Medical Negligence- Legal narrative and its prevention in Modern Medical Practice

Abstract

The noble Medical profession is increasingly getting caught in the quandary of changing times. The faux pas of doctors, accidental or otherwise, are subject to vituperative attacks by patients, media and is under intense scrutiny of Courts. The exclusion of Medical man from the time honored dictum ‘to err is human’ is a distinct reality these days. The judicial course, in cases of medical negligence, can be both criminal and civil law suit. Medical negligence is usually covered under laws of torts. Of late, Courts have been severe in awarding damages. The financial compensation in such cases is governed by principle of ‘Restitutio in integrum’. The repugnancy in award of huge compensation is the result of subjective approach, and not the objective methods, as followed by honorable Courts. Majority of times, doctors are themselves roily about the legal process. The legal process is dictated by judges who apply the legal principles of prudence and reasonableness. The doctrinal shift from ‘Bolam’ to ‘Bolitho’ and finally to ‘Montogomery’ is significant. It indicates changed times where patient empowerment is being given due consideration and their rights are being acknowledged by courts. The conduct of ‘Reasonable man’, as per Bolam case, is being replaced by paradigm of ‘Logical analysis’ and ‘Risk analysis’ by courts. Indian courts are also fast adopting this changed approach in accordance with Western judicial system. Doctors must acquaint themselves with finer points of jurisprudence in these cases.