When a doctor attends to his patient, he owes him certain duties of care like; 1. Later on she complained of pain and therefore subsequent operation was performed and the abdominal pack left behind was removed. What are the most common torts? Common torts include:assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress . 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. It was held that patients aggrieved by any deficiency in the treatment, from both private clinics and Govt. of Delhi did not grant compensation to the claimant who conceived child even after tubectomy operation but failed to prove negligence on the part of hospital or doctor concerned. The type of unintentional tort described in the case. The Senior Specialist Doctor, Dr. P. Roy was not available in the hospital. A duty of care in the administrating that treatment properly. 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. Gurgaon for sterilisation which was done under the State sponsored family planning programme. Common torts include: assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress. She was advised surgery and therefore she came to India for removal of her uterus. In the case of a medical man, negligence means failure to act in accordance with the standard of reasonably competent medical man at that time. English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. Therefore, negligence can be broadly seen in two perspectives. 2. Conversion – the act of someone taking another person’s property and converting it to his own use. The three main types of torts are negligence, strict liability (product liability), and intentional torts. 9 per month was only regarding administrative charges and not for treatment. It means careless or unreasonable conduct. The Supreme Court held the doctor guilty of negligence. 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. This may, however, be a negligent act. B . The Consumer Protection Act, 1986 # 1932 AC 562 # Winfield on Tort. Soon after the transfusion of this blood she lost her eyesight and later died. The classic intentional tort in medical practice is forcing unwanted medical care on a patient. 9 per month towards the Central Government Health Scheme. She got operated in Apollo Hospital, Madras but due to the negligence of the doctor abdominal pack has been left in the abdomen. Competent parties, a … Intentional torts are committed when the perpetrator has a clear purpose of causing harm. For example, in most states, when a contractor uses dynamite  which causes debris to be thrown onto the land of another and damages the landowner’s house, the landowner may recover damages from the contractor even if the contractor was not negligent and did not intend to cause any harm. Section 3 of the Consumer Protection Act, 1986 provides that the provision of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Someone is negligent if they unintentionally cause … So the view taken was that right to live does have the other side which is right not to live. Click here The doctor “must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. The type of unintentional tort described in the case. He was admitted to the emergency ward of the G.B. This is what all, the person approaching the professional can expect. In all the other kinds of mercy killing, physician-assisted euthanasia, voluntary euthanasia, active euthanasia is illegal. The classic intentional tort in medical practice is … 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. Medical negligence calls for a comparative high degree of care which is expected from a doctor of a reasonable degree. The controversy whether the medical services should or should not be covered by the expression ‘service’ as defined in section 2(1)(o) has been set at rest by the Supreme Court in the case of Indian Medical Association v. V.P.Shantha, by holding that s. 14 (1)(d) indicates that the compensation to be awarded is for the loss or injury suffered by the consumer due to the negligence of the opposite party. in Eckersley v. Binnie, summarised the Bolam test in the following words: From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. 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. The complainant alleged negligence in the performance of operation. Bingham L.J. The court held that the plaintiff could not prove that the death of her son was due to negligence of the doctor and therefore, the defendants were not liable. Intentional torts are the most serious. If he fails to prove so he will be liable for the tort of negligence. Kamla Sharma, was operated for removal of gallstone in SMS Hospital, Jaipur. Thus, the provisions of the Consumer protection Act give the consumer an additional remedy besides those that may be available under other existing laws. Appendix 1. This means that when harm is caused, it is no defense that none was intended or that due care had been exercised to prevent the harm. The defendant. While ordinarily fault is the basis of tort liability, there are cases in which absolute liability is imposed on the actor. 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. Conclusion Medical negligence cannot be a considered to be simply a plain category of tort. Intentional Torts in Healthcare (graded) Select one of the intentional torts discussed in your text and provide an example of how this tort takes place in healthcare. A duty of care in deciding what treatment to give. 8lakhs to the plaintiff. This case treats negligence as a type of conduct and not a particular state of mind. It was further observed that the medical officer’s service was not a persona service so as to constitute an exception to the application of the Consumer protection Act. Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff was living with her husband in Saudi Arabia. Other examples of absolute liability situations would be harm caused by storage of flammable gas and explosives, crop dusting when the chemical that is used is dangerous, factories which produce dangerous fumes, smoke or soot in populated areas, and the production of nuclear material. 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. Convenient, Affordable Legal Help - Because We Care. A duty of care in the administrating that treatment properly. A two judge bench of Supreme Court in P. Rathinam Nagbhusan Patnaik v. Union of India held that a person has a right not to live a forced life and attempt to suicide is not illegal. Doctors are responsible not for every act by which a patient suffers but for those acts in which the doctor has acted negligently. This can involve violence with the intent to injure, but also includes acts which although not intended to injure, still interfere with a person’s autonomy and the right to security and dignity. Assault Battery Invasion of privacy false imprisonment intentional infliction of emotional distress fraud. The complaint was dismissed as the medical services in the Government Hospital were free of charge to everybody. Not only this, many doctors give medicines which are too strong for the patients. Acme Construction Company was constructing a highway. That the defendant committed the breach of the said duty. 