Comprehension
“As a matter of fact, when a patient is admitted to the highly commercial hospital … a thorough check up of the patient is done by the hospital authorities, it is the Institute which selects after the examination of the patient that he suffers from what malady and who is the best doctor who can attend, except when the patient or the family members desire to be treated by a particular doctor or the surgeon as the case may be. Normally, the private hospitals have a panel of doctors in various specialities and it is they who choose who is to be called. It is very difficult for the patient to give any detail that which doctor treated the patient and whether the doctor was negligent or the nursing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition…We cannot place such a heavy burden on the patient or the family members/relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party. It will be a difficult task for the patient or his relatives to undertake this searching enquiry from the hospital and sometimes hospital may not co-operate. It may give such details and sometimes may not give the details...
The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore, the claim should be rejected on the basis of non-joinder of necessary parties
In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact, it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution/ hospital than that of the claimant.”
[Extracted from Smt. Savita Garg v. The Director, National Heart Institute (2004) 8 SCC 56].
The burden cannot be placed on the patient to implead all those treating doctors or the attending staff of the hospital as a party so as to substantiate his claim. Once a patient is admitted in a hospital it is the responsibility of the Hospital to provide the best service and if it is not, then hospital cannot take shelter under the technical ground that the concerned surgeon or the nursing staff, as the case may be, was not impleaded, therefore, the claim should be rejected on the basis of non-joinder of necessary parties
In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact, it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the Institution/ hospital than that of the claimant.”
[Extracted from Smt. Savita Garg v. The Director, National Heart Institute (2004) 8 SCC 56].
Question: 1
Negligence, as a tort, is said to have been committed when the following is/are established:
Negligence, as a tort, is said to have been committed when the following is/are established:
Updated On: Nov 7, 2024
- The existence of a duty to take care, which is owed by the defendant to the complainant; and that there is a failure to attain that standard of care, as prescribed by the law, thereby, committing a breach of such duty
- Damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant
- Both (A) and (B)
- None of the above.
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The Correct Option is C
Solution and Explanation
Negligence requires establishing a duty of care, a breach of that duty, and damages
causally connected to the breach suffered by the complainant.
The correct option is (C): Both (A) and (B)
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Question: 2
Which of the following propositions is incorrect as regards negligence?
Which of the following propositions is incorrect as regards negligence?
Updated On: Nov 7, 2024
- The test for determining medical negligence, as laid down in Bolam’s case [Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582], holds good in its applicability in India.
- The jurisprudential concept of negligence is the same in civil and criminal laws, and what may be negligence in civil law is necessarily a negligence in criminal law
- A professional may be held liable for negligence, and the standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession
- It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices; a highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
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The Correct Option is B
Solution and Explanation
Negligence in civil law does not automatically imply negligence in criminal law, as
the standards and consequences differ.
The correct option is (B): The jurisprudential concept of negligence is the same in civil and criminal laws, and what may be negligence in civil law is necessarily a negligence in criminal law
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Question: 3
Which of the following propositions is incorrect as regards negligence?
Which of the following propositions is incorrect as regards negligence?
Updated On: Nov 7, 2024
- Medical practitioners are immune from a claim for damages on the ground of negligence, as they belong to the medical profession.
- Medical practitioners are immune from a claim for damages on the ground of negligence, as they are governed by the National Medical Commission Act, 2019
- Medical practitioners are immune from a claim for damages on the ground of negligence, as the Ethics and Medical Registration Board has the power to regulate professional conduct and promote medical ethics.
- Medical practitioners, though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence.
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The Correct Option is D
Solution and Explanation
Medical practitioners can be held liable for negligence if they fail to meet the
standard of care expected in their profession.
The correct option is (D): Medical practitioners, though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence.
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Question: 4
Which of the following is a seminal judgment on medical negligence in India?
Which of the following is a seminal judgment on medical negligence in India?
Updated On: Nov 7, 2024
- M.C. Mehta v. Union of India, AIR 1987 SC 1086
- Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929
- Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
- All the above
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The Correct Option is C
Solution and Explanation
Jacob Mathew v. State of Punjab is a landmark case in India regarding the liability
of medical professionals for negligence.
The correct option is (C): Jacob Mathew v. State of Punjab, (2005) 6 SCC 1
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Question: 5
Now, a large number of private hospitals, nursing homes and clinics have emerged. In view of the good reputation they have built, patients go there for treatment in large numbers. These hospitals provide the medical treatment to those patients through doctors employed by them or by doctors who work there on some arrangement. These hospitals raise the bills for the fees and medical treatment provided to those patients by all such doctors. In such circumstances, if the patient suffers injury due to negligence of the doctors, then:
Now, a large number of private hospitals, nursing homes and clinics have emerged. In view of the good reputation they have built, patients go there for treatment in large numbers. These hospitals provide the medical treatment to those patients through doctors employed by them or by doctors who work there on some arrangement. These hospitals raise the bills for the fees and medical treatment provided to those patients by all such doctors. In such circumstances, if the patient suffers injury due to negligence of the doctors, then:
Updated On: Nov 7, 2024
- The hospitals would be equally liable for damages, on the principles of vicarious liability or on the principles analogous to vicarious liability, and these hospitals cannot shove off their responsibility and liability to pay compensation for the damages suffered by the patients due to the negligence of the doctors provided by these very hospitals
- The hospitals would not at all be held liable for damages.
- The hospitals would not at all be held liable for damages; but the doctors could not shove off their liability for negligence.
- Neither the hospitals nor the doctors are held liable, as no one can guarantee the desired result in the medical profession.
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The Correct Option is A
Solution and Explanation
Hospitals are vicariously liable for the negligence of doctors they employ or present
as their employees, as they are responsible for the care provided to patients.
The correct option is (A): The hospitals would be equally liable for damages, on the principles of vicarious liability or on the principles analogous to vicarious liability, and these hospitals cannot shove off their responsibility and liability to pay compensation for the damages suffered by the patients due to the negligence of the doctors provided by these very hospitals
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- The Hon’ble Supreme Court in the case of ‘Nil Ratan Kundu and another v. Abhijit Kundu’ 2008(3) Apex Court Judgements 232 (SC), while granting the custody to the maternal grandparents observed: In our judgement, the law relating to custody of a child is fairly well settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem in live in relationship and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, may bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favorable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable consideration. If the minor is old enough to form an intelligent preference or judgement, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
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