The tort of negligence is committed when a duty of care is owed to a person and breached

and consequential damage in the form of infringement of legal right takes place. Negligence
may be defined as the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would not
do. There are three key elements which need to be proved in order to establish a tort of
negligence:-

1. The defendant owed a duty of care to the plaintiff.

2. The defendant breached that duty of care.
3. A legal harm of foreseeable kind had followed as a consequence to that breach of
care.

Medical Negligence

A doctor when consulted by a patient owes him certain duties, namely,

(a) a duty of care in deciding whether to undertake the case;

(b) a duty of care in deciding what treatment to give; and
(c) a duty of care in the administration of that treatment.

A breach of any of those duties gives a right of action for negligence to the patient. Medical
malpractice is defined as any act or omission by a physician during treatment of a patient that
deviates from accepted norms of practice in the medical community and causes an injury to
the patient.

The patient alleging medical malpractice must generally prove four elements or legal
requirements to make out a successful claim of medical malpractice. These elements include:
(1) the existence of a legal duty on the part of the doctor to provide care or treatment to the
patient; (2) a breach of this duty by a failure of the treating doctor to adhere to the standards
of the profession; (3) a causal relationship between such breach of duty and injury to the
patient; and (4) the existence of damages that flow from the injury such that the legal system
can provide redress.

Every person who enters into a learned profession undertakes to bring to the exercise of a
reasonable degree of care and skill.

Thus, every medical practitioner owes following duties to his patients:-

1. To possess the medical knowledge required of a reasonably competent medical

practitioner (health care provider) engaged in the same specialty,
2. To possess the skills required of a reasonably competent health care practitioner
engaged in the same specialty,
3. Exercise the care in the application of that knowledge and skill to be expected of a
reasonably competent health care practitioner in the same specialty
 4. Use the medical judgment in the exercise of that care required of a reasonably
competent practitioner in the same medical or health care specialty.

The required standard of care

While deciding whether a breach of duty by a medical practitioner or by a medical care

provider has occurred, the patient has to invoke the concept of standard of care. The standard
of care generally refers to that care which a reasonable, similarly situated professional would
have provided to the patient. This standard is usually established by means of expert witness
testimony. In the case of a medical man, negligence means failure to act in accordance with
the standards of reasonably competent medical men at the time. Some breaches of the
standard of care are so egregious that expert testimony is not needed. This concept is captured
in the legal term called res ipsa loquitur. In such cases, the legal proceeding is abbreviated
and the jury can proceed to determining damages since the breach of duty is plainly obvious.

The standard of care required varied with context. In the case of Knight v Home Office 1, it
was said that the practices in a prison hospital cannot be expected to be at par with the
practices in psychiatric hospital outside the prison. As such the prison authorities cannot be
held liable in medical negligence merely because the standard of care in the prison hospital
falls below that in a psychiatric hospital.

However, the failure to observe the required standard of care must also be coupled with some
injury to the patient to successfully establish a claim of medical malpractice or medical
negligence. The injured plaintiff must show a direct relationship between the alleged
misconduct and a subsequent injury. Alternatively, the patient can show a legally sufficient
relationship between the breach of duty and the injury; this concept is referred to as
proximate causation.

In order to overcome the hurdle of ascertaining the required standard of care, the courts have
resorted to the Bolam test established in the case of Bolam v. Friern Hospital Management
Committee- (1957) 2 All ER- A doctor is not negligent if he is acting in accordance with such
practice accepted as proper by a responsible body of medical men skilled in that particular
art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with
such a practice, merely because a body of opinion takes a contrary view. At the same time it
does not mean that a medical man can obstinately and pig headedly carry on with some old
technique if it has been proved to be contrary to what is really substantially the whole of
informed medical opinion

Defences

When a claim of medical malpractice is brought against a medical practitioner, the individual
or entity against whom the claim is made will be judged on. a few aspects related to the care
they delivered, which include their level of competence and professionalism, the care they

1 [1990] 3 All ER 237

provided, and how these elements compare to the level of training and experience they have
had. If the level of care given to the patient is not comparable, or does not meet the standard
of care provided by other medical professionals, the claim may be actionable.

Medical Malpractice, being a form of negligence, has viable defences against an action
instituted. These may in defences like the patient himself being negligent, he himself failing
to mitigate his own harm or damage. Other than that, defences like that of informed consent
are also available whereby the patient has full knowledge of and voluntarily assumes any risk
of complication or an untoward effect. Also there may be cases where the alleged harm or
damage was unavoidable and beyond the control of the practitioner. In such cases harm or
damage occurs despite the reasonable care being taken by the practitioner and as such he
cannot be made liable for the harm caused. Also, the doctor cannot be made liable when the
patient himself had failed to discuss all relevant information with the doctor and something
important had not been brought to his notice. No negligence can be attached to the conduct of
the practitioner when the patients condition has not been worsened due to the alleged
negligence of the doctor.

In the case of Sidaway v Governors of Bethlem Royal Hospital 2, the plaintiff underwent an
operation which had an inherent risk of paralysis but of which she was not informed of at the
time of consultation. The risk unfortunately materialized. In a suit filed for damages, the
plaintiff contented that she would have never agreed to undergo the surgery had she been
informed of the risk. Her claim however failed as the court held that it would be undesirable
and unrealistic to draw the suggested distinction in the context of the doctors overall duty to
care for his patient and expressly affirmed the applicability of Bolam test to aleegations of
negligence in the context of the doctor patient relationship generally.

2 [1985] AC 871