Vicarious Liability In Medical Negligence | law journals
Abstract
Vicarious liability in medical negligence is a growing concept in India and most of the jurisprudence for the same comes from either older United Kingdom cases or the cases of the different State Supreme Courts in the United States of America. As more cases of medical injuries come before the Indian courts, the judiciary is often helpless to tackle the same in the light of lack of proper legislations as well as jurisprudence in this regard.
Through this paper, we will attempt to understand the basic and relevant terms such as medical negligence; vicarious liability; duty of care; et al. that will help us understand the nuances of this topic better. This research paper will analyze the meaning of medical negligence and vicarious liability independently in brief and focus on what vicarious liability means in terms of medical negligence.
Furthermore, this paper will dwell into the various doctrines related to vicarious liability in medical negligence cases that have developed in courts in different jurisdictions over the years. For a better understanding of the topic, we will look at the position of vicarious liability in medical negligence in other jurisdictions, namely the United States of America and South Africa before we study the relevant case laws in India that have developed whatever little jurisprudence that exists in India
Introduction
The field of medical science has grown many folds in the last many few decades, and in the process, the quantity of stakeholders involved has also rapidly increased. However, the one constant challenge has been the possibility of medical professionals being negligent in the treatment of their patients. Since the inception of medical science, the chances of medical injuries to patients have always existed, but as the law has developed in compliment to the societal growth, the impact of the same is visible on the field of medical science.
Medical negligence has been a constantly developing field of jurisprudence in the 20th and 21st century, the aspect of vicarious liability is a relatively newer aspect of the same. As laws develop, so should the application of said laws in the complex technical fields as well. This paper dwells into the prominent legal theories of vicarious liability in cases of medical negligence cases that have developed in different jurisprudences and further analysis the position of the same in the Indian context through relevant case laws.
Research Methodology
This paper is an analysis of the different theories and doctrines in the medical law jurisprudence to understand the position of vicarious liability in cases of medical negligence in India. The researcher has focused on secondary sources of data including but not limited to books, law journals and other research articles and research papers, online blogs, legislation enacted by the parliament and commentaries of such legislations and case laws.
Medical Negligence And Vicarious Liability
Negligence is a well-established wrong in many areas of law such as torts, criminal law under the Indian Penal Code, the Indian Contracts Act, et al. Negligence happens when the following three ingredients are satisfied:
a. The defendant has a duty of care towards the plaintiff;
b. There is a breach of said duty of care; and
c. The breach causes damage to the plaintiff
When all three of the above are satisfied, negligence is established in law, and the plaintiff or victim may seek relief in terms of damages from the defendant.
Medical Negligence
For many years the medical fraternity has played a crucial and irreplaceable role in the welfare of the society, and the same hardly be contradicted by anyone. The need for medical professions to treat acute as well as chronic diseases; perform small and big surgeries; et al. is a basic one. Doctors and medical professions play a huge role in our lives and they train extremely hard for many years to gain expertise in their field to serve us.
However, it is a common understanding that even doctors and medical professions can make mistakes or be negligent in their conduct. Often that can result in extremely dangerous and harmful consequences for the patient and their families. Approximately 52 lakh cases of medical injuries are reported annually in India, out of which close to 1 lakh patients lose their lives because of medical negligence on part of the healthcare professional. (Asthana, 2009)
The Latin maxim of ubi jus ibi remedium which means that where there is a right there is a remedy, dictates that whenever a person has a legal right violated, they shall be compensated for the same. The right to healthcare is a well-established legal right in law, especially when you are paying a certain sum to avail the services of a professional, therefore doctors and other healthcare professionals shall also be held to a certain standard of conduct which they shall not violate.
Violation of the same must result in punitive consequences for the professions. This in terms of medical services can be understood to be Medical Negligence. This term can at many times be used as Medical Malpractice as well. To find one single definition to explain medical negligence is difficult however it may be understood to be improper or unskilled treatment of a patient, which involves medical negligence on the part of the healthcare professional.
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