The patient was not getting cured. Can this be termed as medical negligence? |

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Medico Legal Corner

The patient was not getting cured. Can this be termed as medical negligence?

eMediNexus, 05 December 2021
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#Multispeciality

A doctor can never give 100% guarantee about a treatment or surgery. The only assurance a doctor can give is that he possesses the requisite skill in that branch of profession which he is practising and while performing the task entrusted to him he would exercise his skill with reasonable competence.The Hon’ble Supreme Court has duly held in various judgments that no guarantee is given by any doctor or surgeon that the patient would be cured.In one such matter titled as “P. B. Desai ...

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Dr seeri kotresh

excellant principles that one should follow in our daily routine

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06 December - 19:54hrs | View Replies()
Dr Merchant Mohamed salim

Doctor agrees to do the best at all times and for all patients.

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06 December - 15:41hrs | View Replies()

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Medico Legal Corner

The patient was not getting cured. Can this be termed as medical negligence?

eMediNexus, 05 December 2021
#Multispeciality

The Hon’ble Supreme Court has duly held in various judgments that no guarantee is given by any doctor or surgeon that the patient would be cured.

In one such matter titled as “P. B. Desai versus State of Maharashtra, AIR 2014 SC 795,” the Hon’ble Apex Court has held that:

“It is not necessary for us to divulge this theoretical approach to the doctor-patient relationship, as that may be based on model foundation. Fact remains that when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief:

a. to continue to treat, except under certain circumstances when doctor can abandon his patient;

b. to take reasonable care of his patient;

c. to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available.

There is an implied contract between the doctor and patient where the patient is told, in effect, “Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing.”-

d. Not to undertake any procedure beyond his control: This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating a complicated case.

e. Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.”

In another matter titled “Malay Kumar Ganguly vs Sukumar Mukherjee & amp; Ors. AIR 2010 SC 1162,” the Hon’ble Supreme Court of India has held that:

“INDIVIDUAL LIABILITY OF THE DOCTORS There cannot be, however, by any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following:

No guarantee is given by any doctor or surgeon that the patient would be cured.
The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.
Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.
Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.

Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.”

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