Law of Torts
The Forms of Medical Negligence: Diagnosis, Surgery, Medication, Monitoring, Infection and Records
The test does not change from one form of medical negligence to another. In every one of them the question is the same: did the practitioner act in accordance with a practice a responsible body of opinion would accept, and can that practice be logically defended? What changes is the stage of treatment at which the failure occurred, and the kind of evidence that proves it. This note takes the forms in the order in which they arise in a course of treatment, from diagnosis through surgery and medication to monitoring, infection control and the keeping of records, and notes where res ipsa loquitur does and does not help.
The forms by stage of treatment, and where res ipsa loquitur applies
1. Negligence in Diagnosis
The form | What must be shown |
Failure to diagnose | That the practitioner failed to take a proper history, to examine, or to order the test that a competent practitioner would have ordered on those symptoms |
Misdiagnosis | That the conclusion reached was one no competent practitioner would have reached on the material available. A wrong diagnosis reasonably arrived at is not negligence |
Delayed diagnosis | That the delay was itself a departure from proper practice, and that it caused or worsened the harm. Causation is the difficulty here |
Failure to refer | That the condition was beyond the practitioner's competence or facilities, and that a competent practitioner would have referred the patient on |
Failure to act on a result | That an abnormal result was available and was not acted on, or was not communicated to the patient |
- Diagnosis is where the Bolam protection is strongest, because diagnosis is a matter of clinical judgment on incomplete information, and reasonable practitioners frequently differ.
- Causation is the principal obstacle in delayed diagnosis claims. The plaintiff must show that earlier diagnosis would probably have changed the outcome, which in many conditions cannot be established.
- V. Krishnakumar v. State of Tamil Nadu, decided 1 July 2015, is the leading Indian illustration of a failure to follow an established screening protocol: a premature infant was not screened for retinopathy of prematurity within the critical window and went permanently blind.
2. Negligence in Surgery
- Wrong site or wrong patient surgery is the clearest case. It does not occur where the identification and marking protocols are followed, and res ipsa loquitur applies.
- A retained foreign object, a swab, sponge, needle or instrument left inside the patient, is likewise within the maxim: the count exists precisely to prevent it.
- Operating without the skill the procedure required, or without the necessary facilities and support, is a breach of the first of the three duties.
- Performing a procedure not consented to is a separate wrong: it is a trespass to the person, and Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1 is the leading Indian authority on it.
- Post operative care and follow up are part of the same episode of care, and a failure there is as actionable as a failure in the theatre.
- But an adverse outcome from a recognised risk is not negligence, however grave, where the procedure was properly indicated and properly performed.
3. Negligence in Medication and Anaesthesia
The form | The typical failure |
The wrong drug | Dispensing or administering a different drug from the one prescribed, or one contraindicated for the patient |
The wrong dose or route | A dose outside the recognised range, or intravenous administration of a drug meant for another route |
Failure to check an allergy or interaction | Not consulting the record, or not asking, where a known allergy or a contraindicated combination existed |
Failure to give a test dose | Where the accepted practice for that drug required one |
Anaesthesia: assessment | Failure to assess the patient's fitness, or to take a proper history before induction |
Anaesthesia: monitoring | Failure to monitor the patient during the procedure, or to have resuscitation equipment available and working |
Administration by an unqualified person | As in Spring Meadows Hospital, where a nurse administered an injection on her own initiative |
4. Negligence in Monitoring and Nursing
- A failure to monitor a patient whose condition required it, particularly after surgery or after the administration of a drug with known risks.
- A failure to respond to a deteriorating patient, or to summon senior help in time. Bolitho arose from exactly this.
- A failure to act on an abnormal observation or result, or to record and communicate it at handover.
- Inadequate staffing or an unsafe nurse to patient ratio is a failure of the hospital rather than of the individual, and is dealt with as corporate liability in TORT 042.
- Spring Meadows Hospital and Another v. Harjol Ahluwalia, (1998) 4 SCC 39 is the standing Indian example: a nurse administered an injection of Lariago to a child on her own, cardiac arrest followed, and the child was left in a vegetative state.
5. Infection, Transfusion and Records
- Hospital acquired infection is actionable where it arose from a failure of sterilisation, of hygiene, or of infection control protocol. It is not actionable merely because an infection occurred, since infection may follow despite proper precautions.
- The plaintiff must therefore identify the failure, and this is where inspection records, sterilisation logs and protocol documents become decisive.
- Blood transfusion negligence covers transfusion of the wrong group, the use of untested or improperly stored blood, and transfusion transmitted infection. Wrong group transfusion attracts res ipsa loquitur, since the cross matching procedure exists to prevent it.
- A failure to maintain proper medical records is itself a deficiency in service.
- And it has a decisive evidential consequence. Where records are not maintained, or are not produced, the court may draw an adverse inference against the party who should have had them. In practice this often determines the case, because the defendant is deprived of the very material that would have rebutted the inference of negligence.
6. Res Ipsa Loquitur in Medical Cases
Where it applies | Where it does not |
A swab, sponge or instrument left inside the patient | A known complication of a properly performed procedure |
Surgery on the wrong site or the wrong patient | An outcome medicine cannot guarantee |
A burn from equipment or a diathermy pad | A condition that would have developed in any event |
Transfusion of the wrong blood group | Treatment involving several independent practitioners, where control was not exclusive |
A fall from an operating table or trolley | Any case where the facts are fully known and the court can decide on the evidence |
- The courts apply the maxim cautiously in medicine. Medicine is not an exact science, a bad outcome may follow perfect care, and a maxim applied loosely would make every unsuccessful treatment prima facie negligent.
- Where it does apply, the absence of records is fatal to the defendant, because he cannot then explain how the accident happened without negligence.
7. Causation Remains the Real Battleground
⚠ A proved breach is only half the case In practice the greater number of medical negligence claims fail not on breach but on causation. A patient who was already gravely ill must show that the breach made a difference to the outcome, and in many conditions the evidence cannot establish that on the balance of probabilities. Barnett v. Chelsea and Kensington Hospital is the standing illustration: the casualty officer plainly failed in his duty, and the patient would have died of arsenic poisoning in any event. Bolitho failed on the same ground. The lesson for a claim is that the medical evidence must address two separate questions, what ought to have been done and what difference it would have made, and that the second is usually the harder. It is also why loss of a chance has been so contested: where the breach reduced the patient's prospects without probably causing the outcome, the ordinary rules give him nothing. |
8. The Position Stated Shortly
1. The test is the same at every stage: did the practitioner act in accordance with a practice a responsible body would accept, and can it be logically defended?
2. In diagnosis, the forms are failure to diagnose, misdiagnosis, delayed diagnosis and failure to refer, and a wrong diagnosis reasonably reached is not negligence.
3. In surgery, wrong site surgery and a retained foreign object attract res ipsa loquitur, and performing an unconsented procedure is a trespass to the person.
4. In medication and anaesthesia, the forms are the wrong drug, dose or route, failure to check allergies, and failure to assess or monitor the patient.
5. In monitoring, the forms are failure to observe, failure to respond to deterioration, and failure to act on an abnormal result.
6. Hospital acquired infection is actionable where a failure of sterilisation, hygiene or protocol is identified, and not merely because infection occurred.
7. Transfusion of the wrong blood group attracts res ipsa loquitur.
8. A failure to maintain proper records is itself a deficiency, and permits an adverse inference that often decides the case.
9. Res ipsa loquitur is applied cautiously in medicine, and never to a known complication of a properly performed procedure.
10. Causation is the real battleground: the plaintiff must show not only the breach but that it made a difference to the outcome.