Here Ms. Akli would have been infected with the dreaded disease if the marriage had taken place and consummated. B . Medical negligence changes its form, from a simple tort whereby a person is given a wrong treatment and may vomit due to that to a dangerous life harming tort whereby the patient loses his life due to a simple injury of fracture. Understanding Unintentional Tort The most common type of unintentional tort is negligence. 2. It is not always necessary that all the circumstances be under the defendant’s control. 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. Intentional torts are the most serious. The Law of Torts (24th edition) Reprint 2005 –Ratanlal and Dhirajlal 2. The ‘objective theory’ gives an independent identity to the concept of ‘negligence’ in the law of tort. Leaving foreign matter in the body during operation was held to be a case of res ipsa loquitor. In a significant ruling in Vasantha P. Nair v. Smt. Negligence -conduct falls below standard of care i.e. These principles were laid down by the House of Lords in F. v. Berkshire Health Authority. The same was removed by a second operation. withholding of antibiotics where without giving it, a patient is likely to die, or removing the heart-lung machine, from a patient in comma. The anaesthetist was also negligent in so far as he failed to administer respiratory resuscitation by oxygenating the patient with a bag or a mask. The three main types of torts are negligence, strict liability (product liability), and intentional torts. The standard is that of the reasonable average. 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. In the case of Achutrao a towel was left inside a woman’s peritoneal cavity while she was operated for sterilisation in a Government hospital causing peritonitis which resulted in her death. 1, 25,000 as compensation for the death of the deceased. So the view taken was that right to live does have the other side which is right not to live. 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. Similar principle is applied regarding judging the legality of withdrawal of treatment of an insensate patient who has no chance of recovery. It involves a personal element. That the consequences were undesirable. The hospital’s doctor while treating the lumps removed her uterus without justification. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. Trespassing – the act of using or occupying another person’s real property without permission. Common torts include: assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress. Provide two examples each of intentional and unintentional torts in a healthcare setting. A further categorisation of euthanasia as given in paragraph 40 of Aruna case is between voluntary euthanasia and non-voluntary euthanasia. History. The Senior Specialist Doctor, Dr. P. Roy was not available in the hospital. With the growing number of cases of medical negligence, it has acquired itself attention of the lawmakers. (adsbygoogle = window.adsbygoogle || []).push({}); Need a Personal Loan? Since many of these acts also may be charged as crimes, you may notice some similarities. 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. Claimant was made aware by the hospital abut chances of pregnancy even after operation. A duty of care in deciding what treatment to give. They are deliberate acts intended to injure others, or to interfere with another person’s rights. Striking a person accidentally would not be an intentional tort since there was not intent to strike the person. In State of Punjab v. Shiv Ram, despite sterilisation operation, the woman became pregnant. Common torts include:assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress . 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. It may be pointed out that negligence may mean a mental element in tortuous liability or it may mean an independent tort. The plaintiff claimed against the doctor on the basis of negligence. Due to burn injuries she could not be clothed. The defendant was vicariously liable for the negligence of the hospital staff. The doctor “must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff was living with her husband in Saudi Arabia. Most intentional torts are also crimes. When a person commits a tort, they violate civil law. 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. They are: 1. Careless conduct that results in damage to another is negligence. The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India of State Medical Councils would not exclude the service rendered by them from the ambit of Consumer Protection Act. The Bombay High Court in the case of Philips India Ltd. v. Kunju Punnu,where the plaintiff’s son died observed that “standard of care which the law requires is not an insurance against accidental slips”. Kamla Sharma, was operated for removal of gallstone in SMS Hospital, Jaipur. It was held that there is no statutory provision in India as to legal procedure for withdrawing life support to a person who is incompetent to take decision in this connection. In effect the judges take notice of the common experience of mankind. 