Professional negligence is defined as absence of reasonable care and skill or wilful negligence of a medical practitioner in the treatment of a patient, which causes bodily injury or death of the patient. Negligence is defined as doing something that one is not supposed to do or failing to do something that one is supposed to do.

CRIMINAL NEGLIGENCE: The question of criminal negligence may arise:

When a doctor shows gross absence of skill or care during treatment resulting in serious injury to or death of the patient, by acts of omission or commission.
When a doctor performs an illegal act.
When an assaulted person dies, the defence may attribute. The death to the negligence or undue interference in the treatment of the deceased by the doctor.

Conditions to be satisfied: Criminal negligence occurs if any one of the following are satisfied:

Indifference to an obvious risk of injury to health,
Actual foresight of the risk, but continuation of the same treatment,
Appreciation of the risk and intention to avoid it, but showing high degree of negligence in the attempted avoidance,
Inattention or failure to avoid, a serious risk which went beyond mere inadvertence in respect of an obvious important matter.

Occurrence: Criminal negligence occurs when the doctor shows gross lack of competence, or gross inattention or inaction, gross recklessness or gross negligence in the selection and application of remedies. Most of such cases are associated with drunkenness or with impaired efficiency due to the use of drugs by doctors. Sec. 106. (1) BNS deals with criminal negligence. Sec. 106. (1) BNS - Causing death by negligence: Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

Examples: (1) Amputation of wrong finger or operation on wrong limb or wrong patient. (2) Leaving instruments, tubes, sponges or swabs in abdomen. (3) Grossly incompetent administration of a general anaesthetic by a doctor addicted to the inhalation of anaesthetic. ( 4) Gross mismanagement of the delivery of woman especially by a doctor under the influence of drink or drugs. (5) Performing criminal abortion. (6) Administration of a wrong substance into the eye causing loss of vision. (7) Death resulting from an operation or injection of any drug producing anaphylaxis by a quack is considered criminal negligence.

CIVIL NEGLIGENCE: The question of civil negligence arises:

When a patient or in case of death, any relative brings suit in a civil Court for getting compensation from his doctor, if he has suffered injury due to negligence.
When a doctor brings a civil suit for getting his fees from the patient or his relatives, who refuse to pay the same alleging professional negligence.

Elements of negligence: Liability for negligence arises if the following conditions are satisfied:

Duty: Existence of a duty of care by the doctor.
Dereliction: The physician must conform to the standard of a "prudent physician" under similar circumstances. The failure on the part of the doctor to maintain applicable standard of care and skill.
Direct causation: The failure to exercise a duty of care must lead to damage. The patient must show that a reasonably close and causal connection exists between the negligent act or omission and the resulting injury without any intervening cause. This is referred to as legal cause or proximate cause.
Damage: The damage should be of a type that would have been foreseen by a reasonable physician.

Burden of proof: The patient should prove all four elements of negligence by a preponderance of the evidence.

THERAPEUTIC MISADVENTURE: Misadventure is of three types:

Therapeutic(when treatment is being given).
Diagnostic(where diagnosis only is the objective at the time).
Experimental(where the patient has agreed to serve as a subject in an experimental study).

Therapeutic misadventure is a case in which an individual has been injured or had died due to some unintentional act by a doctor or agent of the doctor or the hospital. Almost every therapeutic drug and every therapeutic procedure can cause death. Injection of serum, antibiotics, etc. may cause anaphylaxis in sensitive persons. A physician is not liable for injuries resulting from adverse reaction to drug unless some negligence on his part contributed to cause the injury. Ignorance of the possibility of a reaction or continuation in the prescribing of a drug with adverse reaction amounts to negligence.

Dichotomy or fee splitting – doctor should not engage himself in receiving or giving commission or other benefits to a fellow doctor. Taking or giving such commission is referred as dichotomy. It amounts for professional misconduct, not negligence.

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