Negligence is the breach of a duty caused by the omission to do something which a reasonable man, would do, or doing something which a prudent and reasonable man would not do.

Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the medical professional owes the duty of observing ordinary care and skill, by which neglect the patient has suffered injury.

The definition of Medical Negligence 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. breach of the said duty; and
3. consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.

In the law of negligence, professionals such as doctors are included in the category of persons professing some special skill. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task.

Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A physician would not assure the patient of full recovery in every case.

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 practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect.

Judged by this standard, a professional may be held liable for negligence on one of two findings:

1. either he was not possessed of the requisite skill which he professed to have possessed, or,
2. he did not exercise, with reasonable competence in the given case, the skill which he did possess.

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 necessary for every professional to possess the highest level of expertise in that branch which he practices.

Written By: Dr. Sunil Khattri - MBBS, MS (General Surgery), LLB Practising Advocate at Supreme Court and National Consumer Disputes Redressal Commission New Delhi
Email: [email protected], Ph no: +91-9811618704