5. Therefore, it gives rise to the duty of a doctor to abstain from doing any such act himself or to assist any patient in doing so otherwise it will rise to criminal liability against the doctor. Gurgaon for sterilisation which was done under the State sponsored family planning programme. The plaintiff claimed damages from the defendant on the ground that they violated the rule of secrecy under medical ethics. 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. Thus, the doctor was liable for the death of the child. Hence the following law is laid down in this connection which will continue to be in force until Parliament makes a law on the subject: 1. It was necessary to blast rock with dynamite. Hence, even if a decision is taken by the near relatives or doctors, or next friend to withdraw life support, such a decision requires approval from the High Court concerned. Also a distinction is sometimes drawn between euthanasia and physician-assisted death, the difference being in who administers the lethal medication. Medical negligence today can be considered to be a wing of negligence as a tort. 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. But when a patient is incapable, for one reason for another, of giving his consent, a doctor can lawfully operate upon or give other treatment provided that the operation or the other treatment concerned is in the best interests of the patient if it is carried out in order to either save his life or to ensure improvement or prevent deterioration in his physical or mental health. In cases of this kind the patient cannot be said to have committed suicide nor can the doctor be said to have aided or abetted him in doing so. 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. 10,000 to the plaintiff on account of mental torture to him because of bad nursing. 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. His abilities are supposed to match the abilities of a doctor who is professing the same service to a reasonable degree. She should have been kept in the warmest place available and probably for this reason on the first night she was shifted children medical ward. Passive Euthanasia entails withholding of medical treatment for continuance of life. However, the decision should be taken bonafide in the best interest of the patient. He requires a particular level of learning to be a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. It was held that patients aggrieved by any deficiency in the treatment, from both private clinics and Govt. A service rendered free of charge to everybody would not be service as defined in the Act. The law of torts in Australia derives from the legal system of the UK. The purpose of tort law is to ensure that wrongdoers pay for the damage that they cause instead of the victims. In these circumstances this hardship can be avoided by the application of the maxim ‘res ipsa loquitor’. The owner of the house sued the corporation for the damages. Withdrawal of life system in such cases does not amount to any criminal act for the doctor’s acts in the best interests of the patient, and the death of the patient is regarded as having been exclusively caused by the injury or the disease by which he was suffering. An intentional tort case is just that: intentional. It was held: 1. Later on she complained of pain and therefore subsequent operation was performed and the abdominal pack left behind was removed. An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damages to another. Part 2 Research and summarize a case that involves an unintentional tort in a healthcare setting in United States and identify the following information: The plaintiff. Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff got herself operated for the removal of her uterus in the defendant hospital. Every person who enters into a particular profession undertakes to bring to the exercise of it a reasonable degree of care and skill. 31.07.2015. That the thing causing the damage be under the control of the defendant or his servant - The first requirement is that the happening of the accident must be evidence of negligence on the part of the defendant or of someone for whose negligence he is responsible. This may, however, be a negligent act. The court also held that the payment of Rs. 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. The appeal was dismissed. JavaScript seems to be disabled in your browser. If he fails to prove so he will be liable for the tort of negligence. Such conduct when followed can cause harm to another gives rise to liability for negligence. In State of Haryana v. Santra, the facts were that Santra was having seven children and therefore approached the C.M.O. Conversion – the act of someone taking another person’s property and converting it to his own use. A breach of duty is committed by a doctor when he does not perform the standard and degree of care like reasonable doctor of his time or as a member of his class. Basically there are two theories about the negligence in the law of tort. Although, Lord Mc Millan in Donoghue v. Stevenson stated that categories of negligence are never closed. The type of unintentional tort described in the case. A mere right to control, as opposed to actual control, is sufficient. 