Negligence implies absence of intention to cause the harm complained of. It means careless or unreasonable conduct. But merely unreasonable conduct without damage is not actionable though it may be a punishable offence. Such conduct when followed can cause harm to another gives rise to liability for negligence.
According to Winfield, “Negligence as a tort is the breach of the legal duty to take care which result in damage, undesired by the defendant, to the plaintiff.”
This definition involves three constituents of negligence:
1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty.
2. That the defendant committed the breach of the said duty.
3. That the plaintiff suffered consequential damage due to the breach of duty.
4. That the consequences were undesirable.
Every person who enters into a particular profession undertakes to bring to the exercise of it a reasonable degree of care and skill. 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. A medical professional does not assure his patient of the result.
A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what all, the person approaching the professional can expect. 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.
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties:
1. A duty of care in deciding whether to undertake this case.
2. A duty of care in deciding what treatment to give.
3. A duty of care in the administrating that treatment properly.
A breach of any of these duties gives a right of action for negligence to the patient.
Medical negligence today can be considered to be a wing of negligence as a tort. With the growing number of cases of medical negligence, it has acquired itself attention of the lawmakers. Recently there has been a major increase in the cases of gross medical negligence which calls for some immediate strict laws to be made in this regard.
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