History of contract law Roman law contained provisions for torts in the form of delictwhich later influenced the civil law jurisdictions in Continental Europebut a distinctive body of law arose in the common law world traced to English tort law.
The punishment is three months imprisonment or fine of Rs. The punishment can be upto six months of imprisonment or fine upto Rs. Even where gross negligence is alleged, a prima facie case must be established before a magistrate at the first instance as was pointed out in Dr. Smt Rahimbi Shaikh Madar  It is necessary to observe that in cases where a professional is involved and incases where a complainant comes forward before a Criminal Court and levels accusations, the consequences of which are disastrous to the career and reputation of adverse party such as a doctor, the court should be slow in entertaining the complaint in the absence of the complete and adequate material before it.
It is always open to the learned magistrate to direct an enquiry through the police so that all relevant aspects of the case are looked into before process is issued.
The establishment of a prima facie case, therefore, indicates that on the face of the record all ingredients that would constitute the commission of an offence are before the court.
Where there exist serious lacunae in the case made out and where the possibilities and probabilities of an adverse conclusion are remote, it would not be justified in holding that a prima facie case has been made out.
So far so good. In addition to the ingredients of civil negligence for establishing criminal negligence …it shall have to be found that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent…Where negligence is an essential ingredient of the offence the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment….
The Supreme Court also laid down guidelines for prosecuting doctors: A private criminal complaint should not be entertained unless the complainant has produced prima facie evidence in the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence.
The investigating officer, before proceeding against a doctor, should obtain an independent medical opinion preferably from a doctor in government service qualified in that branch of medical practice.
The accused doctor should not be arrested in a routine manner unless his arrest is necessary for furthering investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor will abscond This judgment in fact amounts to a stretched interpretation of the words of the legislation and placing doctors on a relatively higher pedestal when the law itself does not make any such distinction.
Jurisdiction of Consumer Courts Medical negligence gives rise to civil and criminal liability. We have already mentioned that as regards civil wrongs, an aggrieved person can claim compensation either through a civil suit or a complaint lodged with consumer forum.
Since the enactment of Consumer Protection Act, there has been a significant rise in medical negligence cases being filed. In one sense, the passing of this law has given a boost to consumers for approaching courts in respect of negligence. Before we go into substantial aspects of medical negligence it is important to see how the Courts have interpreted the Consumer Protection Act and its jurisdiction.
Doctors have raised a number of concerns regarding the applicability of Consumer Protection Act. Wide ranging issues from applicability of the Act to medical practitioners, the nature of medical services which would be covered by the Act, the nature of consumers i.
Since this is the law most used by patients and their relatives, it becomes important to first see whom it applies to. For quite some time after the passage of the Consumer Protection Act, furious debate was raging whether it at all applies to doctors, hospitals and nursing homes and if so under what situations.
The Court held that proceedings under the Consumer Protection Act are summary proceedings for speedy redressal and the remedies are in addition to private law remedy. The issue was whether patients are consumers under the Consumer Protection Act and could they claim damages for injury caused by the negligence of the doctor, hospital or nursing home.
Apart from submitting that patients could not be classified as consumers under the Consumer Protection Act, the Medical Association argued the following points that are briefly reproduced: The District Forum comprises of President who is or was a District Judge and the other two members who shall be persons having adequate knowledge or experience of, or having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration.
Similarly State Commission and National Commission comprise of two non-judicial members who are concerned with economics, law, commerce, accountancy, industry, public affairs or administration, while the President shall be a person who is or was a judge of a High Court and Supreme Court, respectively.
It was submitted that as the members of the Forum are not qualified to deal with medical malpractice claims medical practitioners should be exempted from the ambit of the Act. This is contrary to the purpose of summary proceedings involving trial by affidavits, which is to provide speedy results.
Hence Consumer Forum should not adjudicate medical malpractice cases. The Supreme Court observed that all services are included other than those that are provided for free or under a contract of service.
Section 14 enumerates the relief that can be granted for deficiency in service. Sub-section 1 d provides compensation for any loss or injury suffered by a consumer due to negligence of the opposite party. A determination of deficiency in services has, therefore, to be made by applying the same test as is applied in an action for damages for negligence.
The test is the standard of medical care a reasonable man possessing same skills and expertise would employ under same circumstances.
A medical practitioner need note Exhibit extraordinary skills. Also as person who is well versed in law and has considerable judicial or legal experience heads all the forum, it will ensure that the deliberation on cases will be guided by legal principles.Legal Services India's Law Library is the largest free online collection of laws and regulations, the Library is hailed as the Most comprehencive place for .
Medical Negligence Introduction This Chapter aims to discuss the following What is meant by medical negligence What are the available remedies for victims of me. Describe Vicarious Liability in the context of a basis of liability (Tort Law) The liability of an employer to compensate a defendant for harm caused by an employee.
If an employee commits a negligent act in the scope of his/her employment, the employer will be jointly liable to the plaintiff for losses. In the context of law, a collection of laws, for example, the Differences between actions in Civil La Burden of proof- Civil law preponderance of evidence.
Sec. Action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of. In criminal law, intent is one of three general classes of mens rea necessary to constitute a conventional, as opposed to strict liability, crime.
A more formal, generally synonymous legal term is scienter: intent or knowledge of wrongdoing.