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. This state of mind varies from person to person and the person is liable only for his intentional acts only and not otherwise. A breach of any of these duties gives a right of action for negligence to the patient. The Supreme Court also held that the principle of res ipsa loquitor may apply in certain cases. In spite of their precautions, some flying fragments of rock damaged a neighboring house. In Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, the facts were that the son of the respondent, aged 20 years, met with an accident on a sea beach, which resulted in the fracture of his left leg. They include intentional torts, negligence and strict liability. All tortious charges of intentional interference with person/property involve intent, which provides for a civil wrong, knowingly committed by the offender. An unintentional tort is one that is negligent, as opposed to intentional torts , which are torts … Hospitals, are entitled to seek damages under the Consumer Protection Act. Negligence has been recognised as independent tort by the House of Lords in the case of Donoghue v. Stevenson in 1932. Negligence can result in a physical injury, property damage and other type of loss. The nursing staff was negligent and not the doctor. He then put his leg in the plaster. JavaScript seems to be disabled in your browser. But the initial onus of proof lies upon the plaintiff. The three main types of torts are negligence, strict liability (product liability), and intentional torts. The ‘objective theory’ gives an independent identity to the concept of ‘negligence’ in the law of tort. Physician-assisted suicide is a crime under section 306 IPC (abetment of suicide). 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. Articles Already Published in other websites. Under the English Law as laid down in Bolam v. Friern Hospital Management Committee, a doctor, who acts in accordance with a practice accepted as proper by a responsible body of medical men, is not negligent merely because there is a body of opinion that takes a contrary view. In C. Sivakumar v. Dr. John Arthur, the plaintiff had the problem of blockage of urine, and the doctor in an attempt to perform the operation for curing the problem, totally cut-off his penis. This type of tort case takes place when an individual intentionally engages in actions that effectively cause injury or damage to another person. A tort is a non-criminal (civil) wrong that involves an injury – physical, mental, or monetary – that is caused either through purposeful or negligent conduct. The owner of the house sued the corporation for the damages. You must have JavaScript enabled in your browser to utilize the functionality of this website. The Law of Torts – Dr. R.K.Bangia Legislations: 1. In State of Punjab v. Shiv Ram, despite sterilisation operation, the woman became pregnant. In effect the judges take notice of the common experience of mankind. 2. It is his duty to prove negligence on the part of the doctor. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet. v. Dr. R.L. The test here also in determining liability would be whether the doctor acted in accordance with the practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of the treatment. Was this defense valid? For Further Details Contact: Indian Penal Code 2. 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. Judged by this standard, a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in the given case, the skill which he did possess. Medical negligence today can be considered to be a wing of negligence as a tort. During operation, abdominal pack was left in the abdomen. There he was administered several medicines, and intravenous chloroquine injection by an unqualified nurse and without prior test. It was also held that in this case that the doctor should as a matter of practice seek the guidance of the court by applying for declaratory relief before withdrawing life support system from an insensate patient. The Court held that the doctor was negligent per se as he obviously failed in his duty to take care and therefore both the doctor and the State were held liable to pay damages to the plaintiff. There are basically three types of torts: An intentional tort is a civil wrong that occurs when the wrongdoer engages in intentional conduct that results in damages to another. A study from Deloitte Health Solutions describes the U.S. health system as the “Wild West” that is comprised of four types of unique consumers, each of which possesses unique characteristics and propensities to engage with healthcare technology. 5. 3. Here Ms. Akli would have been infected with the dreaded disease if the marriage had taken place and consummated. It is essential to open the doors for the new ways of treatment and for securing the rights of the patients. That the plaintiff suffered consequential damage due to the breach of duty. In Dr. Tokugha v. Apollo Hospital Enterprises Ltd.,the plaintiff’s marriage was proposed to be held on 12-12-95 with Ms. Akli, was called off because of the disclosure by Apollo Hospital to Ms. Akli that the plaintiff was HIV ( ). 3. A service rendered free of charge to everybody would not be service as defined in the Act. A doctor should be made responsible for the various compositions of medicines which he prescribes. It was held that it was not the case of res ipsa loquitor. Careless conduct that results in damage to another is negligence. She developed pregnancy after the operation and gave birth to a female child. In the cases of specialists, more degree of care is required. Although, Lord Mc Millan in Donoghue v. Stevenson stated that categories of negligence are never closed. The types of torts? Similarly in the case of Additional Director, C.G.H.S. 10. Intentional torts are acts committed with the intent to harm another, or to deliberately interfere with an individuals rights to bodily safety, emotional tranquility, privacy, control over property, freedom from deception, and freedom from confinement. Subjective Theory- According to this theory of Salmond, negligence denotes ‘State of mind’. M.L.Singhal v. Dr. Pradeep Mathur, is another case where the plaintiff’s wife suffered from anaemia and had problem in urinating, was admitted in Sir Ganga Ram Hosital, Delhi, under the treatment of Dr. Mathur. 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. Such conduct when followed can cause harm to another gives rise to liability for negligence. In Jasbir Kaur v. State of Punjab, a newly born child was found missing in the night from the bed in S.G.T.B.Hospital, Amritsar. 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. It is important to note that the Supreme Court held that the parents of the child were consumers having hired the services, and the child was a consumer as the beneficiary of such services. A medical professional does not assure his patient of the result. But this view was overruled by a Constitutional Bench of the Supreme Court in Gian Kaur v. State. 3. The judgment of the Madras High Court was set aside by the Supreme Court. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. The Law of Torts (24th edition) Reprint 2005 –Ratanlal and Dhirajlal 2. The maxim is not a principle of liability but a rule of evidence. The plaintiff claimed damages from the defendant on the ground that they violated the rule of secrecy under medical ethics. Striking another person in a fight is an intentional act that would be the tort of battery. It means that a thing speaks for itself, i.e., the facts and circumstances which the plaintiff has proved established a prima facie case of negligence against the defendant. She developed some gynaecological problem. Similarly in Aparna Dutta v. 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