A doctor leaves a swab in abdomen during surgery. Under which doctrine will a suit be filed against him?
Ans:C. Res ispa loquitor Ref: The Essentials of Forensic Medicine and Toxicology by KS Narayan Reddy. 29th edition. 2010. Pg:33 Explanation: Criminal negligence: When a doctor shows gross absence of skill and care during treatment resulting in death of patient Medical Negligence is considered to be criminal negligence if: When a doctor shows gross absence of skill or care during treatment resulting in serious injury to or death of a patient When a doctor performs an illegal act When an assaulted person dies, the defence may attribute the death to the negligence or undue interference in the treatment of the deceased by the doctor. Section 304-A IPC deals with Criminal Negligence "Whosoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shll be punished with imprisonment up to 2 years or with fine or with both". (See Table 14) Table 14: Difference between Civil and Criminal Negligence Trait Civil Negligence Criminal Negligence Offence No specific or clear violation of law needs to be proved Must have specifically violated a particular criminal law in question Negligence Simple absence of care & skill Gross negligence, inattention or lack of competency Conduct of Physician It is compared to a generally accepted simple standard of professional conduct Not compared to a single test Consent for act Good defence; cannot recover damages Not a defence; can be prosecuted Trial by Civil Court Criminal Court Evidence Strong evidence is sufficient Guilt should be proved beyond doubt Punishment Liable to pay damages imprisonment Resispa loquitor - 'the thing or fact speaks for itself In this situation, the patient need not prove negligence of the physician because it is obvious. The rule is applied when: that in the absence of negligence the injury would not have occured ordinarily. the doctor had exclusive control over the injury producing instrument or treatment. patient was not guilty of contributory negligence * These enables the lawyer to prove the case without medical evidence. Vicarious liability (Liability for act of another) An employer is responsible not only for his own negligence. but also for the negligence of his employees, by the principle "respondeat superior" (Let the master answer). In practice, the principal doctor becomes responsible for any negligence of his assistant.
Criminal negligence
Civil negligence
Res ispa loquitor
Vicarious liability