Essay Example on General Concept of Medical Negligence

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CHAPTER TWO General Concept of Medical Negligence 2 1 Definition of Negligence Defining negligence is a hard ask and very difficult to do due to its dynamic and volatile nature based on different circumstances however the concept has been accepted in jurisprudence The authoritative text on the subject is the Law of Torts by Ratanlal and Dhirajlal Negligence has been discussed as follows Negligence is the breach of a duty or responsibility caused by omitting doing something which any reasonable man would do being guided by those concerns which ordinarily regulate the conduct or behaviour of human affairs or doing something which a sensible and rational man would not do Actionable negligence consists in the neglect of the practice of normal care or skill towards a person to whom the defendant seeks and deserves the duty of observing normal care and skill through which neglect the plaintiff has suffered from damage to his person or property The definition involves three components of negligence 1 A legal duty to serve due care by the party complained of towards the party complaining against the former s conduct or behaviour within the scope of the duty or action performed 2 Breach of the said duty and 3


The consequent damage Reason of action for negligence comes about only when the damage takes place for damage is an essential component of this tort Thus there are components of negligence duty breach and resulting damage 1 Austin defines negligence thus In case of negligence a party performs not an act to which he is obliged he breaks a positive duty 2 Actionable negligence involves in the neglect of the practice of normal care or skill towards a person to whom the defendant seeks and deserves the duty of observing normal care and skill through which neglect the plaintiff has suffered from damage to his person or property 3 Salmond considered negligence as condition of mind which was a component of liability for torts in general for an alternative to intention However it is established that negligence can be considered a specific tort if the following conditions are met and they must be established and maintained by the plaintiff i That the defendant in question was under a duty to take care of the plaintiff to circumvent the damage complained of ii That there occurred a breach of that duty by the defendant and iii That the plaintiff has suffered an actual loss or damage and that the breach was the direct as well as proximate reason of the damage complained of 



Thus if a person walks across a crowd of some people carrying in his hand a sharp edged tool it is his duty to ensure that he does not cause any injury to those walking around him He will have to be more cautious and watchful than a man who is merely carrying an umbrella even though carrying an umbrella is nearly as bad as carrying a knife in crowded cities today And the man carrying umbrella would have to be more cautious and watchful than a man who is carrying nothing at all 2 2 Essentials of a Suit for Negligence The burden of proving that negligence took place is on the part of the plaintiff as with any other suits who alleges it To be successful in an action for negligence the plaintiff has to prove the following five things 1 That the defendant in question was under a legal duty to perform the due care and skill as there cannot be any kind of liability for negligence unless and until there is a breach of some or any legal duty 2 That the duty was towards the plaintiff 3 That in the circumstances of the case the defendant failed to accomplish that duty i e the duty to perform and provide due care and skill 4 That the breach of such kind of duty was the causa causans i e the direct and also the proximate cause of the injury or damage complained of If the causal connection between the negligent act and the damage or injury is not direct the damage is too distant or not connected for which there is no remedying at law 5 That the damage or the injury was caused on account of this breach of duty The Bombay High Court has pointed out that in an action because of the negligence against any doctor the plaintiff has to prove at least three things viz i


That the doctor who has been complained against was under a duty to take reasonable care towards the plaintiff to avoid the damage or injury complained of or not to cause damage to the patient by failing to use the reasonable care warranted from the doctor ii That there was a breach of such duty on the part of the doctor and iii That this kind of breach of duty was the actual and real cause of the damage or injury complained of and such damage could be foreseen if reasonably tried 2 3 Definition of Medical Negligence Medical negligence is a type of professional negligence and as such forms, a part of the law of tort Medical negligence or clinical negligence which is a more common term used today is concerned with the claims for damages or for injuries suffered by patients and or others at the hands of doctors and other health care professionals




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