Negligence In Tort Law

MEDICAL NEGLIGENCE

Introduction

What is negligence?

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm .

According to Jay M. Feinman of the Rutgers University School of Law;

The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeable cause to other people."

"Those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision."

The three ingredients of negligence are as follows:

1. The defendant owes a duty of care to the plaintiff

2. The defendant has breached this duty of care.

3. The plaintiff has suffered an injury due to his breach.

And in case of medical negligence mostly the doctor is the defendant. Negligence is predominantly a theory of liability concerning allegations of medical malpractice, making this type of litigation part of the Tort Law.

Civil liability and medical negligence

Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.

Persons who offer medical advice and treatment implicitly state and undertake to have the skill and knowledge to do as under:

• To undertake particular job.

• To decide whether to take a case or not ,

• To decide the treatment suitable for particular case

• To administer that treatment.

This is known as an “implied undertaking” on the part of a medical professional.

However, no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a

An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error .

Doctors must exercise an ordinary degree of skill. However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not totally cured.

Certain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the person’s duty; and this must have caused harm to the injured person. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion.

Criminal Liability and medical