1, 79 # (1985) 1 ALL ER 365 (HL) # AIR 2002 GUAWATI 102 # POONAM VERMAV. # ‘Contract for Service’ implies a contract whereby one party undertakes to render services. Every type of intentional tort can arise in the healthcare setting. 4. A duty of care in the administrating that treatment properly. He was admitted to the emergency ward of the G.B. True. In the case of Harjot Ahluwalia v. Spring Meadows Hospital, the facts were that Harjot Ahluwalia, the complainant, a minor and the only child of his parents, had high fever and was taken to Spring Meadows Hospital, New Delhi. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. You must have JavaScript enabled in your browser to utilize the functionality of this website. Table of Legislation; Show more. The classic intentional tort in medical practice is forcing unwanted medical care on a patient. It describes two types of torts: intentional and negligent (unintentional), the latter being the most common basis for liability of healthcare professionals and hospitals. Prior consent or approval of the court for giving the treatment is not necessary. When a doctor attends to his patient, he owes him certain duties of care like; 1. Intentional Torts • any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. The requirement is that mere happening of the accident should tell its own story and raise the inference of negligence on the part of the defendant. According to Winfield, “Negligence as a tort is the breach of the legal duty to take care which result in damage, undesired by the defendant, to the plaintiff.” This definition involves three constituents of negligence: 1. In Gian Kaur v. Vinod Kumar Sharma, though the victim was admitted to the surgical ward she was shifted to the children medical ward. The defendants were, therefore, held liable. USLegal has the lenders!--Apply Now--. To permit euthanasia is a matter of policy within the domain of the literature. This type of tort case takes place when an individual intentionally engages in actions that effectively cause injury or damage to another person. Which of the following describes elements of all valid contracts. 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. The court presumed that the hospital authorities were negligent and awarded compensation amounting to Rs 1lakh. The Delhi High Court in Madhubala v. Government of N.C.T. 2. 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. 2. The classic intentional tort in medical practice is … It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. The harm need not be intended, but the act must be intentional, not merely careless or reckless. The Supreme Court held the doctor guilty of negligence. Such a person when consulted by a patient owes him certain duties: 1. 12.5 lakhs to the minor child and Rs. 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. The plaintiff became permanently impotent. Further the claimant failed to report about irregular menstrual cycle to the hospital which was asked for. Appendix 1. Hospital, Agartala. Passive euthanasia should be permitted in India in certain situations. # JACOB MATHEW V. STATE OF PUNJAB, AIR 2005 SC 3180 # POONAM VERMA V. ASHWIN PATEL, AIR 1996 SC 2111 # (1865) 3 HIC 596 # AIR 1996 SC 2377 # AIR 2000 MADRAS 340 # (1957) 2 ALL ER 118 # (1988) 18 Con. Careless conduct that results in damage to another is negligence. Acme Construction Company was constructing a highway. He was repeatedly called to attend to the patient. Click here Intentional torts commonly include such issues as assault and/or battery, false imprisonment, invasion of privacy, theft, property damage, fraud or other deception, and trespassing. 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. She was advised surgery and therefore she came to India for removal of her uterus. 9 per month towards the Central Government Health Scheme. Active Euthanasia which entails the use of lethal substances or forces to kill a person e.g. Professor Lindsay Wiley from American University Washington College of Law opens up Torts with a brief overview of the three main types of torts. Subjective Theory- According to this theory of Salmond, negligence denotes ‘State of mind’. It can also be taken by the doctors attending the patient. It is his duty to prove negligence on the part of the doctor. The doctor has discretion in choosing the treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. Bothe the doctor and the State were held liable for negligence. 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. He used excessive force in this treatment, using three of his attendants for pulling the injured leg of the patient. The doctor took umbrage to the fact that the child has been kept in his ward without his permission and forced her to leave the ward. Negligence has been recognised as independent tort by the House of Lords in the case of Donoghue v. Stevenson in 1932. It is the duty of a doctor to attend a patient admitted in the emergency ward of a hospital and if the doctor does not care to attend and the patient suffers or dies, the doctor would be liable to pay compensation. Is a civil wrong that occurs when the wrongdoer engages in actions that result in fight. Plaintiff claimed damages from the liabilities taking the excuse that he be a wing of negligence as arises... 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