|Year : 2010 | Volume
| Issue : 2 | Page : 183
Vicarious liability - Medicolegal status of anaesthesiologist
Mahadeva Nilaya, Training College Road, Behind K.C. Park, Dharwad - 580 008, Karnataka, India
|Date of Web Publication||24-May-2010|
Mahadeva Nilaya, Training College Road, Behind K.C. Park, Dharwad - 580 008, Karnataka
Source of Support: None, Conflict of Interest: None
|How to cite this article:|
Kumbar S. Vicarious liability - Medicolegal status of anaesthesiologist. Indian J Anaesth 2010;54:183
He who does an act through another is in law deemed to have done it himself. Liability for another's wrongful acts or omission can arise in following:
If an anaesthesiologist administers an improper anaesthetic at the surgeon's instance, it is he who is liable, not the surgeon. If the anaesthesiologist is questioned as to the agent or technique by surgeon, it is better that he should offer to withdraw from that case.
- when the liability is ratified,
- when the liability accrues by abetment,
- when the liability arises out of a special relationship.
Docrine of vicarious liability is not applicable to criminal liability. If a senior anaesthesiologist delegates his task to his junior, nursing staff or to any doctor, then for their wrongdoings, the senior anaesthesiologist is responsible. The hospital may be held directly responsible for faulty premises, equipments, inadequate or unqualified staff or other organisational errors, and also, the anaesthesiologist and surgeon. The only exception may be where the consultants use the premises only for their consultation. The hospital is liable for the negligence of the surgeon and it is no more a defence to say that the surgeon is not a servant employed by the hospital. Hospital is liable to the patient for the injury caused to him/her by the negligence of the surgeons, nurses, anaesthesiologist and the members of the hospital in the course of their work. If the staff of the hospital administered wrong injection supplied by the hospital pharmacist without properly reading the prescription, the hospital is held liable for the negligence of its pharmacist and the staff.
In surgical cases, usually the contract is between the surgeon and the patient only. The anaesthesiologist and other doctors may not be party. The anaesthesiologist has an implied contract with surgeon as far as the patient is concerned. Moreover, the surgeon may be vicariously liable for their negligence. However, if the patient arranges his own anaesthesiologist, a separate contract gets established between them and in such cases the surgeon is not liable for the negligence of the anaesthesiologist. Modern surgery is truly a team effort and the anaesthesiologist is registered and well-qualified professional. Usually, a common consent is mostly taken for both surgery and anaesthesia. But a separate consent for anaesthesia may be legally more sound and valid. The choice of an anaesthetic is primarily the anaesthesiologist's choice and the surgeon should not and cannot commit him to a specific anaesthetic approach.
| Cases|| |
Dr. P. Narasimharao V/s Gundamarappa Jayaprakash [1990(1) ACJ350AIR 1990 AP 207]. Patient underwent tonsillectomy and there was a delay on the part of the anaesthesiologist in noticing respiratory arrest which led to cardiac arrest and subsequently hypoxic brain damage occurred. AP High Court held that both surgeon and anaesthesiologist were negligent and passed a decree in favor of the plaintiff.
A paediatric surgeon operated on a child for hernia. Both the legs of the child were burnt by keeping extremely hot water bags during the operation. Here, the anaesthesiologist and surgeon and hospital were held vicariously liable.
| References|| |
|1.||Gupta R. Medico legal aspects of surgery. JAYPEE publications, New Delhi,first edition, p.111. |
|2.||Singh J. Medical negligence and compensation. Bharat law publications, Jaipur, 3rd edition reprint 2007, p.13-72.5,13-72.9,5-3.10. |
|3.||Shenoy G. Anesthesiologist and Law: Medical negligence. Ritanjan publications Bombay, 2002 edition pg 36 & 37. |
|4.||Jaiswal JVN. Doctors in the doc. Jaypee publications New Delhi, 1st edition 2004. p. 220&308. |