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How to Defend Medical Negligence Complaint (Argument 1)

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Prof (Dr) KK Aggarwal    27 November 2019

I (the doctor) have done nothing that any reasonable prudent doctor would not have done (act of commission) nor I have refrained from doing anything, which a reasonable prudent doctor would do (act of omission).

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

“39. 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:

  1. to continue to treat, except under certain circumstances when doctor can abandon his patient;
  2. to take reasonable care of his patient;
  3. 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 judgement and you take the risk that I may be wrong. I guarantee nothing.”
  4. 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.
  5. 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.”

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