unreasonably great risk of causing harm to another It is the absence of such care as it was the duty of the defendant to use. Medical negligence is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. The law presumes that a doctor should be careful enough to avoid the unforeseen dangers because of his specialized training
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