In civil negligence, onus of proof lies on
Patient [Ref- Reddy's Forensic 29/e p30; Parikh 6/e p1.441 "Generally speaking, it is for the patient in an action for negligence to establish the guilt of the doctor, whose innocence is otherwise assumed."- Parikh However, in cases where the rule of res ipso loguitur is applied, the patient need not prove negligence. Res ipso loquitur means that "the thing or fact speaks for itself." The patient has to merely state what according to him was the act of negligence. The 3 essential conditions considered necessary for res ipsa loquitur are: The nature of injury suggests by common knowledge or expe evidence that without negligence it does not occur. The patient must not contribute to his own injury The doctor had exclusive control over the injury producing instrument or treatment. Professional negligence Professional negligence is defined as absence of reasonable care and skill, or wilful negligence of a medical practioner in the treatment of a patient, which causes bodily injury or death of the patient. The word negligence is defined as the omission to do something (act of omission) which a reasonable person would do, or doing something (act of commission) which a reasonable person would not do. To prove an act of negligence the onus lies on the patient (or his relative if the patient has died). Following conditions must be proved by the patient (4Ds): Duty- the doctor (defendant) owed him a duty of care. Dereliction- the doctor failed to perfonn that duty. Damage- the patient suffered actual damage due to negligence of the doctor. iv. Direct causation- the doctor's negligence directly led to the damage without any other intervening cause. Professional negligence can be of 2 types: Civil negligence and Criminal negligence. Civil negligence Civil negligence arises - when a patient (or his relative, in case of patient's death) files suit in a civil cou to get compensation from his doctor for the injury or death of the patient due to doctor's negligence. - a doctor files civil suit to get fees from his patient, who refuses to pay alleging negligence. Criminal negligence Criminal negligence arises when the degree of negligence is so grave that it goes beyond matters of comensation. Case is filed in a criminal cou. Criminal negligence occurs when the doctor shows gross lack of competence, or gross inaction, gross recklessness, gross negligence in selection and application of remedies. It involves extreme depaure from the ordinary standard of care. Criminal negligence cases are very rare. Note that- A doctor will not be criminally liable if a patient dies due to an error of judgement or carelessness or want of due caution, though lie can be liable to pay compensation. Examples of criminal negligence? - Amputation of wrong limb or digit or of the wrong patient. - Leaving instruments, tubes, sponges or swabs within the body. - Gross mismanagement under the influence of alcohol or drugs - Performing criminal aboion - Administration of a wrong substance into the eye causing loss of vision. - Giving wrong or infected blood. - Gangrene after too tight plastering. Note that? Even if a doctor is negligent, a patient is not entitled for any compensation if no damage has occurred. An error in diagnosis or treatment is not negligence provided proper care and skill has been exercised. Contributory negligence is not a defence in criminal negligence. (Contributory negligence is any negligence on the pa of the patient or his attendant, which along with the doctor's negligence, contributed to the injury) Criminal negligence cases are dealt under I.P.C. section 304A.
Judicial first degree magistrate
Police not below the level of sub inspector
Doctor
